HomeMy WebLinkAboutContract 1450-2 (11(161)
AMENDED AND RESTATED FRANCHISE
AGREEMENT
BETWEEN
CITY OF CATHEDRAL CITY
AND
BURR EC WASTE AND RECYCLING SERVICES, LLC
FOR
INTEGRATED SOLID WASTE
MANAGEMENT SERVICES
* * *
July 1,2020
La
I
AMENDED AND RESTATED FRANCHISE
AGREEMENT
BETWEEN
CITY OF CATHEDRAL CITY
AND
BURRTEC WASTE AND RECYCLING SERVICES,LLC
FOR
INTEGRATED SOLID WASTE
MANAGEMENT SERVICES
TABLE OF CONTENTS
Page
RECITALS 1
ARTICLE 1 2
DEFINITIONS 2
1.1 AB 341 2
1.2 AB 939 2
1.3 AB 1826 2
1.4 AFFILIATE 3
1.5 AGREEMENT 3
1.6 BILLINGS 3
1.7 BIN 3
1.8 BULKY ITEMS 3
1.9 CalRecycle 4
1.10 CAN 4
1.11 Cannabis Waste 4
1.12 CART(s) 4
1.13 CITY 4
1.14 CITY PREMISES 5
1.15 COLLECT/COLLECTED/COLLECTING/COLLECTION 5
1.16 COMMERCIAL 5
1.17 COMMERCIAL PREMISES 5
1.18 COMPANY 5
1.19 COMPANY COMPENSATION 5
1.20 CONSTRUCTION AND DEMOLITION("C&D")WASTE 6
1.21 CONTAINERS 6
1.22 CUSTOMER 6
1.23 DISPOSE/DISPOSED/DISPOSAL 6
1.24 DISPOSAL COST 6
1.25 DISPOSAL SITE 6
July 1,2020 i City of Cathedral City
1.26 DIVERT/DIVERTED/DIVERTING/DIVERSION 6
1.27 ENVIRONMENTAL FEE 6
1.28 ENVIRONMENTAL LAWS 7
1.29 FACILITY/FACILrFIES 7
1.30 FRANCHISE 7
1.31 FRANCHISE FEE 7
1.32 GREENWASFE 7
1.33 GROSS RECEIPTS 7
1.34 HAZARDOUS SUBSTANCE 8
1.35 HAZARDOUS WASTE 8
1.36 HOUSEHOLD HAZARDOUS WASTE("HHW") 8
1.37 ORGANICS WASTE 8
1.38 PERSON 9
1.39 PREMISES 9
1.40 RATE YEAR 9
1.41 RECYCLE/RECYCLING 9
1.42 RECYCLABLE MATERIAL(S) 9
1.43 REFUSE 9
1.44 RESIDENTIAL 10
1.45 ROLL-OFF Box 10
1.46 SB 1383 10
1.47 SOLID WASTE 10
1.48 STATE 10
1.49 TRANSFER STATION 10
1.50 TRANSFORMATION 10
1.51 UNIVERSAL WASTE 10
ARTICLE 2 11
GRANT AND ACCEPTANCE OF FRANCHISE 11
2.1 GRANT AND ACCEPTANCE OF FRANCHISE 11
2.2 EXCLUSIVE NATURE OF FRANCHISE 11
2.3 EFFECTIVE DATE 11
2.4 TERM OF AGREEMENT 12
2.5 CONDITIONS TO EFFECTIVENESS OF AGREEMENT 12
2.5.1 Accuracy of Representations 142
2.5.2 Absence of Litigation 142
2.5.3 Furnishing of Insurance and Bonds 12
2.5.4 Effectiveness of City Council Action 12
2.6 DELEGATION OF AUTHORITY 12
2.7 LIMITATIONS ON SCOPE OF FRANCHISE 13
2.8 CITY'S RIGHT TO DIRECT CHANGES 14
2.8.1 General 14
2.8.2 New Diversion Programs 14
2.8.3 City's Right to Acquire Services 15
2.9 OWNERSHIP OF SOLID WASTE 15
2.10 COMPANY STATUS 16
2.11 COMPANY AUTHORIZATION 16
2.12 ANNEXATIONS 16
2.13 MANDATORY SERVICE 16
July 1,2020 ii City of Cathedral City
ARTICLE 3 17
FRANCHISE,ENVIRONMENTAL&ADMINISTRATIVE FEES 17
3.1 FRANCHISE,ENVIRONMENTAL AND ADMINISTRATIVE FEES 17
3.1.1 Franchise Fee Amount 17
3.1.2 Environmental Fee Amount 17
3.1.3 Vehicle Impacts 17
3.1.4 Time and Method of Payment 17
3.I.5 Documentation of Fee Payments 18
3.2 OTHER FEES 18
ARTICLE 4 18
DIRECT SERVICES 18
4.1 COLLEC.IION SERVICES 18
4.2 DEI ERMINATION OF RESIDENTIAL COLLECTION METHOD 19
4.2.1 Homeowner Association Customers in Gated Communities 19
4.2.2 Individually Serviced Dwelling Units . 19
4.2.3 Apartment Complex Customers 19
4.3 AUTOMATED COLLECTION SERVICES 19
4.3.1 Automated Refi4se Services 20
4.3.2 Automated Curbside Recyclable Materials Collection 20
4.3.3 Automated Curbside Organics Waste Collection 20
4.3.4 Automated Cart Walk-in Service 21
4.4 MANUAL COLLECTION SERVICES 21
4.5 OTHER RESIDENTIAL SERVICES 21
4.5.1 Low Income Clean-up Assistance 21
4.5.2 On-Call Bulky Item Collection 21
4.5.3 Christmas Tree Collection Program 22
4.5.4 Used Motor Oil and Filter Recycling 22
4.5.5 Residential Organics Collection SB 1383 22
4.6 COMMERCIAL SERVICE 23
4.6.1 Refuse Bin Service 23
4.6.2 Cart Service 23
4.6.3 Temporary Bins and Roll-off Box Service 23
4.6.4 Commercial Recycling Program 24
4.6.5 Overflowing Commercial Containers and Enclosure Clean-Outs 25
4.6.6 Commercial Organics Program 25
4.6.7 Compactor Service 26
4.7 CITY SERVICES AND OTHER REQUIREMENTS 27
4.7.1 City Premises Collection 27
4.7.2 Illegal Dumping Collection Program 27
4.7.3 City Sponsored Events 28
4.7.4 C&D Waste Recycling 28
4.7.5 Document Shredding Program .••28
4.7.6 Sharps Recycling and Medication Disposal Program 29
4.7.7 Warning Notice 29
4.7.8 Marketing and Sale of Recyclable Materials 30
4.7.9 End Uses for Organics Waste.. . 30
July 1, 2020 iii City of Cathedral City
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4.7.10 Diversion Requirements 30
4.7.11 Development of Diversion Facility 30
4.7.12 Waste Characterization Studies 31
4.7.13 CNG Fueling Station Discount 31
4.8 OPERATIONS 31
4.8.1 Schedules 31
4.8.2 Vehicles 32
4.8.3 Containers 36
4.8.4 Litter Abatement 41
4.8.5 Personnel 41
4.8.6 Identification Required 42
4.8.7 Fees and Gratuities 42
4.8.8 Non-Discrimination 43
4.8.9 Street Sweeping Services 43
4.8.10 Change in Collection Schedule 43
4.8.11 Report of Accumulation of Solid Waste;Unauthorized Dumping 43
4.9 TRANSPORTATION OF SOLID WAs 1 E 44
4.10 DISPOSAL OF REFUSE 45
4.11 STATUS OF DISPOSAL SITE 45
4.12 RouTE AUDIT 45
4.13 SERVICE EXCEPTIONS;HAZARDOUS WASTE NOTIFICATIONS 47
4.13.1 Failure to Collect 46
4.13.2 Hazardous Waste Inspection and Reporting 47
4.13.3 Hazardous Waste Diversion Records 47
4.14 DISAs i ER PREPAREDNESS PLAN 47
4.15 DEDICATED ROUTES 48
ARTICLE 5 48
OTHER SERVICES 48
5.1 SERVICES AND CUSTOMER BILLING 48
5.1.1 Service Description 48
5.1.2 Billing 48
5.1.3 Review of Billings 50
5.2 CUSTOMER SERVICE 50
5.2.1 Office Hours 50
5.2.2 Complaint Documentation 51
5.2.3 Missed or Requested Pick-ups 51
5.2.4 Resolution of Customer Complaints 51
5.2.5 Government Liaison l 52
5.3 EDUCATION AND PUBLIC AWARENESS 52
5.3.1 General 52
5.3.2 Community Events 52
5.3.3 Field Representative 53
5.3.4 Recycling Coordinator 53
5.4 WASTE GENERATION/CHARACTERIZATION STUDIES 53
ARTICLE 6 54
COMPANY COMPENSATION AND RATES 54
July 1. 2020 iv City of Cathedral City
6.1 GENERAL 54
6.2 CHANGES IN SCOPE OF SERVICE 54
6.3 CPI-BASED CHANGE 55
6.4 DISPOSAL AND RECYCLE PROCESSING CHARGES 56
6.5 EXTRAORDINARY ADJUSTMENTS 56
6.6 SUPPORTING INFORMATION 57
6.7 GRANTS 56
6.8 PROP 218 COMPLIANCE 56
ARTICLE 7 58
REVIEW OF SERVICES AND PERFORMANCE 58
7.1 PERFORMANCE HEARING 58
ARTICLE 8 59
RECORDS,REPORTS AND INFORMATION REQUIREMENTS 59
8.1 GENERAL 59
8.2 RECORDS 59
8.2.1 General 59
8.2.2 Financial Records 60
8.2.3 Solid Waste,Recycling,and Organics Waste Service Records 60
8.2.4 CERCLA Defense Records 60
8.2.5 Disposal Records 61
8.2.6 Other Program Records 61
8.2.7 Scope and Cost of Audit 61
8.2.8 Payments and Refimds 61
8.3 REPORTS 62
8.3.1 Report Formats and Schedule 62
8.3.2 Monthly Reports 63
8.3.3 Quarterly Reports 63
8.3,4 Annual Report 64
8.3.5 AB 939 Reports 64
8.3.6 Financial Report 65
8.4 ADVERSE INFORMATION 65
8.4.1 Reporting Adverse Information 65
8.4.2 Failure to Report 66
8.5 RIGHT TO INSPECT'RECORDS 66
ARTICLE 9 66
INDEMNIFICATION,INSURANCE AND BOND 66
9.1 INDEMNIFICATION 66
9.2 HAZARDOUS SUBSTANCES INDEMNIFICATION 67
9.3 AB 939,AB341 AND AB 1826 INDEMNIFICATION AND GUARANTEE 68
July 1, 2020 v City of Cathedral City
I
9.4 INSURANCE 69
9.4.1 Minimum Scope of Insurance 69
9.4.2 Minimum Limits of Insurance 639
9.4.3 Deductibles and Self-Insured Retentions 70
9.4.4 Other Insurance Provisions 70
9.4.5 Acceptability of Insurers 71
9.4.6 Verification of Coverage 71
9.4.7 Contractors and Subcontractors 71
9.4.8 Required Endorsements 72
9.4.9 Other Insurance Requirements.. 73
9.5 FAITHFUL PERFORMANCE BOND 73
9.6 FORFEITURE OF PERFORMANCE BOND 73
9.7 PERFORMANCE SECURITY BEYOND SERVICE TERM 74
ARTICLE 10 74
CITY'S RIGHT TO PERFORM SERVICE 74
10.1 GENERAL 74
10.2 BILLING AND COMPENSATION TO THE CITY DURING THE CITY'S POSSESSION 75
10.3 CITY'S RIGHT TO RELINQUISH POSSESSION 75
10.4 CITY'S POSSESSION NOT A TAKING 75
10.5 DURATION OF THE CITY'S POSSESSION 76
ARTICLE 11 76
DEFAULT,REMEDIES AND LIQUIDATED DAMAGES 76
11.1 EVENTS OF DEFAULT 76
11.1.1 Fraud or Deceit 76
11.1.2 Insolvency or Bankruptcy 76
11.1.3 Failure to Maintain Coverage 76
11.1.4 Violations of Regulation 76
11.1.5 Failure to Perform 77
11.1.6 Failure to Pay 77
1I.1.7 Acts or Ommisions 77
11.1.8 False or Misleading Statements 77
11.1.9 Attachment 77
11.1.10 Suspension or Termination of Service 78
11.1.11 Failure to Provide Assurance of Performance 78
11.2 CRIMINAL ACTIVITY OF COMPANY 78
11.3 RIGHT TO TERMINATE UPON DEFAULT 78
11.4 LIQUIDATED DAMAGES 79
11.4.1 General 79
11.4.2 Service Performance Standards;Liquidated Damages for Failure to Meet Standards 79
11.4.3 Amount 83
11.4.4 Timing of Payment 83
11.5 EXCUSE FROM PERFORMANCE 83
11.6 ARBITRATION 84
11.7 ASSURANCE OF PERFORMANCE 85
0
July 1,2020 vi City of Cathedral City
ARTICLE 12 85
OTHER AGREEMENTS OF THE PARTIES 85
12.1 RELATIONSHIP OF PARTIES 85
12.2 COMPLIANCE WITH LAW 85
12.3 GOVERNING LAW 86
12.4 JURISDICTION 86
12.5 ASSIGNMENT 86
12.6 AFFILIATED COMPANIES 88
12.7 CONTRACTING OR SUBCONTRACTING 89
12.8 BINDING ON ASSIGNS 89
12.9 TRANSITION TO THE NEXT COMPANY 89
12.10 PARTIES IN INTEREST 90
12.11 WAIVER 90
12.12 COMPANY'S INVESTIGATION 90
12.13 CONDEMNATION 90
12.14 NOTICE 90
12.15 REPRESENTATIVES OF THE PARTIES 91
12.16 CITY FREE TO NEGOTIATE WITH THIRD PARTIES 91
12.17 COMPLIANCE WITH MUNICIPAL CODE 92
12.18 PRIVACY 92
12.19 COMPLIANCE WITH IMMIGRATION LAWS 92
12.20 PROPRIETARY INFORMATION,PUBLIC RECORDS 92
12.21 GUARANTEE OF COMPANY'S PERFORMANCE 93
12.22 ATTORNEY'S FEES 93
ARTICLE 13 93
MISCELLANEOUS AGREEMENTS 93
13.1 ENTIRE AGREEMENT 93
13.2 SECTION HEADINGS 93
13.3 REFERENCES TO LAWS AND OTHER AGREEMENTS 94
13.4 INTERPRETATION.... 94
13.5 AGREEMENT 94
13.6 SEVERABILITY 94
13.7 Ext•IIBrrs 94
13.8 NON-WAIVER PROVISION 94
Exhibits
1. Rate Schedule
2. Corporate Guarantee
3. Company Faithful Performance Bond
4. Notary Certification
July 1,2020 vii City of Cathedral City
RECITALS
This Amended and Restated Franchise Agreement("Agreement")is entered into this 1st day of
July, 2020, by and between the City of Cathedral City ("City") and Burrtec Waste and
Recycling Services,LLC ("Company").
WHEREAS,the Legislature of the State of California,by enactment of the California Integrated
Waste Management Act of 1989("AB 939")(California Public Resources Code Section 40000
et seq. ),has declared that it is in the public interest to authorize and require local agencies
to make adequate provisions for Solid Waste handling within their jurisdictions to meet the
goals and requirements of AB 939,AB 341 and AB 1826;
WHEREAS,pursuant to California Public Resources Code Section 49300 and 4950049500, the City
has determined that the public health, safety, and well-being require that an exclusive
franchise be awarded to a qualified company for the Collection, transportation, Recycling,
processing, and Disposal of Solid Waste and other services to meet the goals and
requirements of AB 939,AB 341 and AB 1826;
WHEREAS, Company has provided Solid Waste services to the City as Burrtec Waste and
Recycling,LLC. since 2006 and currently provides Solid Waste services to the City pursuant
to that certain Franchise Agreement between City of Cathedral City and Burrtec Waste and
Recycling Services,LLC for Integrated Solid Waste Management Services dated July 1,2010
and as amended by that certain First Amendment to Franchise Agreement dated July 13,
2011 (collectively the"Prior Agreement");
WHEREAS,the City Council of City has decided to continue its relationship with Company and
amend and restate the Franchise set forth in this Agreement, subject to the rights and
limitations of this Agreement;
WHEREAS, Company agrees to and acknowledges that it shall properly Dispose of all Solid
Waste Collected in the City pursuant to this Agreement;
WHEREAS, City and Company are mindful of the provisions of the laws governing the safe
Collection, transport,Recycling,processing and Disposal of Solid Waste, including AB 939,
AB 341 and AB 1826, the Resource Conservation and Recovery Act,and the Comprehensive
Environmental Response,Compensation and Liability Act("CERCLA");
WHEREAS, City and Company desire to leave no doubts as to their respective roles and to
memorialize that by entering into this Agreement,City is not thereby becoming an"arranger"
or a "generator" as those terms are used in CERCLA,and that it is Company,not City,who
is "arranging for" the Collection from residences in the City, transport for Disposal,
July 1,2020 1 City of Cathedral City
composting or other processing,and Recycling of municipal Solid Waste which may contain
hazardous substances;and further to confirm that as a material inducement to City entering
into this Agreement, Company has agreed to fully indemnify City in connection with any
claims, losses, liabilities, lawsuits or actions relating to the inadvertent or intentional
Collection, transportation and/or Disposal of hazardous materials that may occur in
connection with Company's performance under this Agreement;and
WHEREAS, City and Company (collectively, "Parties") hereto desire to enter into this
Agreement;
NOW,THEREFORE, in consideration of the premises above stated and the terms, conditions,
covenants and agreements contained herein, the Parties do hereby agree as follows:
ARTICLE 1
DEFINITIONS
Whenever any term used in this Agreement has been defined by the provisions of Section
6.04.020 of the Cathedral City Municipal Code or by Division 30, Part 1, Chapter 2 of the
California Public Resources Code, the definitions in the Municipal Code and the Public
Resources Code shall apply unless the term is otherwise defined in this Agreement, in which
case the definitions in this Agreement shall control.
Except as provided in Article 1, words beginning with lower case letters are being used with
their common ordinary meanings, not as defined terms. Otherwise, the following capitalised
words and terms shall have the following meanings:
1.1 AB 341
"AB 341" means Assembly Bill 341 from the 2011-2012 Regular Session of the California
Legislature (Chapter 476,Statutes 2011).
1.2 AB 939
"AB 939" means the California Integrated Waste Management Act of 1989 (California Public
Resources Code Section 40000 et seq.),as it may be amended from time to time.
1.3 AB 1826
"AB 1826" means Assembly Bill 1826 from the 2013-2014 Regular Session of the California
Legislature(Chapter 727,Statutes 2014).
July 1,2020 2 City of Cathedral City
1.4 Affiliate
"Affiliate" means all businesses (including corporations, limited and general partnerships and
sole proprietorships) which are directly or indirectly related to Company by virtue of direct or
indirect ownership interest or common management and shall be deemed to be"Affiliated with"
Company and included within the term "Affiliates" as used herein. An Affiliate shall include a
business in which Company owns a direct or indirect ownership interest, a business which has
a direct or indirect ownership interest in Company and/or a business which is also owned,
controlled or managed by any business or individual which has a direct or indirect ownership
interest in Company. For purposes of determining whether an indirect ownership interest
exists,the constructive ownership provisions of Section 318(a) of the Internal Revenue Code of
1986, as in effect on the date of this Agreement, shall apply; provided, however, that (i) "10
percent" shall be substituted for "50 percent" in Section 318(a)(2)(C) and in Section 318(a)(3)(C)
thereof; and (ii) Section 318(a)(5)(C) shall be disregarded. For purposes of determining
ownership under this paragraph and constructive or indirect ownership under Section 318(a),
ownership interest of less than ten percent(10%)shall be disregarded and percentage interests
shall be determined on the basis of the percentage of voting interest or value which the
ownership interest represents,whichever is greater.
1.5 Agreement
"Agreement" means this Franchise Agreement between the City and Company for the
Collection,transportation,Recycling,processing and Disposal of Solid Waste,and other services
related to meeting the goals and requirements of AB 939,including all exhibits and attachments,
and any amendments thereto.
1.6 Billings
"Billings" means any and all statements of charges,howsoever made, described or designated,
for services rendered pursuant to this Agreement.
1.7 Bin
"Bin" means a metal Container with hinged lids and wheels serviced by a front-end loading
truck with a capacity of 1.5 to 8 cubic yards.
1.8 Bulky Items
"Bulky Items" means Solid Waste that cannot and/or would not typically be accommodated
within a Cart, such as furniture (including chairs, sofas, mattresses); appliances (including
refrigerators, ranges, washers, dryers,water heaters, dishwashers, plumbing, small household
appliances and other similar items,commonly known as"white goods"); electronic equipment
July 1,2020 3 City of Cathedral City
(including stereos, televisions, computers and monitors,including laptops,VCRs, microwaves
and other similar items commonly known as"brown goods" and"e-waste"); Universal Waste;
and clothing. Bulky Items do not include car bodies or C&D Waste. Other items not specifically
included or excluded above will be Collected provided that they are not more than eight feet in
length, four feet in width, or more than 150 pounds. In the event a question ever arises as to
whether a specific item or category of items meets the definition of Bulky Items, City shall be
responsible to determine whether said definition shall apply,which determination shall be final
and binding on the Parties.
1.9 CalRecycle
"CalRecycle" shall mean the State of California Department of Resources Recycling and
Recovery, the department within the State Natural Resources Agency responsible for the
administration of the Integrated Waste Management Act of 1989, California Public Resources
Code Section 40000 et seq.("Act"),or any successor department or agency created or designated
for such purpose pursuant to the Act.
1.10 Can
"Can" means a Solid Waste receptacle provided by the Customer and serviced by manual
Collection.
1.11 Cannabis Waste
"Cannabis Waste"means waste that contains cannabis or cannabis products but is not otherwise
a Hazardous Waste, including, but not limited to, waste that contains cannabis that has been
made unusable and unrecognizable in the manner prescribed by 16 California Code of
Regulations Section 5054.
1.12 Cart(s)
"Cart" means a plastic Container with a hinged lid and wheels serviced by an automated or
semi-automated side-loading truck with a capacity of no less than 30 and no greater than 101
gallons.
1.13 City
"City" means the City of Cathedral City, a municipal corporation, and all the territory lying
within the municipal boundaries of the City as presently existing or as such boundaries may be
modified during the Term of this Agreement.
July 1, 2020 4 City of Cathedral City
1.14 City Premises
City Premises means any building, park or other site owned, leased, or used regularly and
significantly by City for public purposes and not operated as a Commercial enterprise.
1.15 Collect/Collected/Collecting/Collection
"Collect","Collected", "Collecting" and "Collection",in addition to the common meaning, refers
to taking physical possession of,transporting,and/or removing Solid Waste within or from the
City.
1.16 Commercial
"Commercial" refers to business activity of the type conducted at or for Commercial Premises,
as defined in the next paragraph.
1.17 Commercial Premises
"Commercial Premises" means Premises upon which business activity is conducted, including
but not limited to retail sales, services, wholesale operations, manufacturing and industrial
operations, but excluding Residential Premises upon which business activities are conducted
when such activities are permitted under applicable zoning regulations and are not the primary
use of the property. For purposes of this Agreement, Premises upon which the following uses
are occurring shall be deemed to be Commercial Premises: Assisted Living facilities,
Convalescent Homes, Dormitories, Extended Stay Motels, Group Residential facilities, Group
Care facilities,Hotels,and Motels.
1.18 Company
"Company" means Burrtec Waste and Recycling Services, LLC, a limited liability company
organized and operating under the laws of the State of California and its officers, directors,
employees, agents,contractors,and subcontractors.
1.19 Company Compensation
"Company Compensation" means the revenue received by Company from Billings and from
payment by City in return for providing services in accordance with this Agreement and any
amendments to this Agreement.
July 1,2020 5 City of Cathedral City
1.20 Construction and Demolition("C&D")Waste
"C & D Waste" means used or discarded construction and demolition materials removed from
a Premises during the addition to,renovation,construction or demolition of a structure.
1.21 Containers
"Containers" means any and all types of Solid Waste receptacles, including Cans, Carts, Bins,
and Roll-off Boxes.
1.22 Customer
"Customer" means the Person having the care and control of any Premises in the City who
receives Solid Waste Collection service from Company.
1.23 Dispose/Disposed/Disposal
"Dispose", "Disposed", or "Disposal" refers to the ultimate disposition, in full regulatory
compliance,of Solid Waste.
1.24 Disposal Cost
"Disposal Cost" means the portion of the fee charged to the Customer that represents the cost
of Refuse Disposal.
1.25 Disposal Site
"Disposal Site" mean a Facility utilized for Disposal.
1.26 Divert/Diverted/Diverting/Diversion
"Divert", "Diverted", "Diverting", and "Diversion" refers to Disposing of Solid Waste in such a
manner as to prevent material from being landfilled.
1.27 Environmental Fee
"Environmental Fee"means the fee paid by Company to the City to fund the City's costs of Solid
Waste management.
July 1, 2020 6 City of Cathedral City
1.28 Environmental Laws
"Environmental Laws"means all federal and state statutes,county,local and the City ordinances
concerning public health, safety and the environment including, by way of example and not
limitation, the Comprehensive Environmental Response, Compensation and Liability Act of
1980,42 USC§9601 et seq.; the Resource Conservation and Recovery Act,42 USC§6902 et seq.;
the Federal Clean Water Act, 33 USC §1251 et seq.; the Toxic Substances Control Act, 15 USC
§1601 et seq.; the Occupational Safety and Health Act, 29 USC §651 et seq.; the California
Hazardous Waste Control Act,California Health and Safety Code§25100 et seq.;the California
Toxic Substances Control Act, California Health and Safety Code §25300 et seq.; the Porter-
Cologne Water Quality Control Act, California Water Code §13000 et seq.; the Safe Drinking
Water and Toxic Enforcement Act, California Health and Safety Code §25249.5 et seq.; as
currently in force or as hereafter amended, and all rules and regulations promulgated
thereunder.
1.29 Facility/Facilities
"Facility" and "Facilities" refers to any station, operation, plant or site, owned or leased and
maintained, operated or used by Company for purposes of performing servicesunder this
Agreement.
1.30 Franchise
"Franchise"means the exclusive right granted by the City to provide Solid Waste services within
the City.
1.31 Franchise Fee
"Franchise Fee" means the fee paid by Company to the City,or retained by the City from service
fees remitted to the City,for the right to hold the Franchise granted by this Agreement.
1.32 Greenwaste
"Greenwaste"means leaves,grass,weeds,and wood materials from trees and shrubs(not more
than six (6) inches in diameter or 48 inches in length) and similar materials generated at the
Premises.
1.33 Gross Receipts
"Gross Receipts" means any and all revenues, receipts, or compensation in any form received
by Company or its subsidiaries, parent companies or other Affiliates of Company, for the
Collection and transportation of Solid Waste and all other services performed pursuant to this
July 1,2020 7 City of Cathedral City
Agreement, [in accordance with Generally Accepted Accounting Principles],including,but not
Customer fees for Collection of Solid Waste,without subtractingFranchise
to, monthly
limited
Fees,Environmental Fees or any other cost of doing business.
1.34 Hazardous Substance
"Hazardous Substance" shall mean any of the following: (a) any substances defined,regulated
or listed (directly or by reference) as "Hazardous Substances", "hazardous materials",
"Hazardous Wastes", "toxic waste", "pollutant" or "toxic substances" or similarly identified as
hazardous to human health or the environment, in or pursuant to (i) the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, 42 USC §9601 et
sec.("CERCLA");(ii)the Hazardous Materials Transportation Act,49 USC§1802 et seq.; (iii)the
Resource Conservation and Recovery Act, 42 USC §6901 et seq.; (iv) the Clean Water Act, 33
USC §1251 et seq.; (v) California Health and Safety Code §§25115-25117, 25249.8, 25281, and
25316;(vi)the Clean Air Act,42 USC§7901 et seq.;or(vii)California Water Code§13050;(b)any
amendments,rules or regulations promulgated thereunder to such enumerated statutes or acts
currently existing or hereafter enacted;and(c)any other hazardous or toxic substance,material,
chemical, waste or pollutant identified as hazardous or toxic or regulated under any other
applicable federal, state or local Environmental Laws currently existing or hereinafter enacted,
including, without limitation, friable asbestos, polychlorinated biphenyls, petroleum, natural
gas and synthetic fuel products, and by-products.
1.35 Hazardous Waste
"Hazardous Waste" means all substances defined as Hazardous Waste, acutely Hazardous
Waste, or extremely Hazardous Waste by the State of California in Health and Safety Code
§25110.02,§25115,and§25117 or in the future amendments to or recodifications of such statutes
or identified and listed as Hazardous Waste by the United States Environmental Protection
Agency ("EPA"), pursuant to the Federal Resource Conservation and Recovery Act (42 USC
§6901 et seg.), all future amendments thereto, and all rules and regulations promulgated
thereunder.
1.36 Household Hazardous Waste ("HHW")
"Household hazardous waste" or "HHW" means Hazardous Waste generated at Residential
Premises.
1.37 Organics Waste
"Organics Waste" means food waste, Green Waste, landscape and pruning waste,
nonhazardous wood waste, and food-soiled paper waste that is mixed in with food waste
July 1,2020 8 City of Cathedral City
1.38 Person
"Person" means any individual, firm, association, organization, partnership, corporation,
business trust,joint venture, the United States, the State of California, the County of Riverside,
town,city,or special purpose district.
i
i 1.39 Premises
"Premises" means any land, or building in the City where Solid Waste is generated or
accumulated.
1.40 Rate Year
"Rate Year" means the twelve month period from July 1 to June 30, for each year of the
# Agreement.
1.41 Recycle/Recycling
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"Recycle" or "Recycling" refers to any process by which materials which would otherwise
become Solid Waste are Collected (whether source-separated, co-mingled, or "mixed waste"),
separated and/or processed and returned to the economic mainstream in the form of raw
materials, products or materials or which are otherwise salvaged or recovered for reuse.
"Source-separated" refers to materials segregated at the Premises from other Solid Waste
generated at the site.
1.42 Recyclable Material(s)
"Recyclable Material(s)" means material that is source-separated so that the material can be
salvaged or recovered for reuse, or which has some potential economic value, and which is
t therefore set aside,handled,packaged,or offered for Collection in a manner different from other
Solid Waste.
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1 1.43 Refuse
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"Refuse" means putrescible and non-putrescible Solid Waste or debris,whether combustible or
non-combustible, excluding sewage, source-separated Organics Waste and Recyclable
1 Materials.
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July 1, 2020 9 City of Cathedral City
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1.44 Residential
"Residential" refers to Premises containing a dwelling or dwellings, including single-family,
multi-family and apartment dwelling units, irrespective of whether such dwelling units are
rental units or owner-occupied.
1.45 Roll-off Box
"Roll-off Box"means an open-top metal Container serviced by a roll-off truck with a capacity of
10 to 50 cubic yards.
1.46 SB 1383
"SB 1383" shall mean Senate Bill 1383 from the 2015-2016 Regular Session of the California
Legislature(Lara Chapter 395,Statutes 2016).
1.47 Solid Waste
"Solid Waste" means all putrescible and non-putrescible Refuse Cannabis Waste, garbage,
rubbish,Recyclable Material,and Organics Waste,and as otherwise defined in Public Resources
Code§40191.
1.48 State
"State" means the State of California.
1.49 Transfer Station
"Transfer Station" means a Facility used to receive, temporarily store and/or transfer Solid
Waste from smaller to larger vehicles for transport to a Disposal Site.
1.50 Transformation
"Transformation" means Division of Solid Waste by incineration, pyrolysis, distillation,
gasification,or biological conversion other than composting. "Transformation"does not indude
composting.
1.51 Universal Waste
"Universal Waste" means a category of Hazardous Wastes that includes batteries(rechargeable
and single use, except automobile batteries), fluorescent lamps and tubes, thermostats,
July 1,2020 10 City of Cathedral City
electronic devices (televisions, computer monitors, computers, printers, video cassette
recorders,cell phones,telephones,and radios),electrical switches(from chest freezers,pre-1972
clothes washers, sump pumps, electric space heaters, clothes irons, silent light switches,
automobile hood and trunk lights,and ABC brakes),pilot light sensors(found in gas appliances
such as stoves, ovens, clothes dryers, water heaters, furnaces, and space heaters), mercury
gauges (barometers, manometers, blood pressure, and vacuum gauges), mercury added
novelties (musical greeting cards, pre-1997 athletic shoes with flashing lights, mercury maze
games),mercury thermometers,and non-empty aerosol cans containing hazardous materials.
ARTICLE 2
GRANT AND ACCEPTANCE OF FRANCHISE
2.1 Grant and Acceptance of Franchise
Subject to the terms and conditions of this Agreement, the City hereby grants to Company a
Franchise to Collect,transfer,transport,Recycle,process,and Dispose of Solid Waste generated
in the City and which is to be offered to Company for Collection in accordance with this
Agreement.
Company hereby accepts the Franchise on the terms and conditions set forth in this Agreement.
2.2 Exclusive Nature of Franchise
During the Term of this Agreement, except as otherwise provided in Section 2.7 below, or as
may otherwise be provided by federal or state law, the rights granted to Company under this
Agreement shall be exclusive to Company. The City will not let any contract to, or enter into
any agreement with, any other Person for the performance of the services herein required to be
performed by Company.
The City shall protect Company's exclusive rights by proper ordinances, and by reasonable
enforcement of those ordinances. Should the City be required to take administrative, law
enforcement, or other legal action against any Person that infringes on Company's exclusive
rights,Company shall reimburse the City for its reasonable administrative,law enforcement,or
other legal costs related to any such action. Nothing herein shall preclude Company from taking
such legal action against third parties as it deems appropriate to protect the exclusive nature of
its Franchise.
2.3 Effective Date
The effective date of this Agreement shall be July 1,2020("Effective Date").
July 1,2020 11 City of Cathedral City
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2.4 Term of Agreement
The term of this Agreement shall be ten(10)years,commencing on the
Effective Date.On each anniversary of the Effective Date, the term shall automatically
be extended for an additional one (1)year, thereby restoring the term to a full Ten (10)
years,unless either party shall provide written notice to the other of its intent not to
extend the term,which notice shall be given not later than one hundred twenty (120) days
prior to the anniversary date.
2.5 Conditions to Effectiveness of Agreement
The obligation of the City to permit this Agreement to become effective and to perform its
undertakings provided for in this Agreement is subject to the satisfaction of each and all of the
conditions set out below,each of which may be waived in whole or in part by the City.
2.5.1 Accuracy of Representations
Representations and warranties made by Company throughout this Agreement are
accurate,true and correct on and as of the Effective Date.
2.5.2 Absence of Litigation
There is no litigation pending in any court challenging the award of this Franchise to
Company or the execution of this Agreement or seeking to restrain or enjoin its
performance.
2.5.3 Furnishing of Insurance and Bonds
Company has furnished evidence of the insurance and bonds required by Article 9.
2.5.4. Effectiveness of the City Council Action
The City's Resolution approving this Agreement shall have become effective pursuant to
California law prior to the Effective Date.
2.6 Delegation of Authority
The administration of this Agreement by the City shall be under the supervision and direction
of the Environmental Conservation Manager or other designee of the City Manager. The
actions of the City specified in this Agreement,unless otherwise stated,may be executed by the
Environmental Conservation Manager or the City Manager's designee.
July 1,2020 12 City of Cathedral City
2.7 Limitations on Scope of Franchise
The Franchise granted to Company shall be exclusive except as to the categories of Solid Waste
listed in this Section. The granting of this Franchise shall not preclude the categories of Solid
Waste listed below from being delivered to, Collected or transported by others; except that,
however,nothing in this Agreement is intended to or shall be construed to excuse any Person
from obtaining any authorization from the City which is otherwise required by law:
a) Recyclable Materials source-separated from other Solid Waste by the Customer and (i)
that is Collected at no cost to the Customer,(ii)sold by the Customer;or(iii)for which Customer
is otherwise compensated in a manner resulting in a net payment to the Customer;
b) Solid Waste,including Recyclable Materials and Organics Waste,which is removed from
any Premises by the Customer, and which is transported personally by the Customer of such
Premises(or by his or her full-time employee)to a processing or Disposal Site;
c) Recyclable Materials and Organics Waste which are source-separated at any Premises by
the Customer and donated to youth, civic, or charitable organizations), including containers
delivered for Recycling under the California Beverage Container Recycling Litter Reduction Act,
Section 14500,et.seq.,California Public Resources Code;
d) Property owners may self-haul their own Solid Waste, induding Recyclable Materials
and Organics Waste, when undertaking special projects or when the owner has excess waste
materials; however, property owners must maintain regular Solid Waste Collection service
through City's franchised hauler as mandated at Chapter 6.04 of the City's Municipal Code.
e) Organics Waste removed from Premises by a gardening, landscaping, or tree trimming
company utilizing its own equipment as an incidental part of a total service offered by the
company rather than solely as a hauling service;
f) C &D Waste that is incidentally removed by a duly licensed construction or demolition
company or by the City,where the licensed company utilizes its own equipment and employees;
g) Animal waste and remains from slaughterhouse or butcher shops for use as tallow;
h) By-products of sewage treatment,including sludge, sludge ash,grit and screenings;
i) Hazardous Waste and radioactive waste,regardless of its source;and
j) The casual or emergency Collection, removal, Disposal or Diversion of Solid Waste by
City officers or employees in the normal course of their employment
July 1,2020 13 City of Cathedral City
Company acknowledges and agrees that the City may permit other Persons besides Company
to Collect any or all types of the Solid Waste listed in this Section 2.7, including Recyclable
Materials,without seeking or obtaining approval of Company.
This grant to Company of an exclusive Franchise, right and privilege to Collect, transport,
process and Dispose of Solid Waste shall be interpreted to be consistent with state and federal
1 laws, as now existing and as adopted during the term of the Franchise, and the scope of this
exclusive Franchise shall be limited by current and future state and federal laws with regard to
Solid Waste handling, exclusive franchises, control of Recyclable Materials, Solid Waste flow
control, and related doctrines. In the event that future interpretations of current law, the
enactment of new law, or development of legal trends limit the ability of the City to lawfully
contract for the scope of exclusive Franchise services as specifically set forth herein, Company
agrees that the scope of this Agreement shall be limited to those services and materials for which
the City may lawfully grant a franchise and that the City shall not be responsible for any lost
profits claimed by Company as a result of such limitations to the scope of the Agreement. In
such an event,it shall be the responsibility of Company to minimize the financial impact upon
the cost to the Customer for all other services that may continue to be provided pursuant to the
terms of this Agreement.
2.8 City's Right to Direct Changes
2.8.1 General
The City may direct Company to perform additional services (including new Diversion
programs, etc.) or modify the manner in which it performs existing services or bills for
services. Pilot programs and innovative services which may entail new Collection
methods, different kinds of services and/or new requirements for Customers, and
alternative rate structures are included among the kinds of changes which the City may
direct. Company shall be entitled to an adjustment in its Company Compensation based
on its reasonable costs for providing such additional or modified services, as agreed
between the City and Company. If Company and the City cannot agree on terms and
conditions of such additional or expanded services within ninety (90) days from the date
when the City first requests Company to perform such services,Company acknowledges
and agrees that the City may permit Persons other than Company to provide such
services.
2.8.2 New Diversion Programs
Company shall present, within 30 days of a request to do so by the City, a proposal to
provide additional or expanded Diversion services. The proposal shall contain a
complete description of the following:
July 1. 2020 14 City of Cathedral City
a) Collection methodology to be employed (equipment,manpower, etc.);
b) Equipment to be utilized (vehicle number, types,capacity,age,etc.);
c) Labor requirements(number of employees by classification);
d) Type of materials Containers to be utilized;
e) Provision for program publicity/education/marketing;and
f) Projection of the annual financial results of the program's operations in an
operating statement format including documentation of the key assumptions underlying
the projections and the support for those assumptions.
2.8.3 City's Right to Acquire Services
Company acknowledges and agrees that the City may permit other Persons besides
Company to provide additional Solid Waste services not otherwise contemplated under
this Agreement. If pursuant to Section 2.8.1, Company and the City cannot agree on
terms and conditions of such additional or expanded Diversion services within ninety
(90)days from the date when the City first requests a proposal from Company to perform
such services,Company acknowledges and agrees that the City may permit Persons other
than Company to provide such services. In the event that City exercises its right to permit
third party Persons to provide such services,and if such a decision reduces or eliminates
Company's costs to provide Collection services as contemplated herein,Company agrees
to reduce its Billings proportionately.
2.9 Ownership of Solid Waste
Once Solid Waste is placed in Containers and properly placed at the designated Collection
location, ownership and the right to possession shall transfer directly from the Customer to
Company by operation of this Agreement. Subject to Company's objective to meet the source
reduction and Recycling goals which apply to the City and the City's right to direct Company
to process and Dispose of Solid Waste at a particular licensed Solid Waste Facility or to Dispose
of Solid Waste at a particular licensed Disposal Site, if and only if the City exercises such right
by providing specific written direction to Company, Company is hereby granted the right to
retain,Recycle,process,Dispose of,and otherwise use such Solid Waste,or any part thereof,in
any lawful fashion or for any lawful purpose desired by Company. Subject to the provisions of
this Agreement, Company shall have the right to retain any benefit resulting from its right to
retain, Recycle, process, dispose of, or reuse the Solid Waste, Organics Waste, and Recyclable
Materials which it Collects. Solid Waste,Organics Waste,and Recyclable Materials,or any part
July I,2020 15 City of Cathedral City
thereof, which is Disposed of at a Disposal Site or Sites (whether landfill, Transformation
Facility, Transfer Station or Processing Facility) shall become the property of the owner or
operator of the Disposal Site(s) once deposited there by Company. The City may obtain
ownership or possession of Solid Waste placed for Collection upon written notice of its intent to
do so,however,nothing in this Agreement shall be construed as giving rise to any inference that
the City has such ownership or possession unless such written notice has been given to
Company.
2.10 Company Status
E
Company represents and warrants that it is duly organized, validly existing and in good
standing under applicable laws. It is qualified to transact business in the State of California and
has the power to provide services as required by this Agreement.
2.11 Company Authorization
Company has the authority to enter into and perform its obligations under this Agreement The
Board of Directors or partners of Company (or the shareholders, if necessary) have taken all
actions required by law,Company's governing documents,or as may otherwise be required to
authorize the execution of this Agreement The individual signing this Agreement on behalf of
Company has authority to so bind and obligate Company. Company shall authorize one
employee for the City as a single point of contact for issues arising under this Agreement. City
may accept that this Company-designated employee's actions are taken on behalf of and with
the full approval of Company.
2.12 Annexations
1 '
This Agreement extends to any territory annexed to the City during the Term of this Agreement
except to the extent that Collection by Company within that annexed territory would violate the
provisions of Public Resources Code Section 49520. In such event,this Agreement shall become
effective as to such area at the earliest possible date permitted by law, and the City agrees that
it shall cooperate with Company to fulfill any requirement necessary for Company to serve the
annexed area consistent with this paragraph.
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2.13 Mandatory Service
It is understood and agreed that,as provided in Chapter 6.04 of the City's Municipal Code,trash
Collection service from the City's franchised hauler is a mandatory service for all Premises
within the City. City agrees to assist Company in enforcing the mandatory service requirements
set out in the City's Municipal Code as, in its sole discretion, the City deems reasonable and
necessary. It is the responsibility of Company to provide and maintain mandatory trash
$ Collection service that meets the City's approval.
July 1,2020 16 City of Cathedral City
ARTICLE 3
FRANCHISE, ENVIRONMENTAL &ADMINISTRATIVE FEES
3.1 Franchise,Environmental and Administrative Fees
3.1.1 Franchise Fee Amount
In consideration of the exclusive Franchise granted pursuant to this Agreement,
Company shall pay to the City a Franchise Fee equal to twelve percent (12%) of
Company's Gross Receipts collected under this Agreement net of(i)Environmental Fees
and (ii) revenue from the sale of Recyclable Material. Company shall remit to the City
said Franchise Fee in the manner provided at section 3.1.4 below.
3.1.2 Environmental Fee Amount
Company shall pay to the City the Environmental Fee specified in the attached Rate
Schedule(Exhibit 1),and as it may be amended from time to time,for each ton of Refuse
Collected from within the City. Company shall remit to the City this Environmental Fee
according to section 3.1.4 below. The Environmental Fee may be adjusted by the City,
and in such case, rates charged to Customers shall be adjusted up or down by a
corresponding amount. Any such adjustment shall be considered in adjustments to
Company rates as described in Section 6.5.
3.1.3 Vehicle Impacts
City may instruct Company to compensate City annually for the costs of maintaining and
repairing roads attributed to Solid Waste Collection vehicles. If a fee is imposed,the City
and Company shall negotiate the amount.
3.1.4 Time and Method of Payment
Company shall remit all monies due to the City on or before the thirtieth (30th) day
following the end of each month. Company shall continue to remit Franchise Fees
and/or Environmental Fees to the City after the Term of this Agreement expires so long
as Company continues to collect receipts from Customers that were billed for services
during the Agreement Term.
If fees or other outstanding monies are not paid on or before the thirtieth (30th) day
following the end of the month,Company shall pay to the City a service charge,and not
as interest,in an amount equal to ten percent(10%)of the total amount owing. Company
July 1,2020 17 City of Cathedral City
shall pay an additional ten percent(10%) service charge on any unpaid balance for each
additional thirty (30) day period that any sum remains unpaid.
Company agrees that the service charges contemplated by this Section 3.1.4 reasonably
reflect the cost to the City to process any delinquency calculations and notices, and to
monitor Company's services, all in an effort to collect the delinquent Franchise Fees
and/or Environmental Fees which,together with all other remedies afforded City under
this Agreement (including any award of attorney's fees and costs), and in accordance
with applicable laws, are intended to compensate City in any collection efforts in the
event of Company's default in the payment of Franchise Fees and/or Environmental
Fees.
3.1.5 Documentation of Fee Payments
Along with fee payments,Company shall submit documentation of the Gross Receipts
and total tonnage Collected and Disposed during the corresponding month,by line of
service(Residential,Commercial,Roll-off Box).The Disposal costs and Recyclable
Materials processing fee components shall be segregated in the documentation of Gross
Receipts and total tonnage. This documentation is due by the 30th day following the
end of each month and shall not be deemed received by the City unless it is complete
and accurate.
3.2 Other Fees
The City shall reserve the right to set other fees,as it deems reasonably necessary. The
amount, time and method of payment and adjustment process shall be determined by
reference to Section 3.1.4 above and Section 6.2 below.
ARTICLE 4
DIRECT SERVICES
4.1 Collection Services
Company shall furnish all labor,supervision,equipment,materials,supplies,and all other items
necessary or convenient to perform all services within the scope of this Franchise The
enumeration of, and specification of requirements for, particular items of labor or equipment
shall not relieve Company of the duty to furnish all others,as may be required,whether or not
enumerated elsewhere in this Agreement.
July 1,2020 18 City of Cathedral City
The work to be done by Company pursuant to this Agreement shall be accomplished in a
thorough and professional manner so that the residents within the City are provided reliable,
courteous and high-quality Solid Waste Collection services at all times.
4.2 Determination of Residential Collection Method
All individually-serviced Residential Customers shall receive automated Collection service
using Carts provided by Company, or Bin service, unless City approves manual service on a
case-by-case basis.City shall make the final determination as to the form of Collection service a
Customer shall receive: Cart,Bin or other.
4.2.1 Homeowner Association Customers in Gated Communities
Homeowner associations in gated communities shall have automated services as
described in Section 4.3,unless City approves manual or other service on a case-by-case
basis.
4.2.2 Individually Serviced Dwelling Units
Except as provided in Section 4.2.3, Residential Customers shall receive automated Cart
service once per week as described in Section 4.3.
4.2.3 Apartment Complex Customers
Section 9.16.150 of the Cathedral City Municipal Code mandates the developers of certain
Residential developments to construct trash enclosures to accommodate Bin service.
Accordingly, Residential Customers (i) in Residential developments with three (3) or
more dwelling units and with trash enclosures accessible to Refuse removal vehicles by
alley or private common drive,and(ii)in Residential developments with five(5)or more
dwelling units regardless of access,shall receive Bin service. All Residential Customers
not receiving Bin Service shall receive automated Cart services. Recyclable Materials
Collection shall also be offered to Residential Bin Customers, at the rates established in
Exhibit 1 and using the containers deemed most appropriate by Company.
4.3 Automated Collection Services
Except as provided in Section 4.4, Company shall provide Residential Customers receiving
individual automated Cart Collection service with a minimum of three (3) 96-gallon Carts,one
each for Refuse,Recyclables and Organic Waste. Additional Carts shall be provided at the rate
in Exhibit 1, Rate Schedule.; No Customer may receive additional Carts at the additional Cart
rate unless the Customer is already paying for Cart service. All materials to be Collected must
be contained in the Cart with the lid closed.
July 1,2020 19 City of Cathedral City
4.3.1 Automated Refuse Services
Company shall provide Refuse Collection services to all Premises not less than once per
week.
4.3.2 Automated Curbside Recyclable Materials Collection
No discounts shall be given to Customers for not using Recycling Carts.Customers shall
be provided, at no additional cost, one recycling cart as Customer may request.
Customers may continue to utilize an additional no charge Recycling cart,so long as they
do not have contamination levels above 15%. Should a customer have continued
contamination levels above 15% and have been notified by company more than four
times annually, Company may charge a monthly fee for additional can identified in
Exhibit 1.Company shall Collect and remove all Recyclable Materials placed in Recycling
Carts at the curbside on the same day as Refuse Collection. Recydable Material
Collection from automated Carts within the City shall be at least once each week and,at
a minimum,shall include,but not be limited to,the Collection of:
a) Paper - all grades, including: newspaper, catalogs, magazines, junk mail
including envelopes, telephone books, cereal boxes, office paper (white, colored,
computer&envelopes),cardboard (all grades,including egg cartons);
b) Empty aerosol cans;
c) Glass- all colors,whether or not there is a California redemption value;
d) Aluminum- cans,foil and trays;
e) Bi-metal,tin-cans,steel cans;
g) Plastics/resins of all grades,Nos. 1 through 7,as markets exist.
Recyclable Materials are to be commingled in a single Recycling Cart.
4.3.3 Automated Curbside Organics Waste Collection
No discounts shall be Organics'ven to Customers for not usingOanics Waste Carts.Customers
g�
shall be provided, at no additional cost, one Organics cart as Customer may request.
Customers may continue to utilize an additional no charge Organic cart, so Iong as they
do not have contamination levels above 15%. Should a customer have continued
contamination levels above 15% and have been notified by company more than four
July 1, 2020 20 City of Cathedral City
times annually, Company may charge a monthly fee for additional can identified in
Exhibit 1.Residential Organics Waste Collection shall be on the same day of the week as
Refuse Collection service.
4.3.4 Automated Cart Walk-in Service
Company shall offer walk-in Collection services to all Customers for an additional fee.
Service will include retrieving and returning Refuse,Recyclable Materials,and Organics
Waste Containers to the backyard or enclosure of such Customers. Disabled persons,
identified as those meeting the DMV requirement for N1-Permanent disabled parking
placard, shall receive such service for no additional charge. The walk-in service
surcharge for able-bodied Customers choosing to pay for such service will include the
walk-in Collection of one each Refuse, Recycling and Organics Waste Containers;
additional fees may be charged for additional Containers.
4.4 Manual Collection Services
Company shall manually Collect Refuse delivered for Collection at the curbside in Customer-
provided Cans weighing no more than 60 pounds, not less than once per week and only until
such Customers have been transitioned to automated. Customers receiving manual Refuse
Collection service shall receive manual Collection of Recyclable Materials but shall not receive
Organics Waste Collection. Once transitioned to automated collection, Customers will receive
Organic Waste Collection.
4.5 Other Residential Services
4.5.1 Low Income Clean-up Assistance
At City's request and at no cost to Residents or City, Company shall provide up to eight
(8)40 Cubic Yard Roll-off Boxes in a Calendar Year for removal of Solid Waste,including
Bulky Items,from individual dwellings that have been qualified by City as low income.
Company shall not be responsible for loading, traffic control or oversight of such
cleanups.
4.5.2 On-Call Bulky Item Collection
The Company shall provide Bulky Item pickup service to all Residential Customers(both
Single,multi-family,and gated communities)and all Commercial Customers subscribing
to Bin service. Residential Customers will be entitled to weekly pickups, with a
maximum of four(4)items per pickup per week,for no charge for bulky items generated
at the residential premises. Commercial Customers shall be charged rates in accordance
with the charges in effect in the Rate Schedule, Exhibit 1. Customers will provide the
July 1,2020 21 City of Cathedral City
Company with forty-eight(48) hours advance notice and the items will be Collected on
the Customer's regular Collection day. The City shall have the right to direct Company
to pick up from commercial establishments,free of charge,bulky items that were illegally
dumped.
4.5.3 Christmas Tree Collection Program
Company shall operate an annual Christmas Tree Collection program. The program shall
include curbside Collection and a drop off site at Company's operations yard located in
the City of Palm Desert, and shall target all Residential Premises in the City (both single
and multi-family). Company shall reasonably cooperate with the City in the scheduling
and operation of the Christmas tree Collection program.
4.5.4 Used Motor Oil and Filter Recycling
Company shall Collect and Recyde all used motor oil and oil filters from all Residential
Premises on the same day as Recyclable Materials Collection. Company shall provide
Collection of used motor oil and oil filter for Residents not receiving automated Cart
service on a call-in basis.
4.5.5 Residential Organics Collection SB 1383
At such time as Residential Organics Collection is required by state law and regulations,
Company shall offer and provide an Organics Collection program (the "Residential
Organics Program") to all Residential Customers that at a minimum meets the standards
required under SB 1383. Company shall also assist the City in identifying Residential
Customers that are not in compliance with the requirements of the Applicable Laws,
including without limitation SB 1383.
Company shall provide periodic on-site visits to such Residential Premises to offer and
promote Residential Organics Program services as required, attempt to resolve any
logistical detriments to providing these services, and notify and request assistance from
the City for potential follow up action where there is a repeated refusal to implement the
Residential Organics Program.Company shall keep records of all on-site visits including
the date visit was conducted,who Company met with, services offered and any reasons
explaining if customer refuses to implement the Residential Organics Program and will
be provided to the City on a monthly basis. City agrees to provide reasonable assistance
to Company, which may include adding its name to materials prepared for distribution
to Residential Customers regarding the Applicable Laws,including without limitation SB
1383 requirements, consideration of ordinances which may assist with gaining
compliance with the Applicable Laws including without limitation SB 1383 requirements,
July 1, 2020 22 City of Cathedral City
and occasional participation by City personnel in meetings with Residential Customers
who repeatedly refuse to implement the Residential Organics Program.
Company shall be responsible for ensuring that its Residential Organics Program,
combined with its other programs, enables it to achieve the required diversion rates
specified in this Agreement and may be required to modify its program from time to time,
to meet such diversion requirements. Company shall produce,keep current,and provide
public information specifically outlining its Residential Organics Program, which shall
specifically include the annual publication and distribution of a brochure describing this
service to all applicable Customers in City. City and Company shall work together to
determine a fair and reasonable adjustment to the maximum rates set forth on Exhibit 1
in order to compensate Company for implementing said Organics Program;and the City
Manager is authorized to approve the Residential Organics Program and any associated
increase to the maximum rates set forth on Exhibit 1.
4.6 Commercial Service
4.6.1 Refuse Bin Service
Company shall offer Bin service. Company shall Collect and remove all Solid Waste that
is placed in Bins by Customers receiving Bin service at least once every week, or more
frequently if required to handle the Solid Waste stream of the Premises where the Bin is
located. Special consideration shall be given when determining the pick-up area to
ensure that the flow of traffic is not impeded. Company is responsible for closing Bin
enclosure gates and for replacing locks,if provided,after Collection.
4.6.2 Cart Service
Company shall provide Cart service to low-volume Commercial Customers requesting
such service provided Company or City's Environmental Conservation Manager has first
conducted a waste stream audit and approved the use of a Cart. This service will be
provided at the same rate as Residential Cart service.
4.6.3 Temporary Bins and Roll-off Box Service
Company shall offer temporary Bin service and Roll-off Box and compactor services for
the Collection of Refuse or C&D Waste.
July 1.2020 23 City of Cathedra!City
4.6.3.1 Condition of Equipment
Temporary Bins and Roll-off Boxes shall be free of graffiti and in good repair,and
must be clearly marked and identifiable as belonging to Company.
4.6.3.2 Location
Company shall not deliver a temporary Bin or Roll-off Box in the public right-of-
way unless and until Customer has obtained an encroachment permit issued by
City. Special consideration shall be given when determining the delivery
Collection location for temporary Bins and Roll-off Boxes to ensure that the flow
of traffic is not impeded. The designated Collection location, if disputed by the
Customer or Company, shall be determined by the City. Additionally, if in the
City's opinion the location of an existing Collection location is inappropriate for
aesthetic or safety reasons, the City may require the Customer and/or Company
to relocate the temporary Bins or Roll-off Boxes to an alternate Collection location.
4.6.3.3 Arranging
Company shall deliver and Collect temporary Bins and Roll-off Boxes at the
direction of the Customer.
4.6.3.4 Time
The Customer is entitled to retain the Bin or Roll-off Box(es)for seven(7) business
days. After the initial seven (7) business days, additional fees may be due based
on demurrage charges for use beyond the seven(7)business days.
4.6.3.5 Charge
Company may charge the established Temporary Bin and Roll-off Box Service
rates as set out in Exhibit 1.
4.6.4 Commercial Recycling Program
Company shall offer and provide a Commercial Recycling Program to all Commercial
customers (the "Commercial Recycling Program") that at a minimum meets the
standards required under the Applicable Laws including without limitation AB 341.
Company shall also assist the City in identifying Commercial customers that are not in
compliance with the requirements set forth in the Applicable Laws including without
limitation AB 341.
July 1,2020 24 City of Cathedral City
Company shall provide quarterly contact that may include on-site visits to such Premises
to offer and promote the Commercial Recycling Program services as required,attempt to
resolve any logistical detriments to providing these services, and notify and request
assistance from the City for potential follow up action where there is a repeated refusal
to implement the Commercial Recycling Program. Company shall keep records of all
contact and on-site visits including the date contact/visit was conducted,who Company
met with, services offered and any reasons explaining if customer refuses to implement
the Commercial Recycling Program and will be provided to the City on a monthly basis,
along with information of those who are and are not complying with the Applicable
Laws including without limitation AB 341. City agrees to provide reasonable assistance
to Company,which may include adding its name to materials prepared for distribution
to customers regarding the Applicable Laws including without limitation AB 341,
consideration of ordinances which may assist with gaining compliance with the
Applicable Laws including without limitation AB 341 requirements, and occasional
participation by City personnel in meetings with customers who repeatedly refuse to
implement the Commercial Recycling Program.
Company shall be responsible for ensuring that its Commercial Recycling Program,
combined with its other programs, enables it to achieve the required diversion rates
specified in this Agreement and may be required to modify its program from time to time
to meet such diversion requirements. Company shall produce,keep current,and provide
public information specifically outlining its Commercial Recycling Program,which shall
specifically include the annual publication and distribution of a brochure describing this
service to all applicable customers in the City.
4.6.5 Overflowing Commercial Containers and Enclosure Clean-Outs
Customers that regularly produce more Refuse than their current level of service can
accommodate and who fail to increase service as recommended by Company shall be
reported to City for review and action.
4.6.6 Commercial Organics Program
Company shall offer and provide a Commercial Organics Collection program to all
Customers at Commercial Premises (the "Commercial Organics Program"), to be
approved by the City Manager, that at a minimum meets the requirements of the
Applicable Laws including without limitation AB 1826. Company shall also assist the
City in identifying Commercial Customers that are not in compliance with the
requirements set forth in the Applicable Laws including without limitation AB 1826.
Company shall provide quarterly that may include on-site visits to Commercial
Customers to offer and promote its Commercial Organics Program, attempt to resolve
July 1,2020 25 City of Cathedral City
any logistical detriments to providing services offered thereunder,and notify and request
assistance from the City for potential otential follow up action where there is a repeated refusal
to implement the Commercial Organics Program. Company shall keep records of all
contact and on-site visits including the date contact/visit was conducted,who Company
met with, services offered and any reasons explaining if customer refuses to implement
the Commercial Organics Program and will be provided to the City on a monthly basis,
° along with information of those who are and are not complying with the Applicable Laws
including without limitation AB 1826. City agrees to provide reasonable assistance to
Company,which may include adding its name to materials prepared for distribution to
Customers regarding the Applicable Laws including without limitation AB 1826
requirements, consideration of ordinances which may assist with gaining compliance
with the Applicable Laws including without limitation AB 1826 requirements, and
occasional participation by City personnel in meetings with Commercial Customers who
repeatedly refuse to implement the Commercial Organics Program.
Company shall be responsible for ensuring that its Commercial Organics Program,
combined with its other programs, enables it to achieve the required diversion rates
specified in this Agreement and may be required to modify its program from time to time
to meet such diversion requirements. Company shall produce,keep current,and provide
public information specifically outlining its Commercial Organics Program,which shall
specifically include the annual publication and distribution of a brochure describing this
service to all applicable Customers in City.
4.6.7 Compactor Service
Company shall offer Collection of Refuse or Recyclable Material from high volume
Commercial Customers from stationary compactors maintained by either the Customer
or Company as they may mutually agree.
4.6.7.1 Condition of Equipment
If provided by Company, compactors shall be free of graffiti and in good repair,
and must be clearly marked and identifiable as belonging to Company.
4.6.7.2 Location
The designated Collection location shall be arranged by Customer in accordance
with the requirements and design standards of City and with the prior approval
of the City. The selected location shall also be subject to the prior written approval
of Company.
July 1, 2020 26 City of Cathedral City
4.6.7.3 Arranging
Company shall Collect from compactors at the direction of the Customer.
4.6.7.4 Charges
Company may charge for compactor service at the rate set out in Exhibit 1.
4.6.7.5 Conditions
The compactor shall be compatible with Company's Collection equipment and
procedures. The location,type and method of operation of the compactor shall be
approved in writing by Company before installation. If maintained by the
Customer, the Customer shall be solely responsible for the safe operation of the
compactor and for all repairs that may be needed from time to time.
4.7 City Services and Other Requirements
4.7.1 City Premises Collection
Company shall provide,at no charge to City,Containers for,and Collection and Disposal
of,all Solid Waste generated at Premises owned and/or operated by the City;provided,
however, that City shall pay for services at the rates and charges in effect at the time
service is rendered, and under the same terms and conditions as any other Commercial
Customer, for Solid Waste services provided for City Premises that are (1) not operated
for a public purpose or (2) operated as a Commercial enterprise. Collections shall be
scheduled at a time mutually agreed upon by Company and City. Company may also
provide separate containers appropriate for the type and amount of materials on a
facility-by-facility basis for commingled Recycling of newsprint,mixed paper,corrugated
cardboard, and glass, plastic and metal beverage containers and for source-separated
Organics Waste, including Organics Waste originating from City Premises and loaded
into Roll-off Boxes at City's Corporate Yard, and source-separated C&D Waste materials
(concrete and asphalt,woody waste,metals and sand,soil and sod).
4.7.2 Illegal Dumping Collection Program
Company shall Collect debris from illegal dumping consisting of non-hazardous waste items
such as Refuse, appliances, electronics, TV's, bulky items, mattresses, tires, and the like at
approximately 1,440 locations identified by the City, within the City (the "Illegal Dumping
Collection Program"). Company will provide a crew two days a week for the Illegal Dumping
Collection Program,and will also be available for the collection of debris in areas deemed urgent
and needing a quick response as directed by the City. In the event of significant increases or
July 1,2020 27 City of Cathedral City
decreases from 1,440 identified sites or costs., City and Company shall work together to
determine a fair and reasonable adjustment to the maximum rates set forth on Exhibit 1.
4.7.3 City Sponsored Events
Each calendar year,Company shall provide Solid Waste and Recycling Collection service
and portable toilet and sink service at up to five (5) City-sponsored, community-wide,
not for profit events, exclusive of City-sponsored events designed exclusively as a
Recycling event. City shall designate the five(5)City-sponsored events. These services
shall be provided at no cost to the City or the event.
4.7.4 C &D Waste Recycling
Company shall Divert a minimum of seventy-five percent (75%) of all C & D Waste
Collected by Company. All mixed C&D Waste shall be processed. Company's program
shall commence upon the Effective Date and continue during the City's continuation and
enforcement of:
a) City's comprehensive Construction and Demolition Waste Recycling Ordinance,
when approved, designed to Divert seventy-five percent (75%) of all C & D Waste
generated within the City,and
b) That there continuously exists in the Coachella Valley sufficient properly licensed
and permitted Diversion Sites capable of accepting, processing and Diverting seventy-
five percent(75%)of the C&D Waste generated within City.
Provided Company has made a good faith effort to implement City's C & D Waste
Recycling Ordinance, Company's failure to Divert seventy-five percent (75%) of C & D
Waste from landfill Disposal shall not result in a breach of this Agreement or subject
Company to penalties or liquidated damages; however, such failure may be considered
in City Council's future extensions of this Agreement.
Roll-off Box Collection service shall be charged on a "pull-plus-dump" basis, with a
service fee or "pull charge" and a per-ton fee component. The per-ton component for
source-separated loads(e.g.,concrete,dirt,asphalt,wood)shall be the actual per-ton gate
rate at the Facility accepting the material for Diversion.
4.7.5 Document Shredding Program
Company shall reimburse City for the cost to operate four (4) drop-in document
II
shredding events per calendar year for Cathedral City Customers. Said reimbursement
shall include(a)the service fees charged by the shredding equipment vendor,(b)the cost
July 1,2020 28 City of Cathedral City
to place a display advertisement in a newspaper of general circulation in the City ten(10)
days prior to each drop-in document shredding event, and (c) printing, postage and
distribution fees for postcards notifying the residents of the event. Company shall
reimburse City, not to exceed $10,000 annually, for said expenses within 30 days of the
City's invoice for same.
4.7.6 Sharps Recycling and Medication Disposal Program
Company shall provide a mail-in program for the Collection of used needles, with
program specifics to be approved by City,and shall accept sharps at its 1-II IW center and
at other locations that may develop as a result of expansion of the program in the City.
Said services shall be offered to Residential Customers at no cost,but may be provided
to Commercial Customers for a fee. Company shall be responsible to ensure that the
sharps collection program complies with all applicable laws and regulations. Company
shall also provide the City,at no charge,up to 1,000"Take Away" envelopes per calendar
year for the proper disposal of medications.
4.7.7 Warning Notice
Company shall warn Customers who have non-Recyclable Materials in their Recycling
Container. The warning should notify the Customer that Company may charge a
Collection fee for contaminated Recycling Containers in accordance with the approved
rate schedule. If after two sequential written warnings that Customer's Recycling
Container continues to be contaminated,Company may remove the Recycling Container.
Company shall report quarterly to the City any warning notices issued as part of its
quarterly reporting under Section 8.3.3. Removed Recycling Containers shall be returned
to Customers under any of the following circumstances:
a) Customer requests return of Recycling Containers and it has been at least three
months since the removal;
b) Occupant at location changes;
c) Company has reason to believe Customer will no longer contaminate Recycling
Container;or,
d) City requests Recycling Containers be returned.
July 7,2020 29 City of Cathedral City
4.7.8 Marketing and Sale of Recyclable Materials
Company shall be responsible for marketing and sale of all Recyclable Materials
Collected pursuant to this Agreement Company shall retain proceeds from sales of
Recyclable Materials.
4.7.9 End Uses for Organics Waste
Company shall Divert Organics Waste materials through any available method,
including but not limited to composting and mulching. The Organics Waste to be
Diverted shall include all source-separated Organics Waste Collected by Company,
whether through curbside collection services, commercial Organics Waste collection
services,the Christmas tree collection program or as a result of having been dropped off
by the Customer at a Company site. Company must provide end uses for Organics Waste
that maximize Diversion credits for the City according to regulations established by the
Cal Recycle, and may use Organics Waste as alternative daily cover (ADC) so long as
ADC is permitted as a Diversion credit by the CalRecycle.
4.7.10 Diversion Requirements
The minimum amount that shall be Diverted through Recycling, Organics Waste
Collection, and Transformation (the "Diversion Rate") is fifty percent (50%) until such
time as the City approves its Sustainability Plan and/or the State approves the Green
Building Standards,at which time the Diversion Rate will increase to seventy-five percent
(75%) of the total Solid Waste stream during each calendar year of this Agreement
Transformation shall consist of a maximum of ten percent(10%) of the total Solid Waste
stream.
Company shall ensure that the City meets the meet the goals and requirements of AB 939,
AB 341,AB 1826 and SB 1383 (as implemented herein) and any future State mandate(s).
If additional services and/or equipment is necessary to meet said goals,Company shall
be entitled to a rate adjustment equal to the increased,reasonable,and actual costs.
4.7.11 Development of Diversion Facility
Company intends to develop additional Diversion Facilities to augment City's Diversion
Rate goals. However, both Parties recognize that having viable markets for Diverted
products is an important ingredient in Company's decision to invest in technology and
Facilities to Divert C&D Waste and food waste as part of this Agreement.
July 1,2020 30 City of Cathedral City
Within the first two years of this Agreement, Company will endeavor to develop a site
for sorting and consolidating mixed C & D Waste for transfer to local processors for
Diversion
Also, within the first year of this Agreement, Company will endeavor to develop, an
organic composting Facility for the conversion of Organics Waste into a beneficial soil
amendment.
Once developed,Company guarantees City sufficient capacity to Divert: (a)all mixed C
&D Waste generated within City,and (b) all food waste generated by Commercial food
establishments and residential customers participating in Company's source-separated
food waste Collection program.
4.7.12 Waste Characterization Studies
Company will conduct a Solid Waste characterization study at all Premises, including
City facilities,upon request of the Customer.
4.7.13 CNG Fueling Station Discount
Company will allow City to use any of Company's public access CNG fueling stations at
the pump price available to the general public.
4.8 Operations
4.8.1 Schedules
Solid Waste shall be Collected according to the City Code as follows:
a) Commercial:
i) Winter Months(October Pt through April 30th)-between 6:00 a.m.and 6:00
p.m.;
ii) Summer Months(May Pt through September 30th)-between 5:30 a.m.and
6:00 p.m.
b) Residential:
i) Winter Months(October 1st through April 30th)-between 6:30 a.m.and 6:00
p.m.:
July 1,2020 31 City of Cathedral City
ii) Summer Months(May 1st through September 30th) -between 5:30 a.m.and
6:00 p.m.
Solid Waste shall be Collected from Commercial zones Monday through Saturday, and
Residential zones Monday through Friday,unless Saturday Collection shall be necessary
due to holiday scheduling. If the regularly scheduled Collection day falls on New Year's
Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, or Christmas
Day, alternate Collection shall be performed on the following day, unless the alternate
day falls on Sunday. Alternate Collection shall then be performed on the following
Monday. All other Collection days falling on a legal holiday shall remain as scheduled.
Collections for the remainder of the week following a holiday shall be delayed for one
day.
Company shall be prepared to review its operations plan outlining the Collection routes,
intervals of Collection and Collection times for all materials Collected under this
Agreement with the City once annually upon 30-day written notice requesting said
review. More frequent reviews may be required if operations are not satisfactory based
on documented observations or reports of complaints. If the plan is determined to be
inadequate by the City, Company shall revise its plan incorporating any changes into a
revised plan and review said revised plan with the City within thirty (30)calendar days.
When notified of a missed pick-up, Company shall Collect the Refuse, Recyclable
Materials,Bulky Items and/or Organics Waste within one (1)business day.
4.8.2 Vehicles
4.8.2.1 General
Company shall provide Collection vehicles sufficient in number and capacity to
efficiently perform the services required by this Agreement in strict accordance
with its terms. The cost of any additional vehicles/routes that may be required to
meet the service standards during the Term of this Agreement, above the number
currently budgeted, shall be at Company's sole expense. Company shall have
available on Collection days sufficient back-up vehicles for each type of Collection
vehicle used to respond to complaints and emergencies. Company shall provide
electronic communication with the route supervisor and Commercial and
Residential Collection vehicles.
4.8.2.2 Specifications
All vehicles used by Company in providing Refuse, Recycling, and Organics
Waste Collection services shall be registered with the California Department of
July 1,2020 32 City of Cathedral City
Motor Vehicles. All such vehicles shall have water-tight bodies designed to
prevent leakage,spillage or overflow.
4.8.2.3 Alternative Fuel Vehicles
Company shall comply with the requirements of the Southern California Air
Quality Management District Rule No. 1193. Further, all regular Residential and
Commercial route trucks used by Company to Collect Refuse, Recycling, and
Organics Waste generated within City shall be alternative fuel vehicles.
Qualifying vehicles include:
a) Compressed Natural Gas vehicles;
b) Liquefied Natural Gas vehicles; and
c) Other alternative fuel vehicles with similar emission performance
standards if such vehicles are approved in writing by the City in advance of
implementation of such vehicles.
4.8.2.4 Vehicle Identification
Company's name, local telephone number, and a unique vehicle identification
number designed by Company for each vehicle shall be prominently displayed on
all vehicles, in letters and numbers no less than three (3) inches high. Company
shall not place the City's name and/or any City logos on Company vehicles.
4.8.2.5 Cleaning and Maintenance
a) Company shall maintain all of its properties, vehicles, Facilities, and
equipment used in providing service under this Agreement in a good, safe,neat,
clean and operable condition at all times.
b) Vehicles used in the Collection of Refuse, Recyclable Materials, and
Organics Waste shall be painted, thoroughly washed, and thoroughly steam-
cleaned on a regular basis so as to present a clean appearance. The City may
inspect vehicles at any time to determine compliance with this Agreement.
Company shall also make vehides available to the Riverside County Health
Department for inspection, at any frequency it requests. Company agrees to
replace or repair to the City's satisfaction, any vehicle which the City determines
to be of unsightly appearance,leaking,or in unsatisfactory operating condition.
July 1, 2020 33 City of Cathedral City
c) Within sixty (60) days' notice from the City that it has determined the
appearance of a Company vehicle warrants painting, Company shall repaint the
vehicle used in the Collection of Solid Waste.
d) Company shall inspect each vehicle daily to ensure that all equipment is
operating properly. Vehicles which are not operating properly,or vehicles in such
a condition as to be unsafe or excessively noisy, shall be removed from service
until repaired and operating properly. Company shall reasonably perform all
scheduled maintenance functions in accordance with the manufacturer's
specifications and schedule. Company shall keep accurate records of all vehicle
maintenance,recorded according to date and mileage (or hours of operation) and
shall make such records available to the City upon request.
e) Company shall repair, or arrange for the repair of, all of its vehicles and
equipment for which repairs are needed because of accident, breakdown or any
other cause so as to maintain all equipment in a safe and operable condition. If an
item of repair is covered by a warranty, Company shall obtain warranty
performance. Company shall maintain accurate records of repair, which shall
include the date and mileage (or hours of operation), nature of repair and the
verification by signature of a maintenance supervisor that the repair has been
properly performed.
f) Upon request by the City, Company shall furnish the City a written
inventory of all Collection equipment, including vehicles and Containers used in
providing service, and shall update the inventory upon request, up to once
annually. The inventory shall list all equipment by manufacturer,ID number,date
of acquisition,type, and capacity.
4.8.2.6 Operation
Vehicles shall be operated in compliance with the California Vehicle Code,and all
applicable safety and local ordinances. Company shall not load vehicles in excess
of the manufacturer's recommendations or limitations imposed by state or local
weight restrictions on vehicles.
Equipment shall comply with EPA noise emission regulations,currently codified
at 40 CFR Part 205 and other applicable noise control regulations, and shall
incorporate noise control features throughout the entire vehicle. In no event shall
the noise level of equipment used for Collection exceed 75 dba when measured at
a distance of 25 feet from the vehide, five feet from the ground. Company shall
store all equipment in safe and secure locations in accordance with the City's
applicable zoning regulations.
July 1. 2020 34 City of Cathedral City
Company shall be responsible for any damage resulting from or directly
attributable to any of its operations, and which it causes to the City's driving
surfaces, whether or not paved; associated curbs, gutters and traffic control
devices;other public improvements;and private roads and alleys.
4.8.2.7 City Inspection Per Code
The City may cause any vehicle used in performance of this Agreement to be
inspected and tested at any commercially reasonable time and in such manner as
may be appropriate to determine that the vehicle is being maintained in
compliance with the applicable provisions of the State Vehicle Code,including all
Vehicle Code Sections regarding smog equipment requirements. The City may
direct the removal of any vehicle from service if that vehicle is found to be in
nonconformance with applicable codes. No vehicle directed to be removed from
service by the City shall be returned to service until it conforms with said codes,
and its return to service has been approved by the City.
4.8.2.8 Vehicle Inspections
Upon City request, Company shall submit the Safety Compliance
Report/Terminal Record Update from its Biennial Inspection of Terminal, or BIT.
If Company receives a terminal rating below satisfactory, Company shall notify
the City. Company shall use the time allowed by the Department of California
Highway Patrol ("CliP") to cure violations and bring the terminal rating up to
satisfactory. If the CHP does not adjust the rating to satisfactory or better within
three (3)months,then Company shall remove any and all unsatisfactory vehicles
from operation within City.
4.8.2.9 Correction of Defects
Following any inspection, the City Manager or his designee shall have the right to
cause Company,at its sole cost and expense,to recondition or replace any vehicle
or equipment found to be unsafe, unsanitary or unsightly. The City Manager's
determination may be appealed to the City Council,which decision shall be final.
July 1, 2020 35 City of Cathedral City
4.8.3 Containers
4.8.3.1 Cart Design Requirements
These Carts shall be manufactured by injection or rotational molding and meet all
requirements specified below.
4.8.3.1.1 Capacity
Company shall continue to provide new and replacement 96-gallon
Carts in the same appearance for Residential Refuse, Recycling and
Organics Waste Collection as in use at the start of this Agreement term.
4.8.3.1.2 Cart Handles
The Cart handles and handle mounts may be an integrally molded part
of the Cart body or molded as part of the lid. Bolt-on handles are
acceptable. The Cart handles will provide comfortable gripping area for
pulling or pushing the Cart or lifting the lid. Pinch points are
unacceptable.
4.8.3.1.3 Cart Lid
Each Container shall be provided with a lid that continuously overlaps
and comes in contact with the Container body or otherwise causes an
interface with the Container body that simultaneously:
a) Prevents the intrusion of rainwater,rodents,birds,and flies;
b) Prevents the emission of odors;
c) Enables the free and complete flow of material from the
Container during the dump cycle without interference with the material
already deposited in the truck body or the truck body itself and its lifting
mechanism;
d) Permits users of the Container to conveniently and easily open
and shut the lid throughout the serviceable life of the Container;
e) The lid handle shall be an integrally molded part of the lid;
July 1, 2020 36 City of Cathedral City
f) The lid (and body) must be of such design and weight that
would prevent an empty Container from tilting backward when
flipping the lid open;and
g) The lid shall be hinged to the Cart body in such a manner so as
to enable the lid to be fully opened,free of tension,to a position whereby
it may rest against the backside of the Container body.
4.8.3.1.4 Cart Colors
The Refuse, Recycling and Organics Waste Carts will continue to be
differentiated by color. The colors shall be colorfast and resistant to
fading as a result of weathering or ultraviolet degradation. Color must
be uniform within each Container, and the colors must be uniform for
all Carts throughout the City.
4.8.3.1.5 Cart Identification Markings
All markings on the Containers shall be approved by the City in advance
of ordering Carts. An arrow(at least 3 inches by 5 inches)hot stamped
in white color shall be placed on the lid,indicating the direction of Cart
placement.
The word REFUSE, RECYCLING or ORGANICS WASTE, as
applicable,may be hot stamped or in a sticker format in white color on
the lid of the Cart, in character size of no less than 3/16 inch.
4.8.3.2 Cart Performance Requirements
All Carts shall be designed and manufactured to meet the minimum performance
requirements described below.
4.8.3.2.1 Cart Load Capacity
Carts shall have a minimum load capacity of 2oo pounds without
Container distortion, damage, or reduction in maneuverability or any
other functions as required herein.
July 1,2020 37 City of Cathedral City
4.8.3.2.2 Cart Durability
Carts shall remain durable,and at a minimum,shall meet the following
durability requirements to satisfy the intended use and performance,for
the Term of this Agreement:
a) Maintain its original shape and appearance;
b) Be resistant to kicks and blows;
c) Require no routine maintenance and essentially be
maintenance free;
d) Not warp, crack, rust, discolor, or otherwise deteriorate over
time in a manner that will interfere with the intended use;
e) Resist degradation from ultraviolet radiation;
f) Be incapable of penetration by biting or clawing of household
pets(i.e.,dogs and cats);
g) The bottoms of Cart bodies must remain impervious to any
damage that would interfere with the Cart's intended use after repeated
contact with gravel, concrete, asphalt or any other rough or abrasive
surface;
h) All wheel and axle assemblies are to provide continuous
maneuverability and mobility as originally designed and intended;and,
i) Resist degradation by airborne gases or particulate matter
currently present in the ambient air of the City.
4.8.3.2.3 Chemical Resistant
Carts shall resist damage from common household or Residential
products and chemicals. Carts, also, shall resist damage from human
and animal urine and feces.
July 1, 2020 38 City of Cathedral City
4.8.3.2.4 Stability and Maneuverability
The Carts shall be stable and self-balancing in the upright position,
whether empty or loaded to its maximum design capacity with an
evenly distributed load, and whether the lid is in a closed or open
position.
The Carts shall be capable of maintaining its upright position in
sustained or gusting winds of up to 25 miles per hour as applied from
any direction.
The Carts shall be capable of being easily moved and maneuvered with
an evenly distributed load equal in weight to its maximum design
capacity,whether on a level,sloped or stepped surface.
4.8.3.23 Lid Performance
Cart lid assemblies shall meet the following minimum requirements:
Cart body,a) Prevent damage to thethe lid itself or any
component parts through repeated opening and closing of the lid by
residents or in the dumping process as intended;
b) Remain closed in winds up to 25 miles per hour from any
direction. All lid hinges must remain fully functional and continually
hold the lid in the original designed and intended positions when either
opened or closed or any position between the two extremes;and,
c) Lid shall be designed and constructed such that it prevents
physical injury to the user while opening and closing the Container.
4.8.3.2.6 Reparability
Minor cracks, holes, and other damages to hinges, wheels, axle,
hardware, and other component parts shall be readily repairable by
Company personnel. All repairs must restore the Container to its full
functionality to meet the design and performance requirements as set
for herein.
July 1,2020 39 City of Cathedral City
4.8.3.2.7 Cart Replacement
The majority of the Carts in distribution at the start of this Agreement
Term are aging and may need replacing during the Agreement Term.
Company shall replace any Cart upon request of City or Customer with
a uniform-looking new Cart. Carts removed from service due to a
complaint of poor appearance may not be placed back into service, in
either the same or another location, unless specifically authorized in
writing by the City. Replacement of Carts shall also be in conformance
with Section 4.8.3.1.5.
4.8.3.3 Bins
Company shall provide Bins for Collection of Solid Waste to all Commercial
Customers and, except as provided at Section 4.4, all Residential Customers not
receiving automated Cart service. The Bins shall be constructed of heavy metal,
or other suitable, durable material, and shall be watertight and well painted.
Wheels, forklift slots, and other appurtenances which were designed for
movement,loading,or unloading of the Bin shall be maintained in good repair.
4.8.3.3.1 Bin Cleaning
Company shall maintain the Bins in a clean, sound condition free from
putrescible residue. Company shall inspect all Bins at least once per
year, and clean or replace all Bins as necessary, or upon Customer
request. One free cleaning or replacement per calendar year shall be
provided to each Bin Customer at no additional charge; except,
however, that Commercial food establishments shall receive three free
cleanings/replacements per calendar year at no additional charge.
Company shall perform cleaning or replacement of Bins more
frequently if necessary, for an additional fee, to prevent a nuisance
caused by odors or vector harborage. Customer may request additional
cleanings for a fee,in accordance with the approved rate schedule. Food
handling establishments must have Bins cleaned a minimum of once
every quarter and may be charged for cleanings beyond three per year.
Graffiti shall be removed from any Bin within one business day of
request by City or Customers. Each Bin placed in the City by Company
shall have the name of Company in letters not less than three inches high
on the exterior of the Bin so as to be visible when the Bin is placed for
use.
July 1,2020 40 City of Cathedral City
Company's Annual Report shall include a statement attesting to
Company's compliance with this Section.
4.8.3.3.3 Bin Identification
All Bins shall be the same color,except where the City states otherwise,
and shall carry Company's name and phone number,at least 3"high.
4.8.4 Litter Abatement
4.8.4.1 Minimization of Spills
Company shall use due care to prevent Solid Waste or fluids from leaking, being
spilled and/or scattered during the Collection or transportation process. If any
Solid Waste or fluids leak or are spilled during Collection, Company shall
promptly dean up all such materials. Each Collection vehicle shall carry a broom
and shovel at all times for this purpose.
Except with the City's prior written approval, Company shall not transfer loads
from one vehicle to another on any public street, unless it is necessary to do so
because of mechanical failure, accidental damage to a vehicle, or a pre-approved
method of Solid Waste transfer between vehicles.
4.8.4.2 Clean Up
During the Collection or transportation process,Company shall clean up litter in
the immediate vicinity of any Solid Waste storage or Collection area whether or
not Company has caused the litter. Company shall report to the City any instances
of repeated spillage not caused by Company. The City will attempt to rectify such
situations with the Customer if Company has already attempted to do so without
success.
4.8.4.3 Covering of Loads
Company shall properly cover all open Roll-off Boxes during transport to the
Disposal Site.
4.8.5 Personnel
Company shall furnish such qualified drivers, mechanical, supervisory, clerical,
management and other personnel as may be necessary to provide the services required
by this Agreement in a satisfactory, safe, economical and efficient manner. All drivers
July 1,2020 41 City of Cathedral City
shall be trained and qualified in the operation of vehides they operate and must possess
a valid license, of the appropriate class, issued by the California Department of Motor
Vehicles.
Company also agrees to establish and vigorously enforce an educational program which
will train Company's employees in the identification of Hazardous Waste. Company's
employees shall not knowingly place Hazardous Waste in the Collection vehicles, nor
knowingly Dispose of Hazardous Wastes at the processing Facility or Disposal Site.
Company shall train its employees in Customer courtesy,shall prohibit the use of loud
or profane language, and shall instruct Collection crews to perform the work quietly.
Company shall use its best efforts to assure that all employees present a neat appearance
and conduct themselves in a courteous manner. If any employee is found to be
discourteous or not performing services in the manner required by this Agreement,
Company shall take all necessary corrective measures including, but not limited to,
transfer, discipline or termination. If the City has notified Company of a complaint
related to discourteous or improper behavior, Company will consider reassigning the
employee to duties not entailing contact with the public while Company is pursuing its
investigation and corrective action process.
Company shall provide suitable operations, health and safety training for all of its
employees who use or operate equipment or who are otherwise directly involved in
Collection or other related operations.
4.8.6 Identification Required
Company shall provide Company identification for every employee, agent, contractor
and subcontractor who may make personal contact with residents or businesses in the
City. The City may require Company to notify Customers yearly of the form of said
identification. Company shall provide a list of current employees, agents, contractors,
and subcontractors to the City upon request.
The City reserves the right to perform a security and identification check through law
enforcement agencies upon Company and all its present and future employees, in
accordance with accepted procedures established by the City,or for probable cause.
4.8.7 Fees and Gratuities
Company shall not, nor shall it permit any agent, employee,contractor or subcontractor
to request, solicit, demand, or accept, either directly or indirectly, any compensation or
gratuity for temporary Bin/Roll-off Box services or the Collection, transportation,
July 1,2020 42 City of Cathedral City
Recycling, processing, or Disposal of Solid Waste otherwise required under this
Agreement
4.8.8 Non-Discrimination
Company shall not discriminate in the provision of service or the employment of Persons
engaged in performance of this Agreement on account of race, color, religion, sex, age,
physical handicap or medical condition or in violation of any applicable federal or state
law.
4.8.9 Street Sweeping Services
Company,its contractors,or subcontractors shall provide street sweeping within the City
j one (1) time per month, not to exceed 290 curb miles. Notwithstanding any other
provision herein, no costs or expenses, direct or indirect,related to said street sweeping
services shall be considered when adjusting or setting rates or other compensation for
Company services.
4.8.10 Change in Collection Schedule
Company shall notify the City in writing forty-five (45) days prior to, and Residential
Customers not later than thirty (30) days prior to, any change in Collection operations
which results in a change in the day on which Solid Waste Collection occurs. Company
will not permit any Customer to go more than seven (7) days without service in
connection with a Collection schedule change. The City's approval of any change in
Residential Collection is required prior to such change, and such approval will not be
withheld unreasonably.
Any changes in the route map or Collection schedule shall require the prior approval of
the City. The City may require changes in the route map or Collection schedule to
improve service,to resolve complaints or for other reasons.
4.8.11 Report of Accumulation of Solid Waste;Unauthorized Dumping
Company shall direct its drivers to note the address of any Premises at which Solid Waste
is accumulating and is not being offered to Company for Collection;and the address, or
other location description, at which Solid Waste has been dumped in an apparently
unauthorized manner. Company shall deliver each such address or description to the
City within five (5) working days of any such observation. Company shall cooperate
with City in the investigation and prosecution of any violations of the Cathedral City
Municipal Code.
i
July 1, 2020 43 City of Cathedral City
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1
4.9 Transportation of Solid Waste
Company shall transport all Refuse Collected pursuant to this Agreement to the Transfer
Station,Transformation Facility or Disposal Site designated by City. Unless and until the City
notifies Company of a change, Refuse shall be transported to the Edom Hill Transfer Station.
City's direction of a change of location that involves a change in Company's cost of
transportation or Disposal tipping fees shall include a change in Company's compensation to
offset Company's reasonable increase in operating costs.
Company shall not redirect Refuse without first notifying City in writing 30-days prior to the
proposed change. City's approval shall not be unreasonably withheld.
Company agrees to make all reasonable efforts to separate Recyclable Materials from Refuse for
Diversion from landfill Disposal.
Company shall be permitted to direct Recyclable Materials,Organics Waste,and other Diverted
materials to appropriately licensed and permitted processing Facilities. Further, if Company
develops and operates Facilities within the Coachella Valley for processing Recyclable Materials,
organic waste and/or C&D Waste, this Agreement specifically authorizes Company to direct
the flow of all materials generated within City and Collected by Company to said Facilities.
Company shall maintain, or cause its affiliates to maintain, at the Edom Hill Compost Facility
sufficient capacity to accept the Organic Waste to be collected and processed pursuant to this
Agreement.
City may periodically request Company to report the tip fees or processing fees charged at such
Facilities and may evaluate those tip fees and processing fees when considering rate increases
requested by Company pursuant to Article 6 hereof. City's evaluation of tip fees and processing
fees at processing Facilities used by Company shall be for the purpose of determining that said
fees are within a reasonable range for comparable Facilities within the same market area and
shall consider all relevant cost factors including transportation and Facility output quality. City
shall notify Company in writing if it determines any such fee is not within a reasonable range
for comparable Facilities within the same market area. Within thirty (30) days of City's
notification of unreasonable tip fees or processing fees, Company shall either provide written
justification for the fee or redirect materials to an alternative Facility in the same market area or
adjust the fee in question. If a written justification for a fee is provided by Company, the City
and Company shall hold a meeting to review the justification provided. The City shall have the
final determination as to whether the justification is acceptable and authority to redirect
materials
July 1,2020 44 City of Cathedral City
4.10 Disposal of Refuse
Company shall ensure that all Refuse Collected under this Agreement is Disposed of at the
Disposal Site. Unless and until the City otherwise notifies Company of a change, the Disposal
Site Company has designated for Disposal of Refuse shall be the Edom Hill Transfer Station for
transfer to the Riverside County Waste Management Department Landfill System or Salton City
Landfill. City retains the right to designate the Disposal Site to be used by Company.
4.11 Status of Disposal Site
Any Disposal Site utilized by Company for Disposal of Refuse shall be designed and constructed
in accordance with 23 California Code of Regulations Section 2510 et seq. Any such landfill
must have been issued all permits from federal, state, regional, county and the City agencies
necessary for it to operate as a Class III Sanitary Landfill and be in full regulatory compliance
with all such permits.
4.12 Route Audit
At City's request Company shall conduct an audit of its Commercial Collection routes in the
City. Additionally, if requested by the City, the route audit shall also include Residential
Collection routes.City shall request route(s)audit in writing. Within ninety (90)days of written
notice to perform a route audit, Company shall perform the route audit and submit a report
summarizing the audit findings and attaching the complete audit findings. The route audit shall
be conducted by a Person(s),other than the route driver,selected by Company and approved in
advance by the City.
The route audit information shall include, as a minimum, the following information for each
account:
a) For Residential Routes:
i) The number of routes,Collection vehicles,and stops for each day of the week and
for each type of service (Refuse, Recycling, Organics Waste, and other) prepared from
physical observation.
ii) A report generated from Company's Customer records detailing all Customers
organized by route and day of week and specifying the service address and type of
service.
July 1,2020 45 City of Cathedral City
iii) A report of route audit findings identifying any variances between the physical
audit and review of Company's Customer records and the location of any substandard
Company-provided Container.
iv) The number of routes,Collection vehicles,stops for each day of the week and for
each type of service(Refuse,Recycling,Organics Waste,and other)and tonnage of each.
b) For Commercial Routes:
i) The account name,number,address,and service level.
ii) The number of routes,Collection vehicles,and stops for each day of the week and
for each type of service (Refuse, Recycling, Organics Waste, and other) prepared form
physical observation.
iii) A report generated from Company's Customer records detailing all Customers
organized by route and day of week and specifying the service address and type of
service.
iv) A report of route audit findings identifying any variances between the physical
audit and review of Company's Customer records and the location of any substandard
Company-provided Cart.
v) The number of routes,Collection vehicles,stops for each day of the week and for
each type of service(Refuse,Recycling,Organics Waste,and other) and tonnage of each.
c) For Roll-Off Box Routes:
i) The account name,number,address,and service level.
ii) The number of routes,Collection vehicles,and stops each day of the week and for
each type of service(Refuse Roll-off Boxes,Refuse compactors,and Organics Waste Roll-
off Boxes) prepared from physical observation. Temporary accounts shall be excluded
from the route audit.
iii) A report generated from Company's Customer records detailing all Customers
organized by route and day of week and specifying the service address and type of
service.
iv) A report of route audit findings identifying any variances between the physical
audit and review of Company's Customer records and the location of any substandard
Company-provided Container.
July 1,2020 46 City of Cathedral City
v) The number of routes, Collection vehicles, stops for each day of the week and for
each type of service(Refuse,Recycling,Organics Waste,and other) and tonnage of each.
4.13 Service Exceptions;Hazardous Waste Notifications
4.13.1 Failure to Collect
When Solid Waste is not Collected from any Customer, Company shall notify the
Customer in writing, at the time Collection is not made, through the use of a "tag" or
otherwise,of the reasons why the Collection was not made.
4.13.2 Hazardous Waste Inspection and Reporting
Company reserves the right and has the duty under law to inspect Solid Waste put out
for Collection and to reject Solid Waste observed to be contaminated with Hazardous
Waste and the right not to Collect Hazardous Waste put out with Solid Waste. Company
shall notify all agencies with jurisdiction, if appropriate, including the California
Department of Toxic Substances Control and Local Emergency Response Providers and
the National Response Center of reportable quantities of Hazardous Waste, found or
observed in Solid Waste anywhere within the City. In addition to other required
notifications,if Company observes any substances which it or its employees reasonably
believe or suspect to contain Hazardous Wastes unlawfully Disposed of or released on
any City property,including storm drains,streets or other public rights of way,Company
will immediately notify the City Manager or his designee and the City's Environmental
Conservation Manager.
4.13.3 Hazardous Waste Diversion Records
Company shall maintain records showing the types and quantities,if any,of Hazardous
Waste found in Solid Waste and which was inadvertently Collected from Customers
within the City but Diverted from landfilling.
4.14 Disaster Preparedness Plan
Within twelve(12)months of the Effective Date,Company shall,with City assistance,prepare a
written plan detailing how Refuse services will be delivered in a time of emergency or natural
disaster. For the plan,City shall provide Company with a written list of critical facilities being
those facilities that the City deems in need of special consideration in a time of emergency
because they are critical to City's emergency response,of priority to the need of the community
and/or represent a public health risk to the community. Company's written plan shall contain
July 1,2020 47 City of Cathedral City
a protocol for contacting Company management in the event of an emergency, an overview of
Company's resources available for emergency response, a plan for Collecting and Disposing of
Refuse generated by critical facilities until the time of emergency passes and a plan for resuming
normal operations following an emergency.
4.15 Dedicated Routes
Within eighteen (18) months of the start date of this Agreement, Company shall service all
regular Collection routes in such fashion that all Solid Waste, except for Bulky Items, Used
Motor Oil and some commercial routes, Collected from or in other jurisdictions is not
commingled in Collection vehicles servicing Cathedral City routes. All regular Collection routes
shall be dedicated exclusively to the City of Cathedral City and not merge with or be combined
with other routes in other jurisdictions.
ARTICLE 5
OTHER SERVICES
5.1 Services and Customer Billing
5.1.1 Service Description
Company shall annually,in September,prepare and distribute,subject to the direction of
the City,a notice to each Customer listing Company's Collection rates for services,annual
holiday schedule, Recycling programs offered, and a general summary of services
required to be provided hereunder and optional services which may be furnished by
Company. Such notice shall be in a form subject to the City's approval prior to its
distribution. Notice may be included with Billings. The notice may also be included as
part of Company's public education plan described below in Section 5.3.1.
5.1.2 Billing
Except for services to Residential Customers assessed on the real property tax bill,
Company shall invoice all Customers directly. Company shall design detailed billing
formats to clearly and fully explain all charges to Customers. City must approve, and
may alter, all billing formats. City's written approval is required prior to Company
charging, or agreeing to charge, a Customer rates other than those listed on the City-
approved rate schedule.
July 1. 2020 48 City of Cathedral City
5.1.2.1 Residential Billing by City
City shall bill Residential Customers as an assessment on the real property tax bill
at Company's expense. Company shall provide to City and to the County of
Riverside updated tax roll billing data in a timely manner to ensure that new
billing information can be placed on the tax bill for the next calendar year.
5.1.2.2 Billing by Company
Company shall directly bill and collect payment from the following:
a) Residential Premises not billed by City as an assessment on the annual real
property tax bill shall be billed quarterly in advance directly by Company.
b) Special services to Residential Premises,including Bulky Item Collections
exceeding those services provided at no cost, temporary Bin and Roll-off Box
services, shall be billed by Company and payable at the time service is rendered.
For Residential Customers who request Roll-off Box service,Company shall accept
major credit cards for payment. Residential Customers that do not use credit cards
may be required by Company to post a security deposit or pay on a "Cash on
Delivery" (C. 0. D.) basis. Any unused portion of a security deposit shall be
refunded to the Customer within five (5) business days of the termination of
service.
c) For all other Roll-off Box Customers, Company shall invoice monthly or
semi-monthly in arrears with payment due within 15 or 30 days from the invoice
date (i.e., the beginning of the month or the inception of service). Company may
require a security deposit for temporary Roll-off Boxes, with the unused portion
refunded to the Customer within five (5) business days of the termination of
service.
d) Regular services to Commercial Premises shall be billed by Company
monthly, in arrears, except that Company may require a deposit for delinquent
accounts and/or bill said accounts monthly in advance of service. Said billing
shall include Bulky Item Collections exceeding those provided at no cost,
temporary Bin services and Roll-off Box services.
e) Special services to Commercial Premises without an established account,
including Bulky Item Collections exceeding those provided at no cost, temporary
Bin services and Roll-off Box services, shall be billed by Company and may be
collected at the time service is rendered.
July 1,2020 49 City of Cathedral City
5.1.2.3 Temporary Suspension of Service
Company may suspend service to non-Residential Customers due to non-
payment In addition to payment of all charges owed,Company may assess a re-
start fee in accordance with the rate schedule to reinstate service. The re-start fee
does not apply to a Customer establishing service at a new address,but only when
service has been suspended and restarted at the same location by the same
Customer.
5.1.3 Review of Billings
Company shall review its Billings to Customers under Section 5.1.2. The purpose of the
review is to determine that the amount which Company is billing each Customer is
correct in terms of the level of service being provided to such Customer by Company.
Company shall review Customer accounts annually, and submit to the City a written
report of that review annually on the anniversary of the Effective Day of this Agreement.
Company shall maintain copies of said Billings and receipts,each in chronological order,
for a period of five (5) years after the date of service for inspection by the City upon
request. Company may, at its option, maintain those records in computer form, on
microfiche, or in any other manner, provided that the records can be preserved and
retrieved for inspection and verification in a timely manner, are sufficient to verify
accuracy of Franchise Fees and/or Recycling Fees owed to the City,and may be produced
in a form and manner sufficient to establish the existence of Customer obligations in a
court of competent jurisdiction.
5.2 Customer Service
5.2.1 Office Hours
Company shall provide an office within Coachella Valley,and office hours shall be, at a
minimum,from 8:00 A.M. to 5:00 P.M.,Monday through Friday, excluding holidays. A
responsible and qualified representative of Company shall be available during office
hours for communication with the public at the office. Normal office hour telephone
numbers shall be a toll free call. Company's telephone system shall be adequate to handle
the volume of calls typically experienced on the busiest days,with a maximum hold time
of three minutes for Customers of the City of Cathedral City. Automated telephone
answering systems with menu-driven options must provide callers with an option to
connect to a live operator. Phone answering staff shall be competent to handle questions
on City-specific programs. Company shall also maintain a toll free telephone number for
use during other than normal business hours. Company shall have a representative,
July 1,2020 50 City of Cathedral City
answering or message providing/receiving (voice-mail) service available at said after-
hours telephone number. After-hours calls shall be responded to on the next business
day. Company shall provide the Environmental Conservation Manager or other City
Manager designee with the phone number of a live person who may be reached 24 hours
a day.
5.2.2 Complaint Documentation
All service complaints shall be directed to Company. Daily logs of complaints concerning
Collection of Solid Waste,including Recyclable Materials and Organics Waste Collection,
shall be retained for a minimum of twenty-four(24)months and shall be available to the
City at all times upon request
Company shall log all complaints received by telephone and said log shall include the
date and time the complaint was received, name, address and telephone number of
callers, description of complaint, employee recording complaint and the action taken by
Company to respond to and remedy complaint. All written Customer complaints and
inquiries shall be date-stamped when received. All complaints shall be initially
responded to within one (1) business day of receipt Company shall log action taken by
Company to respond to and remedy all complaints.
All Customer service records and logs kept by Company shall be available to the City
upon request and at no cost to the City. Company shall supply the City,within seven(7)
days of written notice, copies of all complaints on a form approved by the City and
indicate the disposition of each. The City shall, at any time during Company's regular
business hours, have access to Company's Customer service department for purposes
that may include monitoring the quality of Customer service or researching Customer
complaints.
5.2.3 Missed or Requested Pick-ups
In case of a missed pick-up, Company shall Collect the missed Solid Waste from the
Customer within one (1) business day. Missed pick-ups shall be logged and reported
under Section 5.2.2.
Requested pick-ups due to Bins filling up prior to normal Collection shall also be
responded to within twenty-four(24)hours and logged and reported under Section 5.2.2.
5.2.4 Resolution of Customer Complaints
Disputes between Company and its Customers regarding the services provided in
accordance with this Agreement may be resolved by the City. The City's decision shall
July 1, 2020 51 City of Cathedral City
be final and binding. Should Company and the Customer not be able to establish a
mutually acceptable fee to be charged for special hauling services, the matter shall be
determined by the City,whose written approval is required for any charges that deviate
from the rate schedules,and the City's decision shall be final.
Notwithstanding any rights or remedies vested in the City,intervention by the City is not
a condition precedent to the exercise of any right or remedy that a third party might
otherwise have with respect to a dispute with Company. Nothing in this Agreement is
intended to affect the remedies of third parties against Company.
5.2.5 Government Liaison
Company shall designate in writing a "Government Liaison" to work with the City
and/or the its designated representative(s) on contractual matters and to resolve
Customer complaints. Liaison shall be well versed in City's programs. City shall be able
to contact liaison via e-mail. City shall have the right to approve Company's choice for a
liaison and shall be notified in writing of relevant personnel changes.
5.3 Education and Public Awareness
5.3.1 General
Company acknowledges and agrees that education and public awareness are critical,key
and essential elements of any efforts to achieve the requirements of AB 939, AB 341, AB
1826 and SB 1383 (as implemented herein). The City has previously developed a"Refuse
&Recycling Guide." Company shall reimburse City annually,not to exceed$10,000 every
18 months, within thirty (30) days of invoice,for the cost to update,print and distribute
the guide to all Cathedral City Customers. At such time that City desires to implement
any other public education and awareness program not otherwise provided for herein or
as may be required by the implementation of SB 1383,City and Company shall negotiate
the content, delivery and cost of such programs. Company shall designate in writing a
representative that will serve as the Public Education Specialist responsible for
coordinating the public information and outreach activities.
5.3.2 Community Events
At the direction of the City, Company shall participate in and promote Recycling and
other Diversion techniques at community meetings, special events and other local
activities. Such participation would normally include providing, without cost to City,
Collection of Solid Waste at the event, educational information promoting the goals of
the City's Solid Waste Diversion and Recycling programs, and guest speakers at
meetings.
July 1, 2020 52 City of Cathedral City
5.3.3 Field Representative
Company shall designate in writing one or more field representatives who will be
responsible for(a)sending customer satisfaction surveys to Customers,and reporting to
the City as to the results,as and when requested by the City, (b)responding to the City's
inquiries with respect to all required reports, (c) monitoring all Company programs,
including customer service complaints, (d) ensuring Recycling programs are re-offered
to each Customer at least once per year, and (e) otherwise responding to the City's
inquiries concerning Solid Waste management services. Company's field
representative(s) shall also visit civic groups, homeowners' associations, building
managers at apartment complexes and Commercial Premises to promote and explain
Recycling and other Solid Waste programs.
5.3.4 Recycling Coordinator
Company shall provide a Recycling coordinator to:
a) be a liaison between Company's Solid Waste and Recycling operations and the
City;
b) formulate,communicate,and coordinate public education campaigns;
c) produce educational material regarding all Solid Waste programs being
implemented by the City;
d) develop an annual calendar of milestones and be responsible for informing the
City's Environmental Conservation Manager of events and deadlines;and,
e) assist ing
p pre arin grants that enhance public education in regard to Solid Waste
and waste reduction issues.
5.4 Waste Generation/Characterization Studies
Company acknowledges that the City may be required to perform Solid Waste generation and
Disposal characterization studies periodically to comply with AB 939 or other waste Diversion
requirements (including in connection with the implementation of SB 1383). Company agrees
to participate and cooperate with the City and its agents and to accomplish such studies.
July 1,2020 53 City of Cathedral City
ARTICLE 6
COMPANY COMPENSATION AND RATES
6.1 General
As full and complete compensation for all services required by this Agreement,Company shall
be entitled to:
a) Payment from City in accordance with Exhibit 1,Rate Schedule for service to Residential
Premises which have been billed by City as an assessment on the real property tax bill.
b) Charge Customers at Commercial Premises the rates approved by the City in Exhibit 1,
Rate Schedule for Solid Waste and Recycling Collection services.
c) Charge Customers at Residential Premises for alternate service (such as walk-in or
backyard)the rates approved by the City in Exhibit 1, Rate Schedule.
d) Charge operators of special events conducted in City for Collection services at special
events.
e) Retain all of the revenues received from the sale of Recyclable Materials, to be used in
determining Net Recycling costs, generated in City and Collected by Company.
f) No payment to Company is required or expected from the City except as expressly
provided at Section 4.7.1.
6.2 Changes in Scope of Service
The rates and fees identified in Exhibit 1, Rate Schedule shall be adjusted for changes in the
scope of Collection services as mutually agreed or ordered by City. Company's compensation
for changes in the scope of services shall be established by the following procedure:
a) City shall provide Company written notice describing the change in the scope of services
desired by City.
b) Within thirty (30) days following receipt of City's written notice,Company shall submit
its written proposal to provide the services requested by City. At a minimum, Company's
proposal shall include (i) a description of how the service will be rendered, (ii) Company's
schedule to provide the requested service, (iii) the effect on Company's annual operating
expense, overhead expense and amount of profit of providing the requested service, and (iv)a
description of any options or alternatives Company deems appropriate.
July 1,2020 54 City of Cathedral City
c) Within thirty(30)days following the submittal of Company's written proposal,City and
Company shall meet and negotiate in good faith to agree on an amendment to the Agreement
to allow for the change in the scope of services requested by City.
d) Should City and Company be unable to reach a negotiated agreement on an appropriate
amendment to the Agreement, the City Council may order Company to comply with the
requested change in the scope of services with an adjustment in the rates and fees determined
by the City Council to be reasonable given the effect on Company's operating expense,overhead
expense and profit. The decision of the City Council shall be final.
6.3 CPI-Based Change
The rates and fees identified in Exhibit 1,Rate Schedule,excluding the Disposal tip fee portion
of said rates and fees, may be adjusted annually for increases in the Consumer Price Index
("CPI")according to the following procedures:
a) CPI Formula Increase. Beginning July 1, 2021 and each July 1St thereafter, the rates for
Company's services identified in Exhibit 1,Rate Schedule,excluding Disposal Charges and City
Fees,may be increased annually based upon one-hundred percent(100%) of the change in the
CPI for All Urban Consumers Series Title: Water and Sewer and Trash Collection Services in
U.S. for January to January published by the U.S. Department of Labor, Bureau of Labor
Statistics. Said increase is subject to the following:
i) Company shall be entitled to a maximum CPI formula increase of five percent
(5%),except as provided in Section 6.3.b.
ii) Company's request for a CPI formula increase of not more than 5% shall be
submitted to City with evidence of the change in the CPI and a proposed revised Exhibit 1,Rate
Schedule reflecting the increase. Company shall submit the request not later than May 1st and
City shall confirm Company's calculations for accuracy and approve the revised Exhibit 1,Rate
Schedule in time for the rate adjustment to take effect on July 1st.
Upon Company's failure to submit a request for a CPI formula increase by May
1St, Company shall be deemed to have irrevocably waived the right to a CPI formula increase
for the next fiscal year.
b) Additional CPI Formula Adjustment. Should the change in the CPI described in Section
6.3.a be greater than five percent(5%),Company may request special consideration by the City
Council of an additional CPI formula increase over and above the maximum five percent(5%)
specified in Section 6.3.a above,provided that total annual CPI-formula increase shall not exceed
the total amount of the increase in the CPI or seven percent(7%),whichever is less.
July 1,2020 55 City of Cathedral City
i) Company's request for an additional CPI formula adjustment, also due May 1St,
shall include an explanation as to why an additional formula adjustment above five percent(5%)
is necessary and reasonable for local business conditions. The City Council shall render its
decision not later than July 1 and the decision of the City Council shall be final.
ii) Upon Company's failure to submit a request for an additional CPI formula
adjustment by May 1st, Company shall be deemed to have irrevocably waived its right to an
additional CPI formula adjustment for the next fiscal year.
Nothing in this Section shall preclude the City from adjusting rates in the years that Company
does not file a CPI rate increase request for the purpose of changing the fees set forth in the last
approved Rate Schedule or for any other purpose. In lieu of a CPI-based rate increase under
this Section 6.3, Company may request a rate adjustment on the basis of unusual or
extraordinary increases in Company's direct costs of operation in accordance with Section 6.5
below.
6.4 Disposal and Recycling Processing Charges
Disposal and Recycle Processing Costs are specifically excepted from the CPI-based charge
described in Section 6.3. Adjustments to the Disposal and Recycling Processing Cost may be
made based upon the actual changes in the tipping fee levied by the operator of the Disposal
Site and/or Transfer Station/Material Recovery Facility (MRF) and shall become effective
concurrent with the effective date of the change in said tipping fees. Recycle processing costs
will be based on material sale of recyclables,less Transportation and MRF fees to establish the
Net Recycling Costs.
6.5 Extraordinary Adjustments
Company or the City may request an adjustment to rates at reasonable times other than that
required in Section 6.3 for unusual changes in the cost of providing service under this
Agreement. Such changes may include changes in the scope of services,changes in components
of the landfill tipping fee, changes in the Disposal Site requested by the City, changes in wage
and benefits rates implemented by the State of California, and changes in State or local
government Solid Waste fees and charges. Such changes shall not include inaccurate estimates
by Company of its cost of operations. For each such request,Company shall prepare a schedule
documenting the associated change in costs. Such schedule shall be prepared in a form
acceptable to the City with support for assumptions made by Company in preparing the
schedule. Company shall also submit a schedule reporting its total costs and total Gross
Receipts each year for the past three(3)years for all services within the scope of this Agreement.
City shall make the final determination as to whether an adjustment to the rates will be made,
and, if an adjustment is permitted, the appropriate amount of the adjustment. Extraordinary
1
1 July 1,2020 56 City of Cathedral City
rate adjustments shall only be effective after approval by the City Council and may not be
applied retroactively. City shall render its decision within sixty (60) days of receipt of
Company's schedule, which shall not be considered until the City deems the documentation
provided to the City for the rate adjustment to be complete. City's decision on the proposed
rate adjustment shall be based upon the reasonableness of Company's analysis of the impact of
the extraordinary costs prompting the proposal and on Company's overall financial
performance for its performance of this Agreement.
6.6 Supporting Information
In the event Company requests a rate adjustment on the basis of unusual changes or
extraordinary increases or costs of doing business, Company shall provide the City with
documentation supporting its request Additionally,if required by the City,Company will also
provide a copy of its certified annual financial statements prepared by a Certified Public
Accountant ("CPA") or a licensed public accountant, which shall have been prepared in
compliance with Rule 58 of the "Rules and Regulations of the State Board of Accountancy",as
established by the California Code of Regulations, Title 16, Chapter I. Such CPA or licensed
public accountant shall be entirely independent of Company and shall have no financial interest
whatsoever in the business of Company. The City may specify the form and detail of the
financial statements.
6.7 Grants
From time to time,federal,state,or local agencies including the City may provide to Company
grants to assist in financing qualified programs provided by Company. Company agrees that
the Company Compensation, calculated as described in this Article shall be reduced by the
amount of any such grant, unless the grant is used exclusively to pay for new services not
otherwise within the scope of services contemplated in this Agreement. The City Council shall
determine whether the reduction in the Company Compensation shall be: (1) passed through
as a reduction to the rates charged to those Customers designated by the City;(2)as an offset to
a rate increase otherwise permitted pursuant to Sections 6.3 through 6.5; (3)paid to the City for
use as the City directs;or (4)applied in any combinations of(1)through(3).
6.8 Prop 2018 Compliance
Contractor understands and agrees that City may elect to or be required to comply with
Proposition 218 and other applicable law before approving any rate increase,including any rate
increase granted to Contractor in this Agreement City shall not be in Breach of this Agreement
if its residents lawfully delay or prevent City from raising or imposing the rates. In such event,
City and Contractor shall meet in good faith to consider alternatives and options, which may
include permitting Contractor to terminate the Agreement without cause.
July 1,2020 57 City of Cathedral City
ARTICLE 7
REVIEW OF SERVICES AND PERFORMANCE
7.1 Performance Hearing
The City may hold a public hearing on each anniversary of the Effective Date of this Agreement,
at which time Company shall be present and shall participate, to review the Solid Waste
Collection,source reduction,processing and other Diversion services and overall performance.
The purpose of the hearing is to provide for a discussion and review of technological,economic,
and regulatory changes in Collection, source reduction, Recycling, processing and Disposal;to
achieve a continuing, advanced Solid Waste Collection, source reduction and Recycling and
Disposal system;and to ensure services are being provided with adequate quality,effectiveness
and economy.
Forty-five (45) days after receiving notice from the City of a performance hearing, Company
shall submit a report to the City indicating, at a minimum,the following:
a) Company's recommendations for changes to existing or new services to improve the
City's ability to meet the goals of AB 939 and to contain costs and minimize impacts on rates;
b) Any specific plans for provision of changed or new services by Company;and
c) A summary of all complaint logs and an assessment of all problems reported since the
last performance hearing.
The reports required by this Agreement regarding Customer complaints shall be used as one
basis for review. Company may submit other relevant performance information and reports for
consideration. The City may request Company to submit specific information for the hearing.
In addition, any Customer may submit other comments or complaints during or before the
hearing,either orally or in writing, and these shall be considered.
Topics for discussion and review at the annual performance hearing shall include,but shall not
be limited to, services provided, feasibility of providing new services, application of new
technologies,Customer complaints,proposed amendments to this Agreement,developments in
the law, new initiatives for meeting or exceeding AB 939 goals, regulatory constraints and
Company's performance. The City and Company may each select additional topics for
discussion at the hearing.
Not later than sixty (60) days after the conclusion of the annual performance hearing, the City
may issue a report. City may also require Company to provide expanded or new services,
July 1. 2020 58 City of Cathedral City
within a reasonable time and for reasonable rates and compensation,and the City may direct or
take corrective actions for any performance inadequacies.
ARTICLE 8
RECORDS, REPORTS AND INFORMATION REQUIREMENTS
8.1 General
Company shall maintain such accounting,statistical and other records related to its performance
under this Agreement as shall be necessary to develop the financial statements and other reports
required by this Agreement. Also,Company agrees to conduct data collection,information and
record keeping,and reporting activities needed to comply with applicable laws and regulation
and to meet the reporting and Solid Waste program management needs of the City. To this
extent, such requirements set out in this and other Articles of this Agreement shall not be
considered limiting or necessarily complete. In particular, this Article is intended to only
highlight the general nature of records and reports and is not meant to define the entire scope
or contents off the records and reports to be submitted. Further, at the written direction or
approval of the City, the records and reports to be maintained and provided by Company in
accordance with this and other Articles of the Agreement shall be adjusted in content,number,
format,or frequency.
8.2 Records
8.2.1 General
Company shall maintain records required to conduct its operations, to support requests
it may make to the City, and to respond to requests from the City concerning as aspects
of Solid Waste services performed in the City. Adequate record security shall be
maintained to preserve records from events that can be reasonably anticipated such as a
fire,theft and earthquake. Electronically maintained data/records shall be protected and
backed up. All records shall be maintained five (5) years after the expiration of this
Agreement.
Company agrees that the records of any and all(sub)contractors or Affiliates conducting
operations pursuant to this Agreement shall be provided or made available to the City
and its official representatives during normal business hours. The City may review or
utilize any of the records described in this Article for any purpose whatsoever.
July 1,2020 59 City of Cathedral City
8.2.2 Financial Records
Financial records shall be maintained and expense and revenue information for services
within the scope of this Agreement shall be segregated from services provided in other
areas served by Company.
8.2.3 Solid Waste,Recycling,and Organics Waste Service Records
Records for services within the scope of this Agreement shall be maintained by Company,
including but not limited to those records relating to:
a) Customer services and billing;
b) Routes;
c) Facilities,equipment and personnel used;
d) Complaints;
e) Missed pick-ups;
f) Number of Refuse,Recycling,and Organics Waste Carts;and
g) Tons Collected, processed, Diverted, and Disposed by type of service (Cart, Bin,
Can, or Roll-off Box), waste stream (Refuse, Recycling, Organics Waste) and Customer
(Residential and Commercial).
8.2.4 CERCLA Defense Records
The City views the ability to defend against claims under the Comprehensive
Environmental Response, Compensation and Liability Act ("CERCLA") and related
litigation as a matter of great importance. For this reason,the City regards the ability to
prove where all Solid Waste Collected in the City was taken for Disposal,as well as where
it was not taken, to be a matter of concern. Company shall maintain data retention and
preservation systems which can establish where Solid Waste Collected in the City was
landfilled (and therefore establish where it was not landfilled)and provide a copy of the
reports required in Section 8.3, together with all supporting documentation, for five (5)
years after the expiration of the Term of this Agreement. Company agrees to notify the
City Manager or his designee, the Environmental Conservation Manager and the City
Attorney at least ninety (90) days before destroying such records. This provision shall
survive the expiration of the Term of this Agreement.
July 1,2020 60 City of Cathedral City
8.2.5 Disposal Records
Company shall maintain records of Disposal of all Solid Waste Collected in the City for
the period of this Agreement and all extensions to this Agreement or successor
Agreements. In the event Company discontinues providing Solid Waste services to the
City, Company shall provide all records of Disposal or processing of all Solid Waste
Collected in the City within thirty (30) days of discontinuing service. Records shall be in
chronological and organized form and readily and easily interpreted.
8.2.6 Other Program Records
Records for other programs shall be tailored to specific needs. In general, they shall
include:
a) Plans, tasks,and milestones;and,
b) Accomplishments in terms such as dates, activities conducted, quantities of
products used,produced or distributed,and numbers of participants and responses.
8.2.7 Scope and Cost of Audit
City may conduct an audit of Company every two years and Company shall reimburse
City for the cost of the first such audit up to $7,500. Thereafter, said amount shall be
adjusted based on the change in the CPI for all Urban Consumers in Los Angeles,
Riverside, Orange County, as calculated in Section 6.3. The scope of the audit, and
auditing party,will be determined by City and the scope may include,but is not limited
to, Company revenue, expenses, and methodology of Franchise Fee allocation,
compliance with terms of this Agreement, Customer service levels and billing, fee
payments, Gross Receipts, tonnage, and verification of Diversion Rate. Company will
provide the necessary data, documents and records to support its allocation of costs to
the various services areas and between the local jurisdictions.
8.2.8 Payments and Refunds
Should an audit by the City disclose or the City otherwise discover that any fees payable
by Company to the City were underpaid, or that Customers were overcharged for the
period under review,Company shall pay to the City any such underpayment and/or,as
applicable, refund the overcharges to Company's Customers. Should an audit disclose
that there was an overpayment to City, the City shall promptly refund to Company the
amount of the overpayment. Any refunds to be made by either party shall be due and
payable thirty (30)days following the date of the results of the audit
July 1,2020 61 City of Cathedral City
8.3 Reports
8.3.1 Report Formats and Schedule
Records shall be maintained in forms and by methods that facilitate flexible use of data
for structuring reports, as needed. Reports are intended to compile recorded data into
useful forms of information that can be used to,among other things:
a) Determine and set rates and evaluate the efficiency of operations;
b) Evaluate past and expected progress towards achieving AB 939 goals and
objectives;
c) Determine needs for adjustment to programs;and,
d) Evaluate Customer service and complaints.
Company may propose report formats that are responsive to the objectives and audiences
for each report The format of each report shall be approved by the City. Company agrees
to submit all reports on computer discs or by electronic means in a format compatible
with the City's software/computers at no additional charge, if requested by the City.
Company will provide a certification statement by an authorized Company official that
the report being submitted is true and correct.
Monthly reports shall be submitted within twenty(20)calendar days after the end of each
month. Quarterly reports shall be submitted within thirty (30) calendar days after the
end of the calendar quarter. If requested,Company's complaint summary, described in
Section 5.2.2 below, shall be sent to the City Manager, or his designee, within 5 days of
request. Annual reports shall be submitted before January 31st following the reporting
year.
All reports shall be submitted to:
City Manager
City of Cathedral City
68700 Avenida Lalo Guerrero
Cathedral City, CA 92234
July 1,2020 62 City of Cathedral City
With a copy to:
Environmental Conservation Manager
City of Cathedral City
68700 Avenida Lalo Guerrero
Cathedral City,CA 92234
8.3.2 Monthly Reports
The information listed here shall be the minimum reported:
a) Solid Waste Collected, Recycled, and Disposed of by Company for each month,
sorted by waste stream (Refuse, Recycling, Organics Waste) and type of Customer
(Residential, Commercial, Roll-off Box) in tons, and the Facilities where the tons were
processed or Disposed.
b) Materials Recovered. Statement showing kinds of material and quantity sold (in
tons).
c) The field representative's contact log described in Section 5.3.3.
d) Other information or reports that the City may reasonably request or require.
e) Complaint summary for the quarter summarized by nature of complaints on a
compatible computer disc.
f) Commercial Recycling contamination report, broken down by Customer name,
address,dates of contamination(s),and number/type of Containers and number of times
contaminated.
g) Commercial Recycling cancellation report, broken down by Customer name,
address,and reason for cancellation.
8.3.3 Quarterly Reports
The information listed here shall be the minimum reported:
a) Narrative summary of problems encountered (including scavenging) and actions
taken with recommendations for the City,as appropriate.
b) Copies of promotional and public education materials sent during the quarter,
including warnings as described in Section 4.7.8.
July 1,2020 63 City of Cathedral City
c) Detailed "Cash Receipts Report", broken down by month, by type of Customer
(Residential, Commercial, or Roll-off Box) including Customer name and account
number.
d) Detailed "Disposal/Tonnage Report", broken down by type of Customer
(Residential, Commercial, or Roll-off Box) including Customer name, account number,
and Disposal Site.
e) Detailed report of Company's outreach to Customers to evaluate and make
recommendations regarding Solid Waste services, including Recycling opportunities as
provided at Section 4.6.6 above.
8.3.4 Annual Report
The Annual Report is to be essentially in the form and content of the monthly and
quarterly reports combined,but shall also include:
a) A complete inventory of equipment used to provide all services.
b) Number of Containers in service by type of Customer (Residential or
Commercial),service (Refuse, Recycling,or Organics Waste) and type of Container.
c) The field representative's contact log described in Section 5.3.3.
d) CERCLA Defense records required under Section 8.2.4.
e) Name, address, and phone numbers of every Residential Customer, including
services provided (Refuse, Recycling, Organics Waste), Collection method (manual or
automated),and monthly rates.
f) Name, address, and phone numbers of every Commercial Customer, including
services provided(Refuse, Recycling,Organics Waste),Collection method,and monthly
rates.
8.3.5 AB 939 Reports
City may,at City's option,request Company to prepare and submit to the CaiRecycle the
annual AB 939 report.
July 1,2020 64 City of Cathedral City
8.3.6 Financial Report
The City may,at the City's option,request to review Company's annual audited financial
reports/statements for the most recently completed fiscal year.Financial statements shall
include a supplemental combining schedule showing Company's results of operations,
including the specific revenues and expenses in connection with the operations provided
for in this Agreement,separated from others included in such financial statements. The
financial statements and footnotes shall be prepared in accordance with Generally
Accepted Accounting Principles and audited, in accordance with Generally Accepted
Auditing Standards by a CPA licensed (in good standing) to practice public accounting
in the State of California as determined by the State of California Department of
Consumer Affairs Board of Accountancy. The cost for preparation of the financial
statements and audit shall be borne by Company as a direct cost of service. In addition,
Company shall provide to the City the supplemental schedule on a compiled basis.
Company shall, in its agreement with the CPA preparing the audit above,have its CPA
make available to the City (or the City's designated representative)such CPA's working
papers related to the audit. The cost, if any, incurred by Company's CPA shall be
included in the cost of the audit.
At the City's request,Company shall provide the City with copies of working papers or
other documentation deemed relevant to be reviewed by the City relating to information
shown in the CPA's disclosure letter. The disclosure letter shall be provided to the City.
8.4 Adverse Information
8.4.1 Reporting Adverse Information
Company shall provide the City three (3) copies (one to the City Manager, one to the
Environmental conservation Manager and one to the City Attorney) of all reports,
pleadings, applications, notifications, Notices of Violation, communications or other
material relating specifically to Company's performance of services pursuant to this
Agreement,submitted by Company to,or received by Company from,the United States
or California Environmental Protection Agency, the Cal Recycle, the Securities and
Exchange Commission or any other federal, state or local agency,including any federal
or state court. Copies shall be submitted to the City simultaneously with the filing or
submission of such matters with said agencies. Company's routine correspondence to
said agencies need not be routinely submitted to the City,but shall be made available to
the City promptly upon the City's written request.
July 1,2020 65 City of Cathedral City
8.4.2 Failure to Report
The refusal or failure of Company to file any required reports, or to provide required
information to the City, or the inclusion of any materially false or misleading statement
or representation by Company in a report shall be deemed a material breach of the
Agreement as described in Section 11.1 and shall subject Company to all remedies which
are available to the City under the Agreement or otherwise.
8.5 Right to Inspect Records
The City shall have the right to inspect Company's internal documents or records that
are required expressly or by inference pursuant to this Agreement, or any other
documents or records of Company or its Affiliates that the City shall deem, in its sole
discretion, necessary to evaluate Company's performance provided for in this
Agreement.
ARTICLE 9
INDEMNIFICATION, INSURANCE AND BOND
9.1 Indemnification
Company hereby agrees to and shall indemnify and hold harmless the City,its Council,elected
and appointed board or commission members, officers, employees, volunteers and agents
(collectively, "Indemnitees") from and against any and all loss, liability, penalty, forfeiture,
claim,demand,action,proceeding or suit in law or equity of any and every kind and description
(induding,but not limited to,injury to and death of any Person and damage to property,or for
contribution or indemnity claimed by third parties) arising or resulting from or in any way
connected with (1) the negligent or intentional conduct of Company, its officers, employees,
agents,contractors and/or subcontractors in performing services under this Agreement;(2)the
failure of Company,its officers,employees,agents,contractors and/or subcontractors to comply
in all respects with the provisions of this Agreement, applicable laws (including, without
limitation, the Environmental Laws), ordinances and regulations, and/or applicable permits
and licenses; (3) the acts of Company, its officers, employees, agents, contractors and/or
subcontractors in performing services under this Agreement for which strict liability is imposed
by law(including,without limitation,the Environmental Laws). The foregoing indemnity shall
apply regardless of whether such loss, liability, penalty, forfeiture, claim, demand, action,
proceeding, suit, injury, death or damage is also caused in part by any of the Indemnitees'
negligence, but shall not extend to matters resulting from an Indemnitee's sole negligence,
willful misconduct or breach of this Agreement. Company further agrees to and shall, upon
July 1,2020 66 City of Cathedral City
demand of the City, at Company's sole cost and expense, defend (with attorneys acceptable to
the City)the Indemnitees against any claims,actions,suits in law or equity or other proceedings,
whether judicial,quasi-judicial or administrative in nature,arising or resulting from any of the
aforementioned events.
Company, upon demand of the City, made by and through the City Attorney, shall indemnify
and hold harmless and appear in and defend the Indemnitees,against any claims or actions by
third parties, whether judicial, administrative or otherwise, including, but not limited to
disputes and litigation over the definitions of "Solid Waste" or "Recyclable Material" or the
limits of the City's authority with respect to the grant of licenses, this or agreements, exclusive
or otherwise, asserting rights under the Dormant Commerce Clause or federal or state laws to
provide Solid Waste services in the City. This provision shall survive the expiration of the
period during which Collection services are to be provided under this Agreement The City and
Company agree to confer following any trial to decide jointly whether to appeal or to oppose
any appeal. In the event the City and the Company jointly agree to appeal, or to oppose any
appeal,the City and the Company agree to share equally the costs of appeals. Should either the
City or the Company decide to appeal, or to oppose an appeal, and the other decide not to
appeal,or to oppose an appeal, the party which decides to appeal,or to oppose an appeal,shall
bear all fees and costs of the appeal or the opposition to the appeal.
Company's duty to indemnify and defend the Indemnitees as set out herein shall survive the
expiration or earlier termination of this Agreement
9.2 Hazardous Substances Indemnification
a) Without regard to any insurance coverage or requirements, and without limiting the
above general indemnification obligation in any way,Company specifically agrees to and shall,
to the maximum extent permitted by law,defend (with counsel acceptable to City),reimburse,
indemnify, and hold harmless Indemnitees from and against any and all claims, actions,
liabilities,damages,demands,judgments,losses,costs,liens,expenses,suits,actions,attorneys'
fees, consultant fees, penalties and any and all other losses, damages, fees and expenses of
whatever kind or nature ("Claims") (including but not limited to response costs, investigative
costs, assessment costs, monitoring costs, treatment costs, cleanup costs, removal costs,
remediation costs, and similar costs, damages and expenses) that arise out of or are alleged to
arise out of or in any way relate to any action,inaction or omission of Company that
i) results in any demand, claim, notice, order, or lawsuit, asserting that any
Indemnitee is liable,responsible or in any way obligated to investigate,assess, monitor,study,
test, treat, remove, remediate, or otherwise cleanup, any Hazardous Contaminant (as defined
herein);or
July I,2020 67 City of Cathedral City
ii) relates to material Collected, transported, Recyded, processed, treated or
Disposed of by Company.
b) Company's obligations pursuant to this section shall apply,without limitation,to:
i) any Claims brought pursuant to or based on the provisions of any Environmental
Law;
ii) any Claims based on or arising out of or alleged to be arising out of the ownership,
use,lease,sale, design,construction,maintenance or operation by Company of any Facility;
iii) any Claims based on or arising out of or alleged to be arising out of Company's
marketing, sale, distribution, storage, transportation, Disposal, processing or use of any
material;
iv) any Claims based on or arising out of or alleged to be arising out of any breach of
any express or implied warranty, representation or covenant arising out of or related to this
Agreement.
c) The foregoing indemnity and defense obligations shall apply irrespective of any
allegation, or actual or ultimate finding,of negligence of intentional conduct on the part of the
Company or its Affiliates.
d) For purposes of this Article, the term "Hazardous Contaminant" shall mean any
Hazardous Substance, any Hazardous Waste any crude oil or refined or unrefined petroleum
product or any fraction or derivative thereof; and any asbestos or asbestos-containing material.
The term "Hazardous Contaminant" shall also include any and all amendments to any
referenced statutory or regulatory provisions made before or after the date of execution of this
Agreement
e) THE PROVISIONS OF THIS SEC:l'ION SHALL NOT TERMINATE OR EXPIRE AND
SHALL BE GIVEN THE BROADEST POSSIBLE INTERPRETATION AND SHALL SURVIVE
THE EXPIRATION OR EARLIER TERMINATION OF THIS AGREEMENT.
9.3 AB 939,AB341 and AB 1826 Indemnification and Guarantee
a) To the extent authorized by law, Company agrees to indemnify and hold harmless City
from and against all fines and/or penalties imposed by CalRecycle in the event the source
reduction and Recycling goals or any other requirement of AB 939,AB 341,and AB 1826 are not
met by City with respect to the waste stream Collected under this Agreement, except to the
extent resulting from City's sole negligence,willful misconduct or breach of this Agreement.
July 1,2020 68 City of Cathedral City
b) Company warrants and represents that it is familiar with City's waste characterization
study as set forth in City's Source Recovery and Recycling Element, and that Company has the
ability to and will provide sufficient programs and services to ensure City will meet or exceed
the Diversion requirements (including, without limitation, amounts of Solid Waste to be
Diverted, time frames for Diversion, and any other requirements) set forth in or promulgated
pursuant to AB 939, AB 341, and AB 1826, as they may be amended, superseded or
supplemented..
c) As used in this Agreement,any reference to CalRecycle is intended to refer to the State of
California Department of Resources Recycling and Recovery, as currently constituted, and to
any successor, substitute or companion agency that may exercise any powers that are or were
within the subject matter jurisdiction of CalRecycle during any portion of the Term of this
Agreement.
9.4 Insurance
The City does not,and shall not,waive any rights against Company which it may have by reason
of the aforesaid indemnification, defense and hold harmless provisions because of acceptance
by the City or the deposit with the City by Company of the insurance policies described in this
Section.
9.4.1 Minimum Scope of Insurance
Coverage shall be at least as broad as:
a) The most recent editions of Insurance Services Office Commercial General
Liability coverage("occurrence"form CG 0001).
b) The most recent editions of Insurance Services Office form number CA 0001
covering Automobile Liability,code 1 "any auto" and endorsement CA 0025.
c) Workers' Compensation insurance as required by the Labor Code of the State of
California and Employers Liability insurance.
9.4.2 Minimum Limits of Insurance
Company shall maintain in force for the Term of this Agreement limits no less than
a. Comprehensive General Liability: Ten Million Dollars ($10,000,000) limit
aggregate and Ten Million Dollars($10,000,000)limit per occurrence for bodily
injury,personal injury and property damage.Such limits can be achieved through
a combination of primary and excess liability policies.
July 1,2020 69 City of Cathedral City
b. Automobile Liability:Ten Million Dollars($10,000,000)limit aggregate and Ten
Million Dollars($10,000,000)limit per accident for bodily injury and property
damage.Such limits can be achieved through a combination of primary and
excess liability policies.
c. Workers'Compensation and Employers Liability: Workers'compensation limits
as required by the Labor Code of the State of California and Employers Liability
limits of One Million Dollars($1,000,000)per accident
9.4.3 Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by the City.
At the option of the City,either: the insurer shall reduce or eliminate such deductibles or
self-insured retention's as respects the Indemnitees; or Company shall procure a bond
guaranteeing payment of losses and related investigations, claim administration and
defense expenses in the amount of such deductibles or self-insured retentions.
9.4.4 Other Insurance Provisions
The policies are to contain,or be endorsed to contain,the following provisions.
9.4.4.1 General Liability and Automobile Liability Coverages
a) The Indemnitees are to be named as additional insureds as respects:liability
arising out of activities performed by or on behalf of Company; products and
completed operations of Company;premises owned,leased or used by Company;
or vehicles owned, leased, hired or borrowed by Company. The coverage shall
contain no special limitations on the scope of protection afforded to the
Indemnitees.
b) Company's insurance coverage shall be primary insurance as respects the
Indemnitees. Any insurance or self-insurance maintained by the Indemnitees
shall be excess of Company's insurance and shall not contribute with it.
c) Any failure to comply with reporting provisions of the policies shall not
affect coverage provided to the Indemnitees.
d) Coverage shall state that Company's insurance shall apply separately to
each insured against whom claim is made or suit is brought, except with respect
to the limits of the insurer's liability.
July 1,2020 70 City of Cathedral City
9.4.4.2 WorkersCompensation and Employers Liability Coverage
The insurer shall agree to waive all rights of subrogation against the Indemnitees
for losses arising from work performed by Company for the City.
9.4.4.3 All Coverages
Each insurance policy required by this clause shall be endorsed to state that
coverage shall not be suspended, voided, canceled by any party, reduced in
coverage or in limits except after one hundred twenty (120) days prior written
notice by certified mail,return receipt requested,has been given to the City.
1 9.4.5 Acceptability of Insurers
The insurance policies required by this Section shall be issued by an insurance company
or companies authorized to do business in the State of California and with a rating in the
most recent edition of Best's Insurance Reports of size category VII or larger and a rating
classification of A or better.
9.4.6 Verification of Coverage
Company shall furnish the City with certificates of insurance and with original
endorsements affecting coverage required by this Section 9.4. The certificates and
endorsements for each insurance policy are to be signed by a Person authorized by that
insurer to bind coverage on its behalf. The certificates and endorsements are to be on
forms provided by or acceptable to the City and are to be received and approved by the
City before work commences. The City reserves the right to require complete, certified
copies of all required insurance policies,at any time.
Renewal certificates will be furnished periodically to the City to demonstrate
maintenance of the required coverage throughout the Term.
9.4.7 Contractors and Subcontractors
1 Company shall include all contractors and subcontractors as insureds under its policies
or shall furnish separate certificates and endorsements for each the contractor and
subcontractor. All coverages for contractor and subcontractors shall be subject to all of
1
the requirements stated herein.
1
July 1, 2020 71 City of Cathedral City
1
9.4.8 Required Endorsements
a) The Workers' Compensation policy shall contain an endorsement in substantially
the following form:
"Thirty (30) days prior written notice by certified mail, return receipt requested,
shall be given to the City in the event of cancellation, reduction in coverage, or
non-renewal of this policy. Such notice shall be sent to:
City Manager
City of Cathedral City
68700 Avenida Lalo Guerrero
Cathedral City,CA 92234
b) The General Liability policy shall contain endorsements in substantially the
following form:
i) "Thirty (30) days prior written notice shall be given to the City in the event
of cancellation,reduction in coverage,or non-renewal of this policy. Such notice shall be
sent to:
City Manager
City of Cathedral City
68700 Avenida Lalo Guerrero
Cathedral City,CA 92234
ii) "The City, its Council, elected and appointed board or commission
members, officers, employees, volunteers and agents ("Additional Insureds") are
additional insureds on this policy."
iii) "This policy shall be considered primary insurance as respects any other
valid and collectible insurance maintained by the Additional Insureds,including any self-
insured retention or program of self-insurance, and any other such insurance shall be
considered excess insurance only."
iv) "Inclusion of the City as an insured shall not affect the Additional Insureds'
rights as respects any daim, demand, suit or judgment brought or recovered against
Company. This policy shall protect Company and the Additional Insureds in the same
manner as though a separate policy had been issued to each,but this shall not operate to
increase Company's liability as set forth in the policy beyond the amount shown or to
which Company would have been liable if only one party had been named as an insured."
July I,2020 72 City of Cathedral City
9.4.9 Other Insurance Requirements
a) In the event any services are delegated to another contractor or subcontractor,
Company shall require such contractor or subcontractor to provide statutory workers'
compensation insurance and employer's liability insurance for all of the other contractor's
or subcontractor's employees in accordance with this Section 9.4. The liability insurance
required by this Section 9.4 shall cover all contractors and subcontractors; alternatively,
a contractor or subcontractor must furnish evidence of insurance that meets all of the
requirements of this Section 9.4.
b) Company shall comply with all requirements of the insurers issuing policies. The
carrying of insurance shall not relieve Company from any obligation under this
Agreement. If any claim exceeding the amount of any deductibles or self-insured
reserves is made by any third Person against Company or any contractor or subcontractor
on account of any occurrence related to this Agreement,Company shall promptly report
the facts in writing to the insurance carrier and to the City.
c) If Company fails to procure and maintain any insurance required by this
Agreement, the City may take out and maintain, at Company's expense, such insurance
as it may deem proper and deduct the cost thereof from any moneys due Company.
9.5 Faithful Performance Bond
Concurrently with execution of this Agreement, Company shall deliver to the City a
performance bond, from an admitted surety insurer, in the amount of One Million Dollars
($1,000,000), similar to the form provided in Exhibit 3, which secures the faithful performance
of this Agreement, including, without limitation, payment of any penalty and the funding of
any work to cure a breach of this Agreement. The bond shall contain the original notarized
signature of an authorized officer of the surety and affixed thereto shall be a certified and current
copy of his power of attorney. The bond shall be unconditional and remain in force during the
entire Term of the Agreement and shall be null and void at the conclusion of the Term of this
Agreement only if Company promptly and faithfully performs all terms and conditions of this
Agreement.
9.6 Forfeiture of Performance Bond
In the event Company shall for any reason become unable to, or fail in any way to, perform as
required by this Agreement,the City may declare a portion or all of the performance bond which
is necessary to recompense and make whole the City, forfeited to the City. Upon partial or full
forfeiture of the performance bond, Company shall restore the performance bond to its face
amount within 30 days of the City's declaration. Failure to restore the performance bond to its
full amount within 30 days shall be a material breach of contract.
July 1,2020 73 City of Cathedral City
9.7 Performance Security Beyond Service Term
Some Agreement requirements extend beyond the Term of this Agreement and other
requirements, such as minimum Diversion Rates per Section 4.7.11, will not be substantiated
until after the final service date. Therefore, until receiving a written release from the City,
Company shall not terminate and shall renew the performance bond required in Section 9.5 to
ensure continuous availability to the City. Permission from the City to release the performance
bond does not relieve Company of payments to the City that may be due, or may become due,
or any other liability arising hereunder.
ARTICLE 10
CITY'S RIGHT TO PERFORM SERVICE
10.1 General
In addition to, but not in lieu of, any other rights or remedies City might have under this
Agreement,at law or in equity,in the event that Company,for any reason whatsoever(including
interruptions and discontinuance due to events described in Section 11.5), fails, refuses or is
unable to provide any service within the scope of this Agreement,at the time and in the manner
provided in this Agreement, for a period of more than forty-eight(48) hours, and if, as a result
thereof,the City should find a resulting danger or menace to the public health,safety or welfare,
then the City shall have the right, but not the obligation, during the period of such emergency
as determined by the City,and upon notice to Company as hereinafter set forth,(1)to perform,
or cause to be performed, such services with its own or other personnel without liability to
Company; and/or (2) to take possession of any or all of Company's land, equipment or other
property as maybe used or useful to perform said services.
Notice of Company's failure,refusal,neglect or inability to perform services within the scope of
this Agreement,and the City's intent to exercise its rights pursuant to this Article,may be given
orally by telephone to Company at its principal office and shall be effective immediately.
Written confirmation of such oral notification shall be sent to Company within one business day
of the oral notification.
Company further agrees that in such event:
a) It will take direction from the City to affect the transfer of possession of equipment and
property to the City for the City's use.
July 1. 2020 74 City of Cathedral City
b) It will, if the City so requests, keep in good repair and condition all of such equipment
and property,provide all motor vehicles with fuel,oil and other service,and provide such other
service as may be necessary to maintain said property in operational condition.
c) The City may immediately engage all or any personnel necessary or useful for the
performance of Solid Waste services,including, if the City so desires, employees previously or
then employed by Company. Company further agrees, if the City so requests, to furnish the
City the services of any or all management or office Personnel employed by Company whose
assistance is necessary or useful and for the billing and Collection of fees for these services.
The City agrees that it assumes complete responsibility for the proper and normal use of such
equipment and Facilities while in its possession.
If the interruption or discontinuance in service is caused by any of the reasons listed in Section
11.5,the City shall pay to Company the reasonable rental value of the equipment and Facilities,
possession of which is taken by the City, for the period of the City's possession, if any,which
extends beyond the period of time for which Company has rendered bills in advance of service,
for the class of service involved.
10.2 Billing and Compensation to the City During the City's Possession
During such time that the City is providing Solid Waste services,as above provided,Company
shall bill and collect payment from all users of the above-mentioned services as described in
Section 5.1. Company further agrees that,in such event,it shall reimburse the City for any and
all costs and expenses incurred by the City beyond that billed and received by the City for
providing said services. Such reimbursement shall be made from time to time after submission
by the City to Company of each statement listing such costs and expenses,but in no event later
than five(5)working days from and after each such submission.
10.3 City's Right to Relinquish Possession
It is further mutually agreed that the City may at any time at its discretion relinquish possession
of any or all of the above-mentioned property to Company and thereupon demand that
Company resume the Solid Waste services as provided in this Agreement,whereupon Company
shall be bound to resume the same.
10.4 City's Possession Not A Taking
The City's exercise of its rights under this Artide 10 does not(1) constitute a taking of private
property for which compensation must be paid; (2)create any liability on the part of the City to
Company;nor(3)exempt Company from the indemnity provisions of Article 9,which are meant
to extend to circumstances arising under this Section,provided that Company is not required to
indemnify the City against claims and damages arising from the sole negligence of the City, its
July 1,2020 75 City of Cathedral City
elective and appointive boards,commissions,officers,employees and a agents in the operation of
PPg P
Collection vehicles during the time the City has taken possession of such vehicles.
10.5 Duration of the City's Possession
The City's right pursuant to this Article 10 to retain temporary possession of Company's
Facilities and equipment, and to render Collection services, shall terminate when the City
determines that such services can be resumed by Company, or when the City no longer
reasonably requires such property or equipment. In any case, the City has no obligation to
maintain possession of Company's property or equipment and/or continue its use for any
period of time and may at any time,in its sole discretion,relinquish possession to Company.
ARTICLE 11
DEFAULT, REMEDIES AND LIQUIDATED DAMAGES
11.1 Events of Default
All provisions of this Agreement to be performed by Company are considered material. Each
of the following shall constitute an event of default.
11.1.1 Fraud or Deceit
If Company practices or attempts to practice any fraud or deceit upon the City.
11.1.2 Insolvency or Bankruptcy
If Company becomes insolvent, unable, or unwilling to pay its debts,files a bankruptcy
petition or takes steps to Iiquidate its assets.
11.1.3 Failure to Maintain Coverage
If Company fails to provide or maintain in full force and effect the Workers'
Compensation,liability,or indemnification coverage as required by this Agreement.
11.1.4 Violations of Regulation
If Company violates any orders or filings of any regulatory body having jurisdiction over
Company or City relative to services provided pursuant to this Agreement,provided that
Company may contest any such orders or filings by appropriate proceedings conducted
July 1,2020 76 City of Cathedral City
in good faith,in which case no breach of this Agreement shall be deemed to have occurred
during the pendency of such contest
11.1.5 Failure to Perform
If Company ceases to provide any services as required under this Agreement for a period
of two (2) consecutive days or more, for any reason within the control of Company,
including labor disputes.
11.1.6 Failure to Pay
If Company fails to make any payments required under this Agreement and/or refuses
to provide the City, within ten (10) days of the demand therefor, with information,
reports,and/or records as required by this Agreement
11.1.7 Acts or Omissions
Any other act or omission by Company which violates the terms, conditions, or
requirements of this Agreement, the California Integrated Waste Management Act of
1989,any Environmental law as it may be amended from time to time,or any law,statute,
ordinance, order, directive, rule, or regulation issued thereunder, and which is not
corrected or remedied within the time set in the written notice of the violation or, if
Company cannot reasonably correct or remedy the breach within the time set forth in
such notice, if Company should fail to commence to correct or remedy such violation
within the time set forth in such notice and to thereafter diligently effect such correction
or remedy.
11.1.8 False or Misleading Statements
Any representation or disclosure made to the City by Company in connection with or as
an inducement to entering into this Agreement, or any future amendment to this
Agreement,which proves to be false or misleading in any material respect as of the time
such representation or disclosure is made, whether or not any such representation or
disclosure appears as part of this Agreement
11.1.9 Attachment
There is a seizure of, attachment of, or levy on, the operating equipment of Company,
including without limits its equipment, maintenance or office facilities, or any part
thereof.
July 1, 2020 77 City of Cathedral City
11.1.10 Suspension or Termination of Service
There is any termination or suspension of the transaction of business by Company,
including without limit, due to labor unrest including strike, work stoppage or
slowdown, sick-out, picketing, or other concerted job action lasting more than two (2)
consecutive days.
11.1.11 Failure to Provide Assurance of Performance
If Company fails to provide reasonable assurances of performance as required under
Section 11.7.
The Company shall be given forty-eight(48)hours from notification by the City to cure
only those defaults arising under subsections E,F,I,J and K;provided,however,that the
City shall not be obligated to provide Company with a notice and cure opportunity if
Company has committed the same or similar breach within the preceding twenty-four
(24)month period.
11.2 Criminal Activity of Company
Should Company or any of its officers or directors be found guilty of felonious conduct related
to the performance of this Agreement, or of felonious conduct related to anti-trust activities,
illegal transport or Disposal of hazardous or toxic materials, or bribery of public officials, the
City reserves the right to unilaterally terminate this Agreement or impose other such sanctions
(which may include financial sanctions,temporary suspensions or any other condition deemed
appropriate short of termination) as it shall deem proper.
11.3 Right to Terminate Upon Default
Upon an event of default by Company,the City shall have the right to terminate this Franchise
and this Agreement upon ten (10) days' notice if the public health or safety is threatened, or
otherwise upon thirty(30)days'notice,but without the need for any hearing,suitor legal action.
The City's rights to terminate this Agreement, or to take possession of Company's Facility are
not exdusive, and the City's termination of this Agreement shall not constitute an election of
remedies. Instead, said remedies shall be in addition to any and all other legal and equitable
rights and remedies which the City may have.
By virtue of the nature of this Agreement, the urgency of timely continuous and high- quality
service, the time required to effect alternative service, and the rights granted by the City to
Company, the remedy of damages for a breach hereof by Company is inadequate and the City
shall be entitled to injunctive relief.
July 1,2020 78 City of Cathedral City
11.4 Liquidated Damages
11.4.1 General
The City finds, and Company agrees, that as of the time of the execution of this
Agreement, it is impractical, if not impossible, to reasonably ascertain the extent of
damages which shall be incurred by the City as a result of a breach by Company of its
obligations under this Agreement. The factors relating to the impracticability of
ascertaining damages include,but are not limited to, the fact that (i)substantial damage
results to members of the public who are denied services or denied quality or reliable
service; (ii) such breaches cause inconvenience, anxiety, frustration, and deprivation of
the benefits of the Agreement to individual members of the general public for whose
benefit this Agreement exists, in subjective ways and in varying degrees of intensity
which are incapable of measurement in precise monetary terms; (iii) the services
provided under this Agreement might be available at substantially lower costs than
alternative services and the monetary loss resulting from denial of services or denial of
quality or reliable services is impossible to calculate in precise monetary terms; and (iv)
the termination of this Agreement for such breaches, and other remedies are, at best, a
means of future correction and not remedies which make the public whole for past
breaches.
11.4.2 Service Performance Standards; Liquidated Damages for Failure to Meet
Standards
The Parties further acknowledge that consistent, reliable Solid Waste Collection service
is of utmost importance to the City and that the City has considered and relied on
Company's representations as to its quality of service commitment in awarding the
Franchise to it. The Parties further recognize that some quantified standards of
performance are necessary and appropriate to ensure consistent and reliable service and
performance. The Parties further recognize that if Company fails to achieve the
performance standards, or fails to submit required documents in a timely manner, the
City and its residents will suffer damages and that it is and will be impractical and
extremely difficult to ascertain and determine the exact amount of damages which the
City will suffer. Therefore, without prejudice to the City's right to treat such non-
performance as an event of default under this Article 11, the Parties agree that the
following liquidated damage amounts represent a reasonable estimate of the amount of
such damages considering all of the circumstances existing on the date of this Agreement,
including the relationship of the sums to the range of harm to the City that reasonably
could be anticipated and the anticipation that proof of actual damages would be costly
or impractical. In placing their initials at the places provided, each party specifically
confirms the accuracy of the statements made above and the fact that each party has had
July 1,2020 79 City of Cathedral City
ample opportunity to consult with legal counsel and obtain an explanation of the
liquidated damage provisions at th time that the Agreement was made.
Company City
Initial Here Initial Here IA
Company agrees to pay (as liquidated damages and n t as a penalty) the amounts set
forth below:
11.4.2.1 Collection Reliability
a) For each failure to commence service to a new Customer account within
seven(7)days after order,which exceed five(5)such failures annually:
$150.00
b) For each failure to Collect Solid Waste,which has been properly set out for
Collection,from an established Customer account on the scheduled Collection day
which exceeds ten(10)such failures annually: $150.00
c) For each failure to Collect Solid Waste,which has been properly set out for
Collection, from the same Customer on two (2) consecutive scheduled pickup
days: $150.00
11.4.2.2 Collection Quality
a) For each occurrence of violating a Transfer Station conditional use permit
$500.00
b) For each occurrence of uncompensated damage to private property which
exceeds five(5) such occurrences annually: $250.00
c) For each occurrence of failure to properly return empty Containers to avoid
pedestrian or vehicular traffic impediments or to place Cans upright with lids
secured (in areas where Customers own their Containers, if applicable) which
exceeds ten(10)service locations annually: $150.00
d) For each occurrence of excessive noise or discourteous behavior:
$250.00
e) For each failure to clean up Solid Waste spilled from Solid Waste Containers
which exceeds ten(10) such failures annually: $150.00
July 7,2020 80 City of Cathedral City
f) For each occurrence of Collecting Solid Waste during unauthorized hours
which exceeds five (5)such occurrences annually: $250.00
g) For each failure to clean or replace a Commercial Container in accordance
with the terms of this Agreement which exceeds ten(10)such failures annually:
$150.00
h) For each failure to replace locks on locking Bins after Collection in accordance
with Section 4.6.1 which exceeds three(3)annually: $ 50.00
11.4.2.3 Customer Responsiveness
a) For each failure to initially respond to a Customer complaint within one(1)
business day: $100.00
b) For each failure to process Customer complaints to the City as required by
Article 5 herein: $500.00
c) For each failure to remove graffiti from Containers, or to replace with
Containers bearing no graffiti,within one business day of request from City or a
Customer: $100.00
d) For each failure of a Company field representative to annually contact a
Commercial account. $50.00
per account per year
11.4.2.4 Timeliness of Submissions to the City
Arty report shall be considered late until such time as a correct and complete report
is received by the City. For each calendar day a report is late,the daily liquidated
damage amount shall be:
a) Monthly Reports: $25 per day
b) Quarterly Reports: $100 per day
c) Annual Reports: $350 per day
d) For each day beyond thirty (30) calendar days after the due date that
Company has not submitted complete and accurate supporting data and
calculations for Franchise and Recycling Fees paid, or to be paid, in accordance
with Article 3 of the Agreement,Company shall pay: $50.00/day
July 1, 2020 81 City of Cathedral City
11.4.2.5 Accuracy of Billing
a) Each Customer invoice that is not prepared in accordance with the City's
approved rate schedule that is not cured within 30 days of initial invoicing:
$250.00
b) Each occurrence in which a service address is"double billed"with multiple
invoices sent to different billing addresses (for example, both a tenant and an off-
site property owner are billed for service at the same location):
$250.00
11.4.2.6 Implementation of Public Education Plan
For each day past the agreed upon deadline that Company fails to perform a task
set forth in its public education plan:
$100 per day
11.4.2.9 Cooperation with Service Provider Transition
a) For each day routing information requested by City in accordance with
Section 12.9 is received after City-established due dates,both for preparation of a
request for proposals and for new service provider's implementation of service:
$1,000/day
b) For each day delivery of keys,access codes,remote controls,or other means
of access to Solid Waste Containers is delayed beyond one (1) day prior to new
service provider servicing Customers with access issues, as described in Section
12.9: $1,000/day
c) For delay in not meeting the requirements contained in Section 12.9 in a
timely manner, in addition to the daily liquidated damages pursuant to a) and b)
of this subsection,liquidated damages of: $35,000
11.4.2.10 General Agreement Adherence
For each day that Company fails to provide services required under the
Agreement, or comply with terms of the Agreement, five (5) business days after
receipt of written notification from City that such services are not being provided
or terms are not being met $300.00/day
Liquidated damages will only be assessed after Company has been given the opportunity
but failed to rectify the damages as described in this Agreement.
July 1,2020 82 City of Cathedral City
The City may determine the occurrence of events giving rise to liquidated damages
through the observation of its own employees or representative or investigation of
Customer complaints.
Prior to assessing liquidated damages,the City shall give Company notice of its intention
to do so. The notice will include a brief description of the incident(s)/non-performance.
Company may review (and make copies at its own expense) all non-confidential
information in the possession of the City relating to incidents)/non-performance.
Company may,within ten(10)days after receiving the notice,request a meeting with the
City Manager or his or her designee. Company may present evidence in writing and
through testimony of its employees and others relevant to the incident(s)/non-
performance. The City Manager or his or her designee will provide Company with a
written explanation of his or her determination on each incidents)/non-performance
prior to authorizing the assessment of liquidated damages. The decision of the City
Manager or his or her designee shall be final.
11.4.3 Amount
The City may assess liquidated damages for each calendar day or event, as appropriate,
that Company is determined to be liable in accordance with this Agreement.
11.4.4 Timing of Payment
Company shall pay any liquidated damages assessed by the City within ten (10) days
after they are assessed. If they are not paid within the ten(10) day period, the City may
proceed against the performance bond required by the Agreement or order the
termination of the Franchise granted by this Agreement, or exercise any other right or
remedy available to City under this Agreement or at law or in equity,or any combination
of these remedies.
11.5 Excuse from Performance
The Parties shall be excused from performing their respective obligations hereunder in the event
they are prevented from so performing by reason of floods,earthquakes,other natural disasters,
war, civil insurrection, riots, acts of any government (including judicial action), picketing at
Customer Collection locations that blocks access to Container pick up points,and other similar
catastrophic events which are beyond the control of and not the fault of the party claiming
excuse from performance hereunder. Labor unrest, including but not limited to strike, work
stoppage or slowdown, sick-out, picketing, or other concerted job action conducted by
Company's employees or directed at Company is not an excuse from performance and
Company shall be obligated to continue to provide service notwithstanding the occurrence of
any or all of such events.
July 1,2020 83 City of Cathedral City
The party claiming excuse from performance shall, within two (2) days after such party has
notice of such cause,give the other party notice of the facts constituting such cause and asserting
its claim to excuse under this Section.
The interruption or discontinuance of Company's services caused by one or more of the events
excused shall not constitute a default by Company under this Agreement. Notwithstanding the
foregoing or any other provision herein, however, if Company is excused from performing its
obligations hereunder for any of the causes listed in this Section for a period of seven (7) days
or more, the City shall nevertheless have the right, in its sole discretion, to terminate this
Agreement by giving ten (10) days' notice, in which case the provisions relative to taking
possession of Company's land, equipment and other property and engaging Company's
personnel in Article 10 and this Article 11 will apply.
11.6 Arbitration
Any dispute arising out of or relating to this Agreement, which dispute involves claims or
controversies having no monetary value, or are in an amount or amounts, if combined, not
exceeding $25,000, shall be first mediated between the Parties. The party making demand for
mediation shall select a panel of three (3) mediators from those mediators listed and approved
by the local Superior Court of jurisdiction,and the party not selecting the panel shall choose one
(1)of the listed mediators who shall serve in that capacity. The Parties shall share equally in the
cost and expense of the mediation.
Any dispute arising out of or relating to this Agreement, which dispute involves claims or
controversies, having a monetary value in an amount or amounts, if combined,not exceeding
$25,000, which dispute was not resolved by mediation as required herein, shall be decided by
arbitration in accordance with the commercial rules of the American Arbitration Association
then pertaining,unless the Parties agree otherwise and consent,in writing,to a different method
of dispute resolution,including mediation or judicial arbitration.
Notice of the demand for arbitration is to be filed in writing with the other party to this
Agreement and with the American Arbitration Association. The demand is to be made within
a reasonable period of time after the claim, dispute, or other matter in controversy has arisen.
In no event, however,is the demand for arbitration to be made after the date when institution
of legal or equitable proceedings based on such claim, dispute or other matter in controversy
would be barred by the applicable statute of limitations.
Any award rendered by the arbitrator shall be final and judgment may be entered upon it in
accordance with applicable law in any court having jurisdiction thereof.
July 1,2020 84 City of Cathedral City
ti
Any dispute arising out of or relating to this Agreement, which dispute involves claims or
controversies in an amount or amounts, if combined, exceeding $25,000, shall not involve
arbitration, or any other method of dispute resolution, unless the Parties agree otherwise and
consent, in writing, but shall instead be brought in a court of competent jurisdiction in the
County of Riverside,State of California.
1
Venue for any action, including those actions subject to arbitration, shall be Riverside County.
Company hereby expressly waives any right to remove any such action to a County other than
I Riverside County as otherwise provided by California Code of Civil Procedure Section 394.
l
11.7 Assurance of Performance
The City may, at its option and in addition to all other remedies it may have, demand from
Company reasonable assurances of timely and proper performance of this Agreement,in such
form and substance as the City may require. If Company fails or refuses to provide satisfactory
assurances of timely and proper performance in the form and by the date required by the City,
such failure or refusal shall be an event of default.
ARTICLE 12
OTHER AGREEMENTS OF THE PARTIES
12.1 Relationship of Parties
The Parties intend that Company shall perform the services required by this Agreement as an
independent contractor engaged by the City and not as an officer or employee of the City nor as
a partner of or joint venture with the City. No employee or agent or Company shall be or shall
be deemed to be an employee or agent of the City. Except as expressly provided herein,
Company shall have the exclusive control over the manner and means of conducting the Solid
Waste Collection services performed under this Agreement, and all Persons performing such
services. Company shall be solely responsible for the acts and omissions of its officers,
employees,contractors,subcontractors,Affiliates and agents. Neither Company nor its officers,
employees, contractors, subcontractors, Affiliates nor agents shall obtain any rights to
retirement benefits, workers' compensation benefits, or any other benefits which accrue to the
City employees by virtue of their employment with the City.
12.2 Compliance with Law
In providing the services required under this Agreement,Company shall at all times,at its sole
cost,comply with all applicable laws and regulations of the United States,the State of California,
July 1,2020 85 City of Cathedral City
and local agencies. The City shall comply with all applicable regulations promulgated by
federal,state,regional or local administrative and regulatory agencies,now in force and as they
may be enacted,issued or amended during the Term.
12.3 Governing Law
This Agreement shall be governed by,and construed and enforced in accordance with,the laws
of the State of California.
12.4 Jurisdiction
Any lawsuits between the Parties arising out of this Agreement shall be brought and concluded
in the courts of the State of California,which shall have exclusive jurisdiction over such lawsuits.
With respect to venue, the Parties agree that this Agreement is made in and will be performed
in Riverside County.
12.5 Assignment
Except as may be provided for in Article 10(City's Right to Perform Service),Company shall not
assign its rights, nor delegate, subcontract or otherwise transfer its obligations under this
Agreement(collectively referred to as an"Assignment") to any other Person without the prior
written consent of City. Any such Assignment made without the consent of City shall be void
and the attempted Assignment shall constitute a material breach of this Agreement.
The term "Assignment" shall be given the broadest possible interpretation, and shall include,
but not be limited to (i) a sale, exchange or other transfer to a third party of substantially all of
Company's assets dedicated to service under this Agreement; (ii) a sale, exchange or other
transfer of outstanding membership interest in Company to a third party provided said sale,
exchange or transfer results in a change of control of Company; (iii) any dissolution,
reorganization, consolidation, merger, re-capitalization, stock issuance or re-issuance, voting
trust,pooling agreement,escrow arrangement,liquidation or other transaction which results in
a change of control of Company; (iv) any Assignment by operation of law, induding those
resulting from mergers or acquisitions by or of Company of any of its Affiliates,insolvency or
bankruptcy,making assignment for the benefit of creditors,writ of attachment for an execution
being levied against this Agreement,appointment of a receiver taking possession of Company's
property, or transfer occurring in the event of a probate proceeding, which results in a change
of control of Company; and (v) any combination of the foregoing(whether or not in related or
contemporaneous transactions)which has the effect of any such transfer(under clause(i)above)
or results in a change of control of Company.
July 1,2020 86 City of Cathedral City
Notwithstanding the foregoing, nothing is this Section shall prohibit or prevent an assignment
by or among Company's present members,whether as trustees of trusts or otherwise, or to or
among trusts controlled by such members or trustees,so long as such assignment does not result
in a change of control of Company.
For the purpose of this Section,the term"change of control of company" means that Company's
present members shall cease to own, individually or collectively, either directly or indirectly
through one or more Affiliates or one or more trusts as to which one or more of such individuals
is or becomes a trustee,more that forty-nine (49) percent of the voting membership interests in
Company.
Company acknowledges that this Agreement involved rendering a vital service to City's
residents and businesses,and that City has selected Company to perform the services specified
herein based on (1) Company's experience, skill and reputation for conducting its Solid Waste
handling services in a safe, effective and responsible fashion, at all times in keeping with
applicable Environmental Laws, regulations and best Solid Waste management practices, and
(2) Company's financial resources to maintain the required equipment and to support its
indemnity obligations to City under this Agreement. City has relied on each of these factors,
among others,in choosing Company to perform the services to be rendered by Company under
this Agreement.
If Company requests City's consideration of and consent to an Assignment,City may deny or
approve such request in its sole and absolute discretion. Any request for an Assignment must
be approved by the City Manager, and no request by Company for consent to an Assignment
need be considered by City unless and until Company has met(or with respect to matters that
would only occur upon completion of the Assignment if approved,made reasonable assurances
that it will meet) the following requirements:
a) Company shall pay City its reasonable expenses for attorney's fees and investigation costs
necessary to investigate the suitability of any proposed assignee,and to review and finalize any
documentation required as a condition for approving any such Assignment. An advance
payment toward expenses may be requested by City prior to City consideration of any
Assignment request and Company shall be responsible to pay all costs incurred by City in
considering a request for Assignment,including those in excess of the aforesaid deposit amount,
regardless of whether City consents to the Assignment.
b) Company shall pay the City a transfer fee equal to one percent(1%)of the Gross Receipts,
not to exceed $150,000, it, or its assignee, will receive during the remaining Term of the
Agreement,as estimated by City.
c) Company shall furnish City with audited financial statements for Company and the
proposed assignee's operations for the immediately preceding three(3)operating years.
July i,2020 87 City of Cathedral City
d) A proforma financial statement (income statement and balance sheet) for the proposed
assignee with the projected results of operations assuming that the Assignment is completed.
Such proforma financial statement shall reflect any debt to be incurred by the assignee as part
of the acquisition of Company's operations.
e) Company shall furnish City with satisfactory proof: (i) that the proposed assignee has at
least ten(10)years of Solid Waste management experience on a scale equal to or exceeding the
scale of operations conducted by Company under this Agreement (ii) that in the last five (5)
years,the proposed assignee has not suffered any significant citations or other censure from any
federal, state or local agency having jurisdiction over its Solid Waste management operations
due to any significant failure to comply with state,federal or local Environmental Laws and that
the assignee has provided City with a complete list of any such citations and censures; (iii) that
the proposed assignee has at all times conducted its operations in an environmentally safe and
conscientious fashion; (iv) that the proposed assignee conducts its Solid Waste management
practices in accordance with sound Solid Waste management practices in full compliance with
all federal,state and local laws regulating the Collection and Disposal of Solid Waste including
Hazardous Substances; and, (v) of any other information required by City to ensure the
proposed assignee can fulfill the terms of this Agreement in a timely,safe and effective manner.
Under no circumstances shall City be obliged to consider any proposed Assignment by City if
Company is in default at any time during the period of consideration. Should City consent to
any Assignment request, such Assignment shall not take effect until all conditions relating to
City's approval have been met.
An Assignment among the existing shareholders or their related trusts shall not require the
City's prior approval and shall not be subject to the transfer fees,submittals,and investigations
articulated in this Section 12.5. Company shall notify City in writing of any Assignment among
its existing shareholders or their related trusts within thirty (30)days of the event.
12.6 Affiliated Companies
Company's accounting records shall be maintained on a basis showing the results of Company's
operations under this Agreement separately from operations in other locations, as if Company
were an independent entity providing service only to the City. The costs and revenues
associated with providing service to the City shall not be combined,consolidated or in any other
way incorporated with those of other operations conducted by Company in other locations, or
with those of an Affiliate.
If Company enters into any financial transactions with an Affiliate for the provision of labor,
equipment, supplies, services, capital, etc., related to the furnishing of service under this
Agreement,that relationship shall be disclosed to the City and the related expenses segregated
July 1,2020 88 City of Cathedral City
in the financial reports submitted to the City. In such event,the City's rights to inspect records,
and obtain financial data shall extend to such Affiliate.
Any application for a change of ownership or a Franchise transfer shall be made in a manner
prescribed by the City Manager or his designee. The application shall include a transfer fee in
an amount to be set by a resolution of the City Council,to cover the reasonable costs of all direct
and indirect administrative expenses of the City,including,without limitation,consultants and
attorneys, necessary to analyze the application and to reimburse the City for all its direct and
indirect expenses. The applicant shall pay such invoices prior to any authorized change of
ownership or Franchise transfer becoming effective.
12.7 Contracting or Subcontracting
Company shall not engage any contractor or subcontractor for Collection, transfer, processing,
Recycling or Disposal of Solid Waste without the prior written consent of the City.
12.8 Binding on Assigns
The provisions of this Agreement shall inure to the benefit of and be binding on the permitted
assigns of the Parties.
12.9 Transition to the Next Company
Prior to,and at,the end of the Term or in the event this Agreement is terminated for cause prior
to the end of the Term,Company shall cooperate fully with City and any subsequent Solid Waste
enterprise it designates to assure a smooth transition of Solid Waste handling services.
Company's cooperation shall include, but not be limited to, providing route lists, Billing
information and other operating records needed to service all Premises covered by this
Agreement. Company's failure to cooperate with City prior to and following termination shall
be conclusively presumed to be grounds for specific performance of this covenant and/or other
equitable relief necessary to enforce this covenant.
Company shall provide a new service provider with all keys,security codes and remote controls
used to access garages, Bin enclosures and other property as applicable. Company shall be
responsible for coordinating transfer immediately after Company's final pickups, so as not to
disrupt service. Company shall provide City with detailed route sheets containing service
names and addresses, Billing names and addresses, monthly rate and service levels (number
and size of Containers and pickup days)at least 90 days prior to the transition date,and provide
an updated list two weeks before the transition and a final list of changes the day before the
transition. Company shall provide means of access to the new service provider at least one full
business day prior to the first day of Collection by the new service provider,and always within
July 1,2020 89 City of Cathedral City
sufficient time so as not to impede in any way the new service provider from easily servicing all
Containers.
12.10 Parties in Interest
Nothing in this Agreement,whether express or implied,is intended to confer any rights on any
Persons other than the Parties to it and their representatives,successors and permitted assigns.
12.11 Waiver
The waiver by either party of any breach or violation of any provisions of this Agreement shall
not be deemed to be a waiver of any breach or violation of any other provision nor of any
subsequent breach or violation of the same or any other provision. The subsequent acceptance
by either party of any moneys which become due hereunder shall not be deemed to be a waiver
of any pre-existing or concurrent breach or violation by the other party of any provision of this
Agreement.
12.12 Company's Investigation
Company has made an independent investigation (satisfactory to it) of the conditions and
circumstances surrounding the Agreement and the work to be performed by it.
12.13 Condemnation
The City fully reserves the rights to acquire Company's property utilized in the performance of
this Agreement, by purchase or through the exercise of the right of eminent domain. This
provision is additive,and not intended to alter the rights of the Parties set forth in Article 10.
12.14 Notice
All notices, demands, requests, proposals, approvals, consents and other communications
which this Agreement requires, authorizes or contemplates shall be in writing and shall either
be personally delivered to the other party at the address below or be deposited in the United
States mail,first class postage prepaid,addressed as follows:
If to the City:
City Manager
City of Cathedral City
68700 Avenida Lalo Guerrero
Cathedral City,CA 92734
July 1,2020 90 City of Cathedral City
With a copy to:
Environmental Conservation Manager
City of Cathedral City
68700 Avenida Lalo Guerrero
Cathedral City,CA 92234
If to Company:
District Manager
Burrtec Waste and Recycling Services,LLC
41-575 Eclectic Street
Palm Desert,CA 92260
The address to which communications may be delivered may be changed from time to time by
a written notice given in accordance with this Section.
Notice shall be deemed given on the day it is personally delivered or,if mailed, three days from
the date it is deposited in the mail.
12.15 Representatives of the Parties
References in this Agreement to the"City"shall mean the City Council and all actions to be taken
by the City shall be taken by the City Council except as otherwise provided. The City Council
may delegate, in writing, authority to the City Manager, and/or to other City employees and
may permit such employees, in turn, to delegate in writing some or all of such authority to
subordinate employees. Company may rely upon actions taken by such delegates if they are
within the scope of the authority properly delegated to them.
Company shall,by the Effective Date,designate in writing a responsible officer who shall serve
as the representative of Company in all matters related to the Agreement and shall inform the
City in writing of such designation and of any limitations upon his or her authority to bind
Company. The City may rely upon action taken by such designated representative as actions of
Company unless they are outside the scope of the authority delegated to him/her by Company
as communicated to the City.
12.16 City Free to Negotiate with Third Parties
Notwithstanding the exclusive nature of the Franchise, the City may investigate all options for
the Collection,transporting,Recycling,processing and Disposal of Solid Waste at any time prior
to the expiration of the Term. Without limiting the generality of the foregoing, the City may
solicit proposals from Company and from third parties for the provision of Collection services,
July 7,2020 91 City of Cathedral City
Disposal services, Recycling services, Organics Waste services and processing, and any
combination thereof, and may negotiate and execute agreements for such services which will
take effect upon the expiration or earlier termination of this Agreement
12.17 Compliance with Municipal Code
Company shall comply with those provisions of the Municipal Code of the City which are
applicable, and with any and all amendments to such applicable provisions during the Term of
this Agreement Company and any contractors and subcontractor must maintain a current City
business license during the Term of this Agreement
12.18 Privacy
Company shall strictly observe and protect the rights of privacy of Customers. Information
identifying individual Customers or the composition or contents of a Customer's waste stream
shall not be revealed to any Person,governmental unit,private agency,company,or other entity
unless upon the authority of a court of law, by statute, or upon valid authorization of the
Customer. This provision shall not be construed to preclude Company from preparing,
participating in,or assisting in the preparation of waste characterization studies or waste stream
analyses which may be required by AB 939. This provision shall not apply to reports or records
provided to City pursuant to this Agreement so long as City maintains reports or records with
Customer identification or confidential information in accordance with this Section 12.18, in
which case this Section 12.18 shall apply to City in the same manner to which it applies to
Company.
12.19 Compliance with Immigration Laws
Company agrees that,in the performance of this Agreement,it will comply with all immigration
laws.
12.20 Proprietary Information,Public Records
The City acknowledges that a number of the records and reports of Company are proprietary
and confidential. Regular monthly, quarterly, and annual reports described in Sections 8.3.2,
8.3.3, and 8.3.4 are not proprietary. Company is obligated to permit the City inspection of its
records on demand and to provide copies to the City where requested. The City will endeavor
to maintain the confidentiality of all proprietary information provided by Company.
Notwithstanding the foregoing, and notwithstanding Section 12.18 (as it applies to City), any
documents provided by Company to the City that are public records may be disclosed pursuant
to a proper public records request.
July 1,2020 92 City of Cathedral City
12.21 Guarantee of Company's Performance
Pursuant to a guarantee in substantially the form attached as Exhibit 2, Burrtec Waste Group,
Inc., a California corporation, has agreed to guarantee the performance of this Agreement by
Burrtec Waste and Recycling Services,LLC. The Guarantee is being provided concurrently with
Company's execution of this Agreement.
12.22 Attorney's Fees
In any action or proceeding to enforce or interpret any of the terms or conditions of this
Agreement the prevailing party shall be entitled to an award to attorney's fees in the amount
reasonably incurred in the prosecution or defense of such action. The term "prevailing party"
shall mean the party entitled to recover costs of suit, upon the conclusion of the matter, in
accordance with the laws of the State of California.
ARTICLE 13
MISCELLANEOUS AGREEMENTS
13.1 Entire Agreement
This Agreement, including the Exhibits, represents the full and entire Agreement between the
Parties with respect to the matters covered herein and supersedes and replaces all prior
agreements, understandings, commitments, communications and representations made
between the Parties,whether written or oral,with respect to the subject matter hereof,including
specifically any prior agreements regarding the "8.50 Fund" or the "POD System". No verbal
agreement or conversation with any officer,agent,or employee of the City,either before,during,
or after the execution of this Agreement, shall affect or modify any of the terms or obligations
herein contained nor shall such verbal agreement or conversation entitle Company to any
additional payment whatsoever under the terms of this Agreement.
13.2 Section Headings
The article headings and section headings in this Agreement are for convenience of reference
only and are not intended to be used in the construction of this Agreement nor to alter or affect
any of its provisions.
July 1,2020 93 City of Cathedral City
13.3 References to Laws and Other Agreements
All references in this Agreement to laws shall be understood to include such laws as they may
be subsequently amended or recodified, unless otherwise specifically provided. This
Agreement supersedes any and all agreements heretofore entered into by the Parties.
13.4 Interpretation
This Agreement, including the exhibits attached hereto, shall be interpreted and construed
reasonably and neither for nor against either party,regardless of the degree to which either party
participated in its drafting.
13.5 Agreement
This Agreement may not be modified or amended in any respect except by a writing signed by
the Parties.
13.6 Severability
If any non-material provision of this Agreement is for any reason deemed to be invalid and
unenforceable, the invalidity or unenforceability of such provision shall not affect any of the
remaining provisions of this Agreement which shall be enforced as if such invalid or
unenforceable provision had not been contained herein.
13.7 Exhibits
Each of the Exhibits identified in this Agreement is attached hereto and incorporated herein and
made a part hereof by this reference.
13.8 Non-Waiver Provision
Failure of either party to exercise any of the remedies set forth herein within the time periods
provided for shall not constitute a waiver of any rights of that party with regard to that failure
to perform or subsequent failures to perform whether determined to be a breach, excused
performance or unexcused defaults by the other party.
July 1.2020 94 City of Cathedral City
IN WITNESS WHEREOF, the City and Company have executed this Agreement as of the day
and year first above written.
CITY OF CATHEDRAL CITY
ATTES ( . I' / I . A 1 _ ►•' . _
CITY C K ,CI ( OF CATHEDRAL CITY
APPROVED AS TO FORM:
CITY ATTORNEY
:RRT /
E 4/ D RECYCLING SERVICES, LLC
Name: Cole Burr
Title: President
July 1, 2020 95 City of Cathedral City
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EXHIBIT 2
CORPORATE GUARANTY
Guaranty
THIS GUARANTY (the"Guaranty)is given as of the day of ,2020.
THIS GUARANTY is made with reference to the following facts and circumstances:
A. Burrtec Waste and Recycling, LLC, hereinafter ("Owner") is a corporation organized
under the laws of the State of California, and is an Affiliate of Burrtec Waste Group,Inc.
("Guarantor").
B. Owner and the City of Cathedral City ("the City") have negotiated a Franchise
Agreement Between City of Cathedral City and Burrtec Waste and Recycling Services,
LLC for Integrated Solid Waste Management Services as of ,(hereinafter
"Agreement"). A copy of this Agreement is attached hereto.
C. It is a requirement of the Agreement, and a condition to the City entering into the
Agreement,that Guarantor guaranty Owner's performance of the Agreement.
D. Guarantor is providing this Guaranty to induce the City to enter into the Agreement
NOW,THEREFORE,in consideration of the foregoing,Guarantor agrees as follows:
1. Guaranty of the Agreement. Guarantor hereby irrevocably and unconditionally
guarantees to the City the complete and timely performance,satisfaction and observation
by Owner of each and every term and condition of the Agreement which Owner is
required to perform,satisfy or observe. In the event that Owner fails to perform,satisfy
or observe any of the terms and conditions of the Agreement, Guarantor will promptly
and fully perform,satisfy or observe them in the place of the Owner or cause them to be
performed, satisfied or observed. Guarantor hereby guarantees payment to the City of
any damages,costs or expenses which might become recoverable by the City from Owner
due to its breach of the Agreement.
2. Guarantor's Obligations Are Absolute. The obligations of the Guarantor hereunder are
direct, immediate, absolute, continuing, unconditional and unlimited, and with respect
to any payment obligation of Owner under the Agreement, shall constitute a guarantee
of payment and not of collection,and are not conditional upon the genuineness,validity,
regularity or enforceability of the Agreement In any action brought against the
July 1, 2020 3-1 City of Cathedral City
Guarantor to enforce, or for damages for breach of, its obligations hereunder, the
Guarantor shall be entitled to all defenses, if any, that would be available to the Owner
in an action to enforce,or for damages for breach of,the Agreement(other than discharge
of,or stay of proceedings to enforce,obligations under the Agreement under bankruptcy
law).
3. Waivers. Except as provided herein the Guarantor shall have no right to terminate this
Guaranty or to be released,relieved,exonerated or discharged from its obligations under
it for any reason whatsoever, including, without limitation: (1) the insolvency,
bankruptcy, reorganization or cessation of existence of the Owner; (2) the actual or
purported rejection by a trustee in bankruptcy of the Agreement,or any limitation on any
claim in bankruptcy resulting from the actual or purported termination of the Agreement;
(3) any waiver with respect to any of the obligations of the Agreement guaranteed
hereunder or the impairment or suspension of any of the City's rights or remedies against
the Owner;or(4)any merger or consolidation of the Owner with any other corporation,
or any sale, lease or transfer of any or all the assets of the Owner. Without limiting the
generality of the foregoing, Guarantor hereby waives the rights and benefits under
California Civil Code Section 2819.
The Guarantor hereby waives any and all benefits and defenses under California Civil
Code Section 2846, 2849, and 2850, including without limitation, the right to require the
City to (a) proceed against Owner, (b) proceed against or exhaust any security or
collateral the City may hold now or hereafter hold, or (c) pursue any other right or
remedy for Guarantor's benefit,and agrees that the City may proceed against Guarantor
for the obligations guaranteed herein without taking any action against Owner or any
other guarantor or pledgor and without proceeding against or exhausting any security or
collateral the City may hold now or hereafter hold. City may unqualifiedly exercise in its
sole discretion any or all rights and remedies available to it against Owner or any other
guarantor or pledgor without impairing the City's rights and remedies in enforcing this
Guaranty.
The Guarantor hereby waives and agrees to waive at any future time at the request of the
City to the extent now or then permitted by applicable law, any and all rights which the
Guarantor may have or which at any time hereafter may be conferred upon it,by statute,
regulation or otherwise,to avoid any of its obligations under,or to terminate,cancel,quit
or surrender this Guaranty. Without limiting the generality of the foregoing,it is agreed
that the occurrence of any one or more of the following shall not affect the liability of the
Guarantor hereunder: (a)at any time or from time to time,without notice to Guarantor,
performance or compliance herewith is waived;(b)any other provision of the Agreement
respecting Owner's indemnification obligations or any security therefor is released or
July 1, 2020 3-2 City of Cathedral City
exchanged in whole or in part or otherwise dealt with; or (c) any Assignment of the
Agreement is effected which does not require the City's approval.
Guarantor hereby expressly waives diligence, presentment, demand for payment or
performance,protest and all notices whatsoever,including,but not limited to,notices of
non-payment or non-performance, notices of protest, notices of any breach or default,
and notices of acceptance of this Guaranty. If all or any portion of the obligations
guaranteed hereunder are paid or performed, Guarantor's obligations hereunder shall
continue and remain in full force and effect in the event that all or any part of such
payment or performance is avoided or recovered directly or indirectly from the City as a
preference, fraudulent transfer or otherwise,irrespective of (a) any notice of revocation
given by Guarantor or Owner prior to such avoidance or recovery, and (b) payment in
full of any obligations then outstanding.
4. Term. This Guaranty is not limited to any period of time,but shall continue in full force
and effect until all of the terms and conditions of the Agreement have been fully
performed or otherwise discharged and Guarantor shall remain fully responsible under
this Guaranty without regard to the acceptance by the City of any performance bond or
other collateral to assure the performance of Owner's obligations under the Agreement.
Guarantor shall not be released of its obligations hereunder so long as there is any claim
by the City against Owner arising out of the Agreement based on Owner's failure to
perform which has not been settled or discharged.
5. No Waivers. No delay on the part of the City in exercising any rights under this Guaranty
or failure to exercise such rights shall operate as a waiver of such rights. No notice to or
demand on Guarantor shall be a waiver of any obligation of Guarantor or right of the
City to take other or further action without notice or demand. No modification or waiver
of any of the provisions of this Guaranty shall be effective unless it is in writing and
signed by the City and by Guarantor, nor shall any waiver be effective except in the
specific instance or matter for which it is given.
6. Attorney's Fees. In addition to the amounts guaranteed under this Guaranty,Guarantor
agrees in the event of Guaranty's breach of its obligations including to pay reasonable
attorney's fees and all other reasonable costs and expenses incurred by the City in
enforcing this Guaranty, or in any action or proceeding arising out of or relating to this
Guaranty, including any action instituted to determine the respective rights and
obligations of the Parties hereunder.
7. Governing Law: Turisdiction. This Guaranty is and shall be deemed to be a contract
entered into in and pursuant to the laws of the State of California and shall be governed
and construed in accordance with the laws of California without regard to its conflicts of
July 1, 2020 3-3 City of Cathedral City
laws rules for all purposes including,but not limited to,matters of construction,validity
and performance. Guarantor agrees that any action brought by the City to enforce this
Guaranty may be brought in any court of the State of California and Guarantor consents
to personal jurisdiction over it by such courts. Guarantor appoints the following person
as its agent for service of process in California:
Cole Burr
Burrtec Waste & Recycling Services, LLC
9890 Cherry Ave.
Fontana, CA 92335
With a copy by certified mail to:
8. Severability. If any portion of this Guaranty is held to be invalid or unenforceable,such
invalidity will have no effect upon the remaining portions of this Guaranty,which shall
be severable and continue in full force and effect.
9. Binding On Successors. This Guaranty shall inure to the benefit of the City and its
successors and shall be binding upon Guarantor and its successors, including
transferee(s) of substantially all of its assets and its shareholder(s) in the event of its
dissolution or insolvency.
10. Authority. Guarantor represents and warrants that it has the corporate power and
authority to give this Guaranty, that its execution of this Guaranty has been authorized
by all necessary action under its Article of Incorporation and By-Laws, and that the
person signing this Guaranty on its behalf has the authority to do so.
11. Notices. Notice shall be given in writing, deposited in the U.S. mail, registered or
certified,first dass postage prepaid,addressed as follows:
To the City: City Manager
City of Cathedral City
68700 Avenida Lalo Guerrero
Cathedral City,CA 99234
with a copy to the City Attorney at the same address.
July 1, 2020 3-4 City of Cathedral City
To the Guarantor: Cole Burr
Burrtec Waste & Recycling Services, LLC
9890 Cherry Ave.
Fontana, CA 92335
By: 1,//
(title) Presi.ent
By:
(title)
July 1, 2020 3-5 City of Cathedral City
Executed in Duplicate
HARCO NATIONAL INSURANCE COMPANY
BOND NO. 769182
PREMIUM:$9,000.00
KNOW ALL MEN BY THESE PRESENTS THAT WE,
Burrtec Waste and Recycling Services, LLC
as Principal, and HARCO NATIONAL INSURANCE COMPANY, a corporation duly organized and doing business
under and by the virtue of the laws of the State of Illinois, and duly licensed for the purpose of making, guaranteeing
or becoming sole surety upon bonds or undertakings required or authorized by the laws of the said State, as Surety, are
held and firmly bound unto
City of Cathedral City (Hereinafter called the Obligee)
in the sum of
One Million&00/100 Dollars($ 1,000,000.00 )
for the payment whereof well and truly to be made we and each of us bind ourselves, our heirs, executors, administrators,
successors and assigns,jointly and severally,firmly by these presents.
THE CONDITION OF THE ABOVE OBLIGATION IS SUCH THAT, WHEREAS, the above bounden PRINCIPAL
entered into a Franchise Agreement dated July 1 20 20 , (a copy of which Agreement is or may be
attached hereto, and is hereby referred to and made a part hereof), with the said Obligee to do and perform the following,
to wit:
Integrated Solid Waste Management Services
1.This bond shall have the term beginning July 1, 2020 and ending June 30, 2021 ,but
may be continued by certificate at the option of the Surety. Provided,however,that this bond may be cancelled by the
Surety by giving at least sixty(60)days advance written notice to the Principal and Obligee. Neither cancellation or
non-renewal by the Surety,nor failure,nor inability of the Principal to file a replacement bond shall constitute a loss to
the Obligee recoverable under this bond.
2. In the event of default by the Principal in the performance of the Agreement during the term of this bond, the
Surety shall be liable only for damages incurred by Obligee up to termination date of this bond.
3. No claim shall be had or maintained against the Surety on this instrument unless such be brought or instituted and
process served upon the Surety prior to expiration date of the bond;no suit shall be maintained against the Surety unless it
be brought within one year from the termination or expiration date of the bond.
4. If any conflict or inconsistency exists between the Surety's obligations or undertakings as described in this bond and as
described in the underlying document,then the terms of this bond shall prevail.
5. The aggregate liability of the surety is limited to the penal sum stated herein regardless of the number or amount of
claims brought against this bond and regardless of the number of years this bond remains in force.
6. This bond shall not bind the surety unless the bond is accepted by the Obligee. If the Obligee objects to any language
contained herein, within 30 days of the date this bond is signed and sealed by the Surety, Obligee shall return this bond,
certified mail or express courier,to the Surety at its address at:
Harco National Insurance Insurance Company
do IFIC
2999 Oak Rd., Suite 820
Walnut Creek, CA 94597
Failure to return the bond as described above shall constitute Obligee's acceptance of the terms and conditions,herein.
NOW, THEREFORE, if the above bounden Principal shall well and truly perform the work contracted to be performed
under said Agreement,then this obligation to be null and void, otherwise to remain in full force and effect. No
right of action shall accrue under this bond to or for the use of any person other than the sa.• Obligee.
SIGNED AND SEALED THIS 16th day of July if/4
Burrtec Recycling Services,LLC
i
i/V
By
Harco National Insurance Company
•o+ -..... ,• By J
I
`opooR;; per
SEAL '' .14 ce F. McMahon Attorney-in-Fact
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT Civil Code § 1189
A notary public or other officer completing this certificate verifies only the identity of the individual who signed
the document,to which this certificate is attached, and not the truthfulness, accuracy or validity of that document.
STATE OF CALIFORNIA
County of San Diego
9
On JUL 1 6 2020 before me, Janice R. Martin , Notary Public,
Date Insert Name of Notary exactly as it appears on the official seal
personally appeared Lawrence F. McMahon
Name(s)of Signer(s)
who proved to me on the basis of satisfactory evidence to
be the person* whose name(//j is/t/f# subscribed to the
within instrument and acknowledged to me that he/ftlifjtly
executed the same in his/WM/Alf authorized capacity(ilah,
.w� and that by his/f f // fi signature(M on the instrument the
"` ''� JAN?CE R. MARTIN K person(/$/j, or the entity upon behalf of which the person(�#,Ij
< ' COMM. #2158852 0 acted, executed the instrument.
U NOTARY PUBLIC-CALIFORNIA N
Cnnp' SAN DIEGO COUNTY 0
�
MCommission
I certify under PENALTY OF PERJURY under the laws of
y
JULY 29,2020 the State of California that the foregoing paragraph is true
and correct.
Witness m hand and official seal.
Signature
Place Notary Seal Above '—Sign • e of Notary Public Janice R. Martin
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of the form to another document.
Description of Attached Document
Title or Type of Document:
Document Date: Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name: Signer's Name:
❑ Individual ❑ Individual
❑ Corporate Officer Title(s): ❑ Corporate Officer Title(s):
❑ Partner ❑Limited ❑General ❑ Partner ❑Limited❑ General
IY! Attorney in Fact RIGHT THUMBPRINT ❑ Attorney in Fact RIGHT THUMBPRINT
❑ Trustee OF SIGNER ❑ Trustee OF SIGNER
❑ Guardian or Conservator Top of thumb here ❑ Guardian or Conservator Top of thumb here
❑ Other: ❑ Other:
Signer is Representing: Signer is Representing:
Surety Company
IFIL
RCO
--. Surety NATIONAL INSURANCE COMPANY
A'0 embi•r of
IA7 Insurance(Pout)
ALLEGHENY CASUALTY COMPANY
Addendum: Usage of a-Seal and e-Signature for IFIC Surety Bond Forms
To ensure uninterrupted business continuity during the extent of the Covid-19 pandemic,
Harco National Insurance Company, International Fidelity Insurance Company and Allegheny
Casualty Company (herein the "Company") has authorized our network of surety partners, as
granted under the attached Power of Attorney, stipulated within the terms of a signed Agency
Agreement and duly appointed by the Company under a Department of Insurance appointment
(where required) within all 50 U.S. States, territories and possessions to affix an electonic e-seal
to all bond documents as if it were a raised corporate seal. This addendum also extends to the
use of an e-signature by our appointed surety partners authorized under the Company Power of
Attorney during the extent of the Covid-19 pandemic.
This authority is effective on this day, the 29th of June, 2020 and shall remain in place until
December 31, 2020 or until a National declaration is announced that the Covid — 19 pandemic
restrictions have ceased.
Harco National Insurance Company, International Fidelity Insurance Company and Allegheny
Casualty Company.
`,oNsuq y
i� SEAL "': -er0 4,, (<7p.suAti.
13,s
Z
o: _ SEAL Ta 1936
by .'<<Nosy. aa a1.
fitik it. * •
,.,....`' kVJERS
Authorized by: Kenneth Chapman
Executive Vice President, Surety
POWER OF ATTORNEY Bond# (ti918z
HARCO NATIONAL INSURANCE COMPANY
INTERNATIONAL FIDELITY INSURANCE COMPANY
Member companies of IAT Insurance Group, Headquartered: 702 Oberlin Road, Raleigh, North Carolina 27605
KNOW ALL MEN BY THESE PRESENTS:That HARCO NATIONAL INSURANCE COMPANY,a corporation organized and existing under the laws of
the State of Illinois,and INTERNATIONAL FIDELITY INSURANCE COMPANY,a corporation organized and existing under the laws of the State of New
Jersey,and having their principal offices located respectively in the cities of Rolling Meadows, Illinois and Newark, New Jersey,do hereby constitute and
appoint
SARAH MYERS, JAMES D. CASTLE, LAWRENCE F. MCMAHON, JANICE MARTIN
San Diego, CA
their true and lawful attorney(s)-in-fact to execute, seal and deliver for and on its behalf as surety, any and all bonds and undertakings, contracts of
indemnity and other writings obligatory in the nature thereof,which are or may be allowed, required or permitted by law,statute,rule, regulation,contract
or otherwise, and the execution of such instrument(s) in pursuance of these presents, shall be as binding upon the said HARCO NATIONAL
INSURANCE COMPANY and INTERNATIONAL FIDELITY INSURANCE COMPANY,as fully and amply,to all intents and purposes,as if the same had
been duly executed and acknowledged by their regularly elected officers at their principal offices.
This Power of Attorney is executed,and may be revoked,pursuant to and by authority of the By-Laws of HARCO NATIONAL INSURANCE COMPANY
and INTERNATIONAL FIDELITY INSURANCE COMPANY and is granted under and by authority of the following resolution adopted by the Board of
Directors of INTERNATIONAL FIDELITY INSURANCE COMPANY at a meeting duly held on the 13th day of December,2018 and by the Board of
Directors of HARCO NATIONAL INSURANCE COMPANY at a meeting held on the 13th day of December,2018.
"RESOLVED, that (1) the Chief Executive Officer, President, Executive Vice President, Senior Vice President, Vice President, or Secretary of the
Corporation shall have the power to appoint,and to revoke the appointments of,Attorneys-in-Fact or agents with power and authority as defined or limited
in their respective powers of attorney, and to execute on behalf of the Corporation and affix the Corporation's seal thereto, bonds, undertakings,
recognizances, contracts of indemnity and other written obligations in the nature thereof or related thereto; and(2)any such Officers of the Corporation
may appoint and revoke the appointments of joint-control custodians, agents for acceptance of process, and Attorneys-in-fact with authority to execute
waivers and consents on behalf of the Corporation;and(3)the signature of any such Officer of the Corporation and the Corporation's seal may be affixed
by facsimile to any power of attorney or certification given for the execution of any bond,undertaking,recognizance,contract of indemnity or other written
obligation in the nature thereof or related thereto, such signature and seals when so used whether heretofore or hereafter, being hereby adopted by the
Corporation as the original signature of such officer and the original seal of the Corporation, to be valid and binding upon the Corporation with the same
force and effect as though manually affixed."
IN WITNESS WHEREOF,HARCO NATIONAL INSURANCE COMPANY and INTERNATIONAL
FIDELITY INSURANCE COMPANY have each executed and attested these presents
on this 31st day of December,2019
E pTo
`��OI4:%) STATE OF NEW JERSEY STATE OF ILLINOIS ',Oa`o voa4 �
pP R4r !� County of Essex County of Cook *-
c*:
:n
�' SEAL m •Z: SEAL
19114 ist:
1904�a on :`fib`•�.040`'•:da
9.5��a Kenneth Chapman '•, ti t * ;
Executive Vice President,Harco National Insurance Company
and International Fidelity Insurance Company
On this 31st day of December,2019 ,before me came the individual who executed the preceding instrument,to me personally known,and,
being by me duly sworn,said he is the therein described and authorized officer of HARCO NATIONAL INSURANCE COMPANY and
INTERNATIONAL FIDELITY INSURANCE COMPANY;that the seals affixed to said instrument are the Corporate Seals of said Companies;that the
said Corporate Seals and his signature were duly affixed by order of the Boards of Directors of said Companies.
...... "''., IN TESTIMONY WHEREOF,I have hereunto set my hand affixed my Official Seal,at the City of Newark,
A.;'��C� ........ ' New Jersey the day and year first above written.
0,.).0T14,9).. :, �<
diflAtGAZ .
uEP`'�•�` Shirelle A.Outley a Notary Public of New Jersey
'"i i i"`. My Commission Expires April 04,2023
CERTIFICATION
I,the undersigned officer of HARCO NATIONAL INSURANCE COMPANY and INTERNATIONAL FIDELITY INSURANCE COMPANY do hereby certify
that I have compared the foregoing copy of the Power of Attorney and affidavit,and the copy of the Sections of the By-Laws of said Companies as set
forth in said Power of Attorney,with the originals on file in the home office of said companies,and that the same are correct transcripts thereof,and of the
whole of the said originals,and that the said Power of Attorney has not been revoked and is now in full force and effect.
IN TESTIMONY WHEREOF,I have hereunto set my hand on this day, 7/16/2020
A00392 Alliant Insurance Services,In
a _-
Irene Martins,Assistant Secretary