2017/11/14 City Council Resolution 2017-128RESOLUTION NO. 2017-128
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK
APPROVING AGREEMENTS FOR NON-EXCLUSIVE TEMPORARY CONSTRUCTION
AND DEMOLITION DEBRIS BOX COLLECTION SERVICE WITH INDUSTRIAL
CARTING, PACIFIC SANITATION AND RECOLOGY SONOMA MARIN
WHEREAS, Rohnert Park Municipal Code section 8.12.200 requires that waste collection
services be provided by contract;
WHEREAS, the existing non-exclusive franchise agreements for temporary debris box
services with Industrial Carting and Rohnert Park Disposal, Inc. expire on December 31, 2017;
WHEREAS, on September 15, 2017, the City issued its Request for Proposal for Non -
Exclusive Temporary Construction and Demolition Debris Collection Service;
WHEREAS, proposals were timely received for non-exclusive temporary construction and
demolition debris box collection service from Industrial Waste & Debris Box Rentals, Inc., doing
business as Industrial Carting ("Industrial Carting"), M&M Services, Inc., doing business as Pacific
Sanitation ("Pacific Sanitation"), and Recology Sonoma Marin;
WHEREAS, all applications passed the initial screening test for responsiveness and have
satisfied appropriate City requirements
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Rohnert
Park that it hereby accepts and approves the proposals submitted by Industrial Carting, Pacific
Sanitation, and Recology Sonoma Marin, and approves the award of a non-exclusive franchise to
hldustrial Carting, Pacific Sanitation, and Recology Sonoma Marin for temporary construction and
demolition debris collection service.
NOW, THEREFORE, BE IT FURTHER RESOLVED that the City Council approves
the Non -Exclusive Temporary Construction and Demolition Debris Collection Service Agreement,
incorporated by reference, subject to minor revisions by the City Attorney or City Manager.
NOW, THEREFORE, BE IT FURTHER RESOLVED that the City Manager is hereby
authorized to execute and deliver on behalf of the City of Rohnert Park, agreements with Industrial
Carting, Pacific Sanitation, and Recology Sonoma Marin, in substantially similar form as approved
by the City Council, and take other actions as may be necessary and appropriate to effectuate the
award of the non-exclusive franchise.
2017-128
DULY AND REGULARLY ADOPTED by the City Council of the City of Rohnert Park
this 14"' day of November, 2017.
ATTEST:
1. L
0�lnne M. Buergler, City C014
CITY OF ROHNERT PARK
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Jake )Macknzie, May
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2017-128
ABSTAIN: ( CD )
CITY OF ROHNERT PARK November 14, 2017
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Non-Exclusive Temporary Construction and 1
Demolition Debris Collection Service Agreement 2
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Executed Between the 4
City of Rohnert Park 5
And 6
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TABLE OF CONTENTS 37
Non-Exclusive Temporary Construction and Demolition Debris 38
Collection Service Agreement 39
ARTICLE 1. DEFINITIONS ........................................................................................ 6 40
ARTICLE 2. TERM OF AGREEMENT ...................................................................... 10 41
ARTICLE 3. SERVICES PROVIDED BY THE FRANCHISEE .................................. 10 42
ARTICLE 4. RATES, BILLING AND PAYMENTS ..................................................... 15 43
ARTICLE 5. MINIMUM DIVERSION REQUIREMENTS ........................................... 16 44
ARTICLE 6. COLLECTION EQUIPMENT ................................................................ 17 45
ARTICLE 7. FRANCHISEE’S OFFICE ..................................................................... 19 46
ARTICLE 8. RECORD KEEPING & REPORTING REQUIREMENTS ..................... 19 47
ARTICLE 9. NONDISCRIMINATION ........................................................................ 21 48
ARTICLE 10. SERVICE INQUIRIES AND COMPLAINTS ........................................ 21 49
ARTICLE 11. QUALITY OF PERFORMANCE ......................................................... 21 50
ARTICLE 12. AGREEMENT COMPLIANCE ............................................................ 25 51
ARTICLE 13. PERFORMANCE BOND .................................................................... 25 52
ARTICLE 14. INSURANCE ...................................................................................... 26 53
ARTICLE 15. INDEMNIFICATION ............................................................................ 28 54
ARTICLE 16. DEFAULT ........................................................................................... 30 55
ARTICLE 17. MODIFICATIONS TO THE AGREEMENT .......................................... 32 56
ARTICLE 18. LEGAL REPRESENTATION ............................................................... 3 3 57
ARTICLE 19. FINANCIAL INTEREST ...................................................................... 33 58
ARTICLE 20. FRANCHISEE’S PERSONNEL .......................................................... 33 59
ARTICLE 21. INDEPENDENT FRANCHISEE .......................................................... 34 60
ARTICLE 22. LAWS TO GOVERN ........................................................................... 34 61
ARTICLE 23. CONSENT TO JURISDICTION .......................................................... 34 62
ARTICLE 24. ASSIGNMENT .................................................................................... 34 63
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ARTICLE 25. COMPLIANCE WITH LAWS .............................................................. 35 66
ARTICLE 26. PERMITS AND LICENSES ................................................................ 36 67
ARTICLE 27. OWNERSHIP OF WRITTEN MATERIALS ......................................... 36 68
ARTICLE 28. WAIVER ............................................................................................. 36 69
ARTICLE 29. PROHIBITION AGAINST GIFTS ........................................................ 37 70
ARTICLE 30. POINT OF CONTACT ........................................................................ 37 71
ARTICLE 31. CONFLICT OF INTEREST ................................................................. 37 72
ARTICLE 32. NOTICES ........................................................................................... 37 73
ARTICLE 33. FRANCHISEE’S RECORDS .............................................................. 38 74
ARTICLE 34. ENTIRE AGREEMENT ....................................................................... 38 75
ARTICLE 35. SEVERABILITY .................................................................................. 39 76
ARTICLE 36. RIGHT TO REQUIRE PERFORMANCE ............................................ 39 77
ARTICLE 37. ALL PRIOR AGREEMENTS SUPERSEDED ..................................... 39 78
ARTICLE 38. HEADINGS ........................................................................................ 39 79
ARTICLE 39. REPRESENTATIONS AND WARRANTIES OF FRANCHISEE .......... 39 80
ARTICLE 40. EFFECTIVE DATE ............................................................................. 41 81
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CITY OF ROHNERT PARK 83
This “AGREEMENT” is made and entered into this ___ day of _______, 2017 (“Effective Date”), 84
by and between the City of Rohnert Park, a California municipal corporation, (hereinafter referred 85
to as "CITY") and ____________, a California [corporation], (hereinafter referred to as 86
"FRANCHISEE”). 87
RECITALS 88
WHEREAS, the Legislature of the State of California, by enactment of the California Integrated 89
Waste Management Act of 1989 (“Act”) and subsequent additions and amendments (codified at 90
California Public Resources Code Section 40000 et seq.), has declared that it is in the public 91
interest to authorize and require local agencies to make adequate provisions for Solid Waste 92
Collection within their jurisdiction; and, 93
WHEREAS, the State of California (the “State”) has found and declared that the amount of Solid 94
Waste generated in California, coupled with diminishing landfill space and potential adverse 95
environmental impacts from landfilling and the need to conserve natural resources, have created 96
an urgent need for State and local agencies to enact and implement an aggressive integrated 97
waste management program. The State has, through enactment of the Act, directed the 98
responsible State agency, and all local agencies, to promote disposal site Diversion and to 99
maximize the use of feasible Solid Waste reduction, re-use, recycling, and Composting options in 100
order to reduce the amount of Solid Waste that must be disposed of in disposal sites; and, 101
WHEREAS, the CITY Council of the CITY (the “City Council”) has determined through a 102
competitive procurement process for Non-Exclusive Temporary Construction and Demolition 103
Debris Collection Service that FRANCHISEE, by demonstrated experience, reputation and 104
capacity, is qualified to provide for the Non-Exclusive Temporary Construction and Demolition 105
Debris Collection Service within the corporate limits of the CITY, the transportation of such 106
material to appropriate places for processing, recycling, Composting and/or disposal; and the 107
processing of materials; and City Council desires that FRANCHISEE be engaged to perform such 108
services on the basis set forth in this AGREEMENT; and 109
WHEREAS, the FRANCHISEE, through its proposal to the CITY, has proposed and represented 110
that it has the ability and capacity to provide for the Non-Exclusive Temporary Construction and 111
Demolition Debris Collection Service within the corporate limits of the CITY; the transportation of 112
such material to appropriate places for processing, recycling, Composting and/or disposal; and 113
the processing of materials; and 114
WHEREAS, this AGREEMENT has been developed by and is satisfactory to the CITY and the 115
FRANCHISEE. 116
NOW, THEREFORE, in consideration of the mutual covenants, conditions, and consideration 117
contained herein, the CITY and FRANCHISEE hereby agree as hereinafter set forth: 118
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ARTICLE 1. Definitions 120
For the purpose of this Collection Service Agreement, hereinafter referred to as "AGREEMENT,” 121
the definitions contained in this Article shall apply unless otherwise specifically stated. If a word 122
or phrase is not defined in this Article, the definition of such word or phrase as contained the City 123
Municipal Code shall control. When not inconsistent with the context, words used in the present 124
tense include the future, words in tfhe plural include the singular, and words in the singular include 125
the plural. Use of the masculine gender shall include the feminine gender. 126
1.01 AB 939. The California Integrated Waste Management Act (California Public 127
Resources Code Sections 40000 et al.) redefined solid waste management in an effort to reduce 128
the volume and toxicity of solid waste that is landfilled and incinerated by requiring local 129
governments to prepare and implement plans to improve the management of waste resources. 130
1.02 AGREEMENT. This written document and all amendments thereto, between the 131
CITY and the FRANCHISEE, governing the provision of Non-Exclusive Temporary Construction 132
and Demolition Debris Collection Service as provided herein. 133
1.03 Agreement Year. Each twelve (12) month period from January 1st to December 134
31st, beginning January 1, 2018. 135
1.04 Applicable Law. For purposes of this AGREEMENT, Applicable Laws includes 136
without limitation, AB 341, AB 939, AB 1594, AB 1826, SB 1016 and all amendments and related 137
subsequent legislation. 138
1.05 Bin. A metal container, with a capacity of one (1) to eight (8) cubic yards of 139
Construction and Demolition Debris, designed or intended to be mechanically dumped into a 140
loader packer type truck that is approved for such purpose by the CITY. 141
1.06 Biohazardous or Biomedical Waste. Any waste which may cause disease or 142
reasonably be suspected of harboring pathogenic organisms; including waste resulting from the 143
operation of medical clinics, hospitals, and other facilities processing wastes which may consist 144
of, but not limited to, human and animal parts, contaminated bandages, pathological specimens, 145
hypodermic needles, sharps, contaminated clothing and surgical gloves. 146
1.07 CalRecycle. California’s Department of Resources Recycling and Recovery 147
(CalRecycle) administers and provides oversight for all of California’s state-managed waste 148
handling and recycling programs. 149
1.08 Change in Law. Any change in (or any new) laws, ordinances, rules, regulations, 150
orders, judgments, decrees, interpretations, decisions or permit requirements, of or by any 151
federal, state or local governmental entity (collectively “Applicable Laws”), applicable on or after 152
the Effective Date. 153
1.09 CITY. The City of Rohnert Park, California. 154
1.10 City Representative. That person, or their designee, designated by the CITY to 155
administer and monitor the provisions of this AGREEMENT. 156
1.11 Collection Service. See Non-Exclusive Temporary Construction and Demolition 157
Debris Collection Service. 158
1.12 Commercial Service Unit. Any combination of retail, professional, wholesale 159
and industrial facilities, place of business and other commercial enterprises in the Service Area 160
utilizing a common cart or Bin for the accumulation and set-out of Solid Waste. 161
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1.13 Composting. The controlled biological decomposition of Organic Waste into a 162
specific mixture of decayed organic matter meeting the definition of “compost” in Public 163
Resources Code Section 40116. 164
1.14 Construction and Demolition Debris. Commonly used or discarded materials 165
removed from construction, remodeling, repair, demolition, or renovation operations on any 166
pavement, house, commercial building, or other structure, or from landscaping. Such materials 167
include, but are not limited to, dirt, sand, rock, gravel, bricks, plaster, gypsum wallboard, 168
aluminum, glass, asphalt material, plastic pipe, roofing material, carpeting, concrete, wood, 169
masonry, rocks, trees, remnants of new materials, including paper, plastic, carpet scraps, wood 170
scraps, scrap metal, building materials, packaging and rubble resulting from Construction, 171
remodeling, renovation, repair and demolition operations on pavements, houses, commercial 172
buildings and other structures. With the exception of soil, dirt, concrete, and asphalt, Construction 173
and Demolition Debris does not include Garbage and Exempt Waste. 174
1.15 Container. A Bin or Roll-off Container provided by FRANCHISEE to Service 175
Recipients for the collection of Construction and Demolition Debris. 176
1.16 County. Sonoma County, California 177
1.17 Disposal Facility. The Sonoma County Landfill/Transfer System owned by 178
Sonoma County for the disposal of Garbage, Processing Residue, and other materials as 179
appropriate. 180
1.18 Diversion. Activities that reduce or eliminate the amount of solid waste, garbage, 181
green waste, and construction and demolition debris that is disposed of in a solid waste or other 182
permitted landfill. 183
1.19 Dwelling Unit. Any individual living unit in a single-family dwelling (SFD) or multi-184
family dwelling (MFD) structure or building intended for, or capable of being utilized for, residential 185
living other than a hotel or motel. 186
1.20 Effective Date. The date this AGREEMENT is executed. 187
1.21 Exempt Waste. Biohazardous or Biomedical Waste, Hazardous Waste, Sludge, 188
automobiles, automobile parts, boats, boat parts, boat trailers, internal combustion engines, lead-189
acid batteries, any matter or materials which are not acceptable for disposal at a Solid Waste 190
landfill as defined in the Act and those wastes under the control of the Nuclear Regulatory 191
Commission. 192
1.22 Food Waste. Food scraps and trimmings and other putrescible waste that result 193
from food production, preparation, cooking, storage, consumption or handling. Food Waste 194
includes but is not limited to: meat, fish and dairy waste, fruit and vegetable waste and grain 195
waste. Food Waste does not include Exempt Waste. 196
1.23 Franchise Fee. The payment made by FRANCHISEE to CITY for the privilege of 197
providing Collection Services. 198
1.24 FRANCHISEE. The other party to this AGREEMENT. 199
1.25 Garbage. All putrescible and non-putrescible solid, semi-solid and associated 200
liquid waste, as defined in California Public Resources Code Section 40191. Garbage does not 201
include those items defined herein as Construction and Demolition Debris, Green Waste or 202
Exempt Waste. 203
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1.26 Gift. That which is defined, and not exempted, in California Government Code 204
Section 82028 and the gift regulations of the Fair Political Practices Commission at 2 C.C. R Sec 205
18940 et seq., as may be amended from time to time. 206
1.27 Green Waste. Any vegetative matter resulting from normal yard and landscaping 207
maintenance that is not more than three (3) feet in its longest dimension or six (6) inches in 208
diameter and fits in the Green Waste Cart utilized by the Service Recipient. Green Waste includes 209
plant debris, such as palm, yucca and cactus, grass clippings, leaves, pruning, weeds, branches, 210
brush, holiday trees, and other forms of vegetative waste and must be generated by and at the 211
Service Unit wherein the Green Waste is collected. Green Waste does not include items herein 212
defined as Garbage or Exempt Waste. 213
1.28 Gross Revenue. All revenue amounts collected by FRANCHISEE for the provision 214
of Collection Services pursuant to this AGREEMENT, calculated in accordance with Generally 215
Accepted Accounting Procedures (GAAP). The Gross Revenue, for purposes of this 216
AGREEMENT, does not include any revenue generated from the sale of Recyclable Material or 217
Organic Waste, or other receipts from state and local government accounts (e.g. grants, cash 218
rewards and rebates) resulting from the performance of this AGREEMENT. 219
1.29 Hazardous Waste. Any material which is defined, regulated or listed as a 220
“hazardous”, “toxic”, a “pollutant”, or words of similar import waste under California or United 221
States law or any regulations promulgated pursuant to such law, as such state or federal law or 222
regulations may be amended from time to time; and “designated waste” as defined in California 223
Water Code Section 13173. 224
1.30 Large Green Waste. Oversized Green Waste such as tree trunks and branches 225
with a diameter of not less than six (6) inches and not more than two (2) feet and a length of not 226
more than five (5) feet in its longest dimension, which are attributed to the normal activities of a 227
SFD, or MFD Service Unit. Large Green Waste must be generated by and at the Service Unit 228
wherein the Large Green Waste is collected. 229
1.31 Master Operating Agreement (“MOA”). The Agreement for Operation of The 230
Central Landfill and County Transfer Stations Between County of Sonoma and Republic Services 231
of Sonoma County, Inc., including Exhibit I thereto, the Agreement for Operations of Sonoma 232
County Transfer Stations and Material Recovery Facility Between The Ratto Group of Companies, 233
Inc. and Republic Services of Sonoma County, Inc. 234
1.32 MFD Service Unit. Any combination of Dwelling Units in the Service Area utilizing 235
a common Bin or cart for the accumulation and set-out of Solid Waste. 236
1.33 Non-Collection Notice. A form developed and used by the FRANCHISEE, as 237
approved by the CITY, to notify Service Recipients of the reason for non-collection of materials 238
set out by the Service Recipient for collection by FRANCHISEE pursuant to this AGREEMENT. 239
1.34 Non-Exclusive Temporary Construction and Demolition Debris Collection Service 240
(Collection Service(s)). Temporary collection and processing of non-putrescible Solid Waste by 241
utilizing a Container for the temporary collection of Construction and Debris Materials by a person 242
or company that holds a valid Non-Exclusive Temporary Construction and Demolition Debris 243
Collection Service Agreement from the CITY and the delivery of that material to permitted and 244
licensed Processing Facility. 245
1.35 Organic Waste. Those materials which are capable of being composted and which 246
would otherwise be process as Recyclable Material or disposed of as Garbage. Organic Waste 247
includes any vegetative matter resulting from normal yard and landscaping maintenance that is 248
CITY OF ROHNERT PARK November 14, 2017
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not more than three (3) feet in its longest dimension or six (6) inches in diameter. Organic Waste 249
includes plant debris, such as palm, yucca and cactus, grass clippings, leaves, pruning, weeds, 250
branches, brush, holiday trees, and other forms of vegetative waste. Organic Waste also includes 251
Food Waste, Stable Matter, and food packaging items such as pizza boxes, paper towels, waxed 252
cardboard and food contaminated paper products. Organic Waste does not include items herein 253
defined as Exempt Waste. 254
1.36 Processing Facility. The licensed and permitted facility designated by the 255
FRANCHISEE and approved by the CITY, for the processing of Construction and Demolition 256
Debris, and other materials as appropriate. 257
1.37 Recyclable Materials. Those materials which are capable of being recycled and 258
which would otherwise be processed as Organic Waste or disposed of as Garbage. Recyclable 259
Materials include newsprint (including inserts); mixed paper (including magazines, catalogs, 260
envelopes, junk mail, corrugated cardboard, brown bags and paper, paperboard, paper egg 261
cartons, office ledger paper, and telephone books); glass containers; aluminum beverage 262
containers; scrap and cast aluminum (not exceeding forty (40) pounds in weight nor two (2) feet 263
in any dimension for any single item); steel including “tin” cans, aerosol cans (empty, non-toxic 264
products) and small scrap (not exceeding forty (40) pounds in weight nor two (2) feet in any 265
dimension for any single item); bimetal containers; plastic bottles (#1-7); aluminum foil and pans; 266
concrete; used motor oil and filters; dry cell household batteries when contained in a sealed 267
heavy-duty plastic bag; and those materials added by the FRANCHISEE from time to time. 268
1.38 Residuals. Those materials that are a result of Recyclable Material or Organic 269
Waste processing, such as from the operations at a Processing Facility, that cannot be diverted 270
from landfill disposal. 271
1.39 Roll-off Container. A metal container with a capacity to hold up to forty (40) cubic 272
yards of Construction and Demolition Debris that is normally loaded onto a motor vehicle and 273
transported to an appropriate facility. 274
1.40 Service Area. That area within the corporate limits of the City of Rohnert Park, 275
California. 276
1.41 Service Recipient. An individual or company receiving Non-Exclusive Temporary 277
Construction and Demolition Debris Collection Service. 278
1.42 Service Recipient Rate. The dollar amount charged by FRANCHISEE to Service 279
Recipients to receive Collection Service. 280
1.43 Service Unit. SFD Service Units, MFD Service Units, and Commercial Service 281
Units. 282
1.44 SFD Service Unit. Any Dwelling Unit in the Service Area utilizing a cart, or any 283
combination of Dwelling Units sharing carts, for the accumulation and set out of Solid Waste. 284
1.45 Sludge. The accumulated solids, residues, and precipitates generated as a result 285
of waste treatment or processing, including wastewater treatment, water supply treatment, or 286
operation of an air pollution control facility, and mixed liquids and solids pumped from septic tanks, 287
grease traps, privies, or similar disposal appurtenances or any other such waste having similar 288
characteristics or effects. 289
1.46 Solid Waste. Garbage, Recyclable Materials and Organic Waste resulting from 290
the normal activities of a Service Unit. Solid Waste must be generated by and at the Service Unit 291
wherein the Solid Waste is collected and does not include items defined herein as Exempt Waste. 292
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1.47 SCWMA. The Sonoma County Waste Management Agency. 293
1.48 Stable Matter. Manure and other waste matter normally accumulated in stables or 294
in livestock or poultry enclosures. 295
1.49 Waste Delivery Agreement (“WDA”). That certain agreement between the CITY 296
and Republic Services of Sonoma County dated October 23, 2014. 297
1.50 Work Day. Any day, Monday through Saturday. 298
ARTICLE 2. Term of AGREEMENT 299
2.01 Term. The term of this AGREEMENT is a seven (7)-year period beginning 300
January 1, 2018 and terminating on December 31, 2024. 301
2.02 Extensions. -The FRANCHISEE or CITY may request one (1) three (3)-year term 302
extension to this original AGREEMENT and, at CITY’s sole option, CITY may grant 303
FRANCHISEE’s request to so extend the term. Under no circumstances shall CITY be obligated 304
to extend the term, and under no circumstances shall CITY be obligated to grant the full three (3) 305
years of extension (i.e., an extension for a shorter time period may instead be granted by the 306
CITY if it chooses). FRANCHISEE or CITY must request the three (3) year extension by July 1, 307
2023. In addition, a term extension shall only be granted in the event that at least two (2) 308
Franchisees are eligible for an extension. However, this requirement will not be the sole 309
determinant of whether or not the CITY grants the extension. 310
2.02.1 Notification of Eligibility. Beginning on or about July 1, 2022, provided 311
the City Manager determines that the FRANCHISEE has met all the requirements of the 312
AGREEMENT, including but not limited to the Diversion Requirements set forth in Article 5, the 313
Record Keeping and Reporting Requirements set forth in Article 8, and the Contract Compliance 314
Review per Article 12, the CITY may offer the FRANCHISEE in writing one (1) or more extensions 315
to the term of this AGREEMENT for an amount of time to be determined by the CITY,but for no 316
more than an additional three (3) years total. FRANCHISEE shall provide written notice to the 317
CITY as to whether FRANCHISEE accepts or rejects the CITY’s offer within twenty (20) Work 318
Days of the date of the offer. If the FRANCHISEE accepts the offer, the FRANCHISEE shall also 319
submit the Extension Administration Fee payment described in Section 2.02.2 below within twenty 320
(20) Work Days of the offer. If FRANCHISEE fails to provide either the written notice or the 321
payment to the CITY within twenty (20) Work Days, the CITY’s offer of an extension shall be 322
deemed withdrawn. 323
2.02.2 Extension Administration Fee. If FRANCHISEE accepts the CITY’s 324
offer of extension, the FRANCHISEE shall make a payment to the CITY to cover the CITY’s actual 325
administrative costs incurred in extending the AGREEMENT. This payment shall be due to the 326
CITY with the FRANCHISEE’s written notice of acceptance described in Section 2.02.1. The total 327
payment amount to the CITY shall not exceed a total of $5,000 per extension period per 328
FRANCHISEE. 329
2.03 Maximum Term. The maximum term of the AGREEMENT, including all extensions, 330
shall not extend beyond December 31, 2027. 331
ARTICLE 3. Services Provided by the FRANCHISEE 332
3.01 Award of AGREEMENT. Except as otherwise provided in this AGREEMENT, the 333
FRANCHISEE is herein granted a non-exclusive franchise to provide Temporary Construction 334
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and Demolition Debris Collection Service within the Service Area. No other Solid Waste or 335
recycling service shall be provided by the FRANCHISEE. 336
3.02 Limitations to Scope of Non-Exclusive Franchise. 337
3.02.1 No Collection of Garbage, Recyclable Materials or Organic Waste Carts or 338
Bins from any Service Unit covered under the Collection Service Agreement between the City 339
of Rohnert Park and Sonoma County Resource Recovery, LLC, or any successor arrangement 340
entered into by the CITY for such service. 341
3.02.2 No large items removed from a premise by a property cleanup or 342
maintenance company as an incidental part of the total cleanup or maintenance service offered 343
by the company rather than as a hauling service; 344
3.02.3 No agricultural waste, stable matter, manure and any other animal by 345
product for use as tallow 346
3.02.4 No by-products of sewage treatment, including Sludge, ash, grit and 347
screenings; 348
3.02.5 No Hazardous Waste, regardless of its source; 349
3.03 FRANCHISEE acknowledges and agrees that the CITY may permit other persons 350
besides the FRANCHISEE to collect any and all types of materials excluded from the scope of 351
this AGREEMENT, as set forth above, without seeking or obtaining approval of FRANCHISEE. If 352
FRANCHISEE can produce evidence that other persons are servicing Garbage, Recyclable 353
Materials, or Organic Waste carts or Bins, or large items in a manner that is not consistent with 354
the CITY’s Municipal Code or this AGREEMENT, it shall report the location, the name and phone 355
number of the person or company to the CITY along with FRANCHISEE’S evidence of the 356
violation of the exclusiveness of this AGREEMENT and CITY shall determine and take 357
appropriate action to enforce the Code and this AGREEMENT. 358
3.03.1 The scope of this AGREEMENT shall be interpreted to be consistent with 359
Applicable Law, now and during the term of the AGREEMENT. If future judicial interpretations of 360
current law, or new laws, regulations, or judicial interpretations, limit the ability of the CITY to 361
lawfully provide for the scope of services as specifically set forth herein, FRANCHISEE agrees 362
that the scope of the AGREEMENT will be limited to Temporary Construction and Demolition 363
Debris collection services and materials which may be lawfully provided and that the CITY shall 364
not be responsible for any lost profits or losses claimed by FRANCHISEE to arise out of limitations 365
of the scope of the AGREEMENT set forth herein. In such an event, it shall be the responsibility 366
of FRANCHISEE to minimize the financial impact of such future judicial interpretations or new or 367
amended laws. 368
3.04 Service Standards. FRANCHISEE shall perform Collection Services under this 369
AGREEMENT in a thorough and professional manner. Collection Services described in this 370
AGREEMENT shall be performed regardless of weather conditions or difficulty of Collection. 371
3.05 Hours and Days of Collection. 372
3.05.1 Collection Services shall be provided, commencing no earlier than 7:00 373
a.m. and terminating no later than 6:00 p.m., Monday through Friday, and commencing no 374
earlier than 8:00 a.m. and terminating no later than 5:00 p.m. on Saturday, with no service on 375
Sundays. The hours, days, or both of Collection Service may be extended due to extraordinary 376
circumstances or conditions with the prior written consent of the City Representative. 377
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3.05.2 The CITY may direct FRANCHISEE to reduce the Collection Service hours 378
in areas around schools to 3:00 p.m., and in high traffic areas during peak commute hours. 379
When the CITY is conducting road overlay or slurry projects, the CITY reserves the right to 380
temporarily redirect or restrict FRANCHISEE from collection in the affected areas or temporarily 381
change the Collection Service hours if needed. The hours of Collection Service may be 382
extended due to extraordinary circumstances or conditions with the prior written consent of the 383
City Representative. If Commercial Service Units are within one hundred (100) feet of SFD or if 384
the CITY or FRANCHISEE receives repeated noise complaints from residents, the hours of 385
Collection Service for Commercial Service Units may be revisited between the parties in good 386
faith. 387
3.06 Manner of Collection Service. The FRANCHISEE shall provide Collection Services 388
with as little disturbance as possible and shall leave any Container in an upright position at the 389
same point it was collected without obstructing alleys, roadways, driveways, sidewalks, or mail 390
boxes unless the FRANCHISEE or Service Recipient applies for and the CITY issues an 391
encroachment permit. 392
3.07 Temporary Construction and Demolition Debris Containers. 393
3.07.1 Ownership. Ownership of Containers distributed by the FRANCHISEE 394
shall rest with the FRANCHISEE except in the case of the termination of the AGREEMENT prior 395
to the expiration of the initial term or optional extension term due to the default of the 396
FRANCHISEE. Under such circumstances, the CITY shall have the right to take possession of 397
the Containers and shall retain such possession until satisfactory arrangements can be made to 398
provide Collection Service using other equipment. Such time of possession, the CITY shall not 399
be limited, and regardless of the time of possession, there shall be no monies owing to the 400
FRANCHISEE from the CITY for the use of the equipment. Upon the receipt of written notice from 401
the CITY, FRANCHISEE shall submit to the City Representative an inventory of Containers, 402
including their locations. 403
3.07.2 Inspection and Cleaning. FRANCHISEE shall inspect all Containers prior 404
to delivery. Containers shall be in safe, clean and sanitary, and in operable condition with working 405
doors, hinges, locking devices, safety devices, floors and side walls without holes, free of material 406
or material build up, and without broken wheels, welds, or ladders that could cause street damage 407
or harm to users. 408
3.07.3 Graffiti Removal. FRANCHISEE shall remove any and all graffiti within two 409
(2) Work Days of FRANCHISEE being notified by the City Representative or public. 410
FRANCHISEE shall not deliver a Container without FRANCHISEE information visible or with any 411
graffiti appearing on the Container. 412
3.08 Labor and Equipment. FRANCHISEE shall provide and maintain all labor, 413
equipment, tools, facility(ies), and personnel supervision required for the performance of 414
FRANCHISEE’S obligations under this AGREEMENT. FRANCHISEE shall at all times have 415
sufficient backup equipment and labor to fulfill FRANCHISEE’S obligations under this 416
AGREEMENT. No compensation for FRANCHISEE’S services or for FRANCHISEE’S supply of 417
labor, equipment, tools, facilities or supervision shall be provided or paid to FRANCHISEE by the 418
CITY or by any Service Recipient except as expressly provided by this AGREEMENT. 419
3.09 Transfer, Recycling, and Processing Facilities. 420
3.09.1 Transfer, Recycling, and Processing Facilities. FRANCHISEE shall select 421
the transfer, and Processing Facilities. Material collected under this AGREEMENT shall be 422
CITY OF ROHNERT PARK November 14, 2017
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delivered to permitted and licensed facilities that comply with the CalRecycle regulations under 423
Title 14, Chapter 3, Minimum Standards for Solid Waste Handling and Disposal (Article 5.9 – 424
Sections 17380-17386). Except as set forth below, all material collected as a result of performing 425
Collection Services shall be transported to, and delivered on the same day as collection, to a 426
properly permitted and licensed Disposal, transfer, recycling, or Processing Facility. All material 427
collected will be weighed and documented through a weight ticket using certified scales located 428
at the receiving facility. In the event the recycling, or Processing Facility is closed on a Work Day, 429
the FRANCHISEE shall transport the material at such other legally permitted and licensed facility. 430
FRANCHISEE must assure that all transfer, recycling, and Processing Facilities are properly 431
permitted and licensed to receive material collected under this AGREEMENT. Failure to comply 432
with this provision shall result in the levy of Liquidated Damages as specified in Article 11 of this 433
AGREEMENT and may result in the FRANCHISEE being in default under this AGREEMENT. 434
3.09.2 FRANCHISEE shall deliver all Residuals from processed Construction and 435
Demolition Debris Collected by FRANCHISEE to the Disposal Facility for the term of the Waste 436
Delivery Agreement. 437
3.09.3 Permitted and Licensed Facilities. FRANCHISEE must assure that all 438
disposal, transfer, recycling, or processing facilities selected by FRANCHISEE shall possess all 439
existing permits and approvals by local enforcement agencies for the disposal, transfer, recycling, 440
or processing site to be in full compliance with all regulatory agencies to conduct all operations at 441
the approved location. FRANCHISEE, upon written request from the CITY, shall arrange for the 442
facilities selected by the FRANCHISEE to provide copies of facility permits, notices of violations, 443
inspection areas or concerns, or administrative action to correct deficiencies related to the 444
operation. Failure to provide facility information shall result in the levy of Liquidated Damages as 445
specified in Article 11 of this AGREEMENT and may result in the FRANCHISEE being in default 446
under this AGREEMENT. 447
3.09.4 Processing and Disposal. FRANCHISEE shall process and dispose of all 448
material collected from Service Units pursuant to this AGREEMENT in accordance with the 449
following hierarchy: 450
Reuse 451
Disassemble for reuse or recycling 452
Recycle 453
Disposal 454
3.09.5 FRANCHISEE shall not landfill such collected material unless the material 455
cannot be reused or recycled. 456
3.09.6 CITY Direction of Collected Material. CITY reserves the right to direct 457
FRANCHISEE to take collected material pursuant to this AGREEMENT to a designated site or 458
sites for the purpose of permitting persons who will reuse or recycle such material obtain the 459
collected material at no cost. FRANCHISEE shall have no obligation to dispose of the collected 460
material or material residue remaining at the directed site or sites after reusers and recyclers have 461
removed reusable or recyclable items; however, this is subject to, and does not supersede, the 462
requirements of Section 3.09.2 that FRANCHISEE deliver all Residuals from processed 463
Construction and Demolition Debris Collected to the Disposal Facility for the term of the WDA and 464
any extension thereof, or any other similar CITY waste delivery commitment. 465
CITY OF ROHNERT PARK November 14, 2017
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3.10 Inspections. The CITY shall have the right to inspect the FRANCHISEE’S facilities 466
or collection vehicles and their contents at any time while operating inside or outside the CITY. 467
3.11 Spillage and Litter. The FRANCHISEE shall not litter premises in the process of 468
providing Collection Service or while its vehicles are on the road. The FRANCHISEE shall 469
transport all materials collected under the terms of this AGREEMENT in such a manner as to 470
prevent the spilling or blowing of such materials from the FRANCHISEE'S collection vehicle. The 471
FRANCHISEE shall exercise all reasonable care and diligence in providing Collection Service so 472
as to prevent spilling or dropping of material and shall immediately, at the time of occurrence, 473
clean up such spilled or dropped materials. All Containers will be tarped or covered transporting 474
on CITY streets. 475
3.11.1 The FRANCHISEE shall not be responsible for cleaning up sanitary 476
conditions caused by the carelessness of the Service Recipient; however, the FRANCHISEE shall 477
clean up any material or residue that is spilled or scattered by the FRANCHISEE or its employees. 478
3.11.2 Equipment oil, hydraulic fluids, spilled paint, or any other liquid or debris 479
resulting from the FRANCHISEE’S operations or equipment repair shall be covered immediately 480
with an absorptive material and removed from the street surface to comply with all local, state, 481
and federal agency rules and regulations. The CITY must be notified of any liquid spill greater 482
than an eighth (1/8) of a cup within two (2) hours upon incident. When necessary, FRANCHISEE 483
shall apply a suitable cleaning agent to the street surface to provide adequate cleaning. To 484
facilitate such cleanup, FRANCHISEE’S vehicles shall at all times carry sufficient quantities of 485
petroleum absorbent materials along with a broom and shovel. 486
3.11.3 The above paragraphs notwithstanding, FRANCHISEE shall clean up any 487
spillage or litter caused by FRANCHISEE within two (2) hours upon notice from the CITY or public. 488
3.11.4 In the event damage to CITY streets is caused by a hydraulic oil spill, 489
FRANCHISEE shall be responsible for all repairs to return the street to the same condition prior 490
to the spill. FRANCHISEE shall also be responsible for all clean-up activities related to the spill. 491
Repairs and clean-up shall be performed in a manner satisfactory to the City Representative and 492
at no cost to the CITY. 493
3.12 Ownership of Materials. 494
3.12.1 Title to Construction and Demolition Debris material shall pass to 495
FRANCHISEE at such time as said materials are placed in the FRANCHISEE’S collection vehicle. 496
3.12.2 Title to material collected as part of the City Requested- Clean-up Service 497
or Special Collection Service shall pass to FRANCHISEE at the time the material is placed in the 498
Container or other collection vehicle or container approved for use at the event. 499
3.13 Hazardous Waste. 500
3.13.1 Under no circumstances shall FRANCHISEE’S employees knowingly 501
collect Hazardous Waste, or remove unsafe or poorly containerized Hazardous Waste, from a 502
collection Container. If FRANCHISEE determines that material placed in any Container for 503
collection is Hazardous Waste, or other material that may not legally be accepted at the Disposal 504
Facility or one of the Processing Facilities, or presents a hazard to FRANCHISEE'S employees, 505
the FRANCHISEE shall have the right to refuse to accept such material. The generator shall be 506
contacted by the FRANCHISEE and requested to arrange for proper disposal service. If the 507
generator cannot be reached immediately, the FRANCHISEE shall, before leaving the premises, 508
leave a Non-Collection Notice, which indicates the reason for refusing to collect the material. 509
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3.13.2 If Hazardous Waste is found in a collection Container that poses an 510
imminent danger to people or property, the FRANCHISEE shall immediately notify the Rohnert 511
Park Department of Public Safety. The FRANCHISEE shall immediately notify the CITY of any 512
Hazardous Waste that has been identified. 513
3.13.3 If Hazardous Waste is identified at the time of delivery to the Disposal 514
Facility, or one of the processing facilities and the generator cannot be identified, FRANCHISEE 515
shall be solely responsible for handling and arranging transport and disposition of the Hazardous 516
Waste. 517
3.14 Regulations and Record Keeping. FRANCHISEE shall comply with emergency 518
notification procedures required by Applicable Laws and regulatory requirements. All records 519
required by regulations shall be maintained at the FRANCHISEE’S facility. These records shall 520
include waste manifests, waste inventories, waste characterization records, inspection records, 521
incident reports, and training records. 522
ARTICLE 4. Rates, Billing and Payments 523
4.01 Billing and Collection of Payment. The FRANCHISEE shall be responsible for the 524
billing and collection of payments for all Non-Exclusive Temporary Construction and Demolition 525
Debris Collection Service. 526
4.02 Production of Invoices. The FRANCHISEE shall produce an invoice, in a form and 527
format that is approved by the City Representative, for services received under this 528
AGREEMENT. The FRANCHISEE’S invoice shall be remitted to the Service Recipient and will 529
include at a minimum; date of service, material collected, weight collected, and total amount 530
charged. 531
4.03 Methods of Payment. FRANCHISEE shall provide the means for customers to pay 532
bills through one or more of the following methods: cash, checks, credit cards, internet payment 533
service or automatic withdrawal from bank account. 534
4.04 FRANCHISEE’S Payments to CITY. FRANCHISEE shall make payment to the 535
CITY of such fees as may be specified in this Section. 536
4.04.1 Franchise Fee. To reimburse CITY for costs associated with administration 537
of the AGREEMENT and the impacts of the operations on CITY facilities and resources, and in 538
consideration of the franchise granted to FRANCHISEE by the AGREEMENT, FRANCHISEE 539
shall make the following Franchise Fee payments to the City: 540
4.04.1.1 Quarterly Franchise Fee Payments. FRANCHISEE shall 541
pay CITY a quarterly Franchise Fee payment (“Quarterly Franchise Fee Payment”) equal to fifteen 542
percent (15%) of all gross receipts paid by customers and collected under the terms of the 543
AGREEMENT. Payment to CITY shall be due by 5:00 p.m. PT on the fifteenth (15th) day of the 544
month following the quarter the revenues are collected. If the 15th day of the month falls on a day 545
that CITY is closed or a holiday, then the Franchise Fee Payment shall be due on the next 546
business day. Each such payment shall be accompanied by an accounting, which sets forth 547
FRANCHISEE’S gross receipts collected during the preceding month. Gross receipts shall 548
specifically include revenue received by the FRANCHISEE from any entity, including Federal, 549
State, County, or other local facilities within the Service Area for the provision of Collection 550
Services by the FRANCHISEE. Gross receipts shall specifically exclude any revenue from the 551
sale from Recyclable Materials and from grant funding. Failure to pay the correct amount or fees 552
within the required timeline will result in liquidated damages per Article 11. 553
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4.04.2 Reimbursement for the Cost of Procurement. The CITY requires the 554
Franchisee(s) to reimburse the CITY up to Seventy-Five Thousand ($75,000) for the cost of this 555
procurement, divided evenly amongst all Franchisee(s) as determined prior to AGREEMENT 556
execution. 557
4.04.3 The reimbursement will be made to the CITY in two (2) equal payments. 558
The first payment shall be submitted to the City no later than January 15, 2018 and the second 559
payment shall be submitted to the City no later than January 15, 2019. This amount will be shared 560
equally between all Franchisees that are awarded Agreements. 561
No. of Agreements Awarded Amount to be paid 562
by each Franchisee 563
1 $75,000 564
2 $37,500 565
566
3 $25,000 567
568
4 $18,750 569
570
5 $15,000 571
572
6 $12,500 573
574
7 $10,715 575
576
4.04.4 Penalty for Late Payments. Any payments described in this Section 4.04 or 577
elsewhere in the AGREEMENT that are received by the CITY after the due date will be assessed 578
a late penalty equal to twenty-five percent (25%) of the original amount due. Failure by 579
FRANCHISEE to pay both the original payment amount and the late penalty within thirty (30) days 580
of written notice of the delinquency by the CITY will be considered an event of default, and the 581
CITY may terminate the AGREEMENT immediately. 582
4.05 No acceptance by CITY of any payment shall be construed as an accord that the 583
amount is in-fact the correct amount, nor shall such acceptance of payment be construed as a 584
release of any claim CITY may have against FRANCHISEE for any additional sums payable under 585
the provisions of this AGREEMENT. All amounts paid shall be subject to independent audit and 586
recompilation by CITY. If, after the audit, such recompilation indicates an underpayment 587
FRANCHISEE shall pay to CITY the amount of the underpayment and shall reimburse CITY for 588
all reasonable costs and expenses incurred in connection with the audit and recompilation within 589
ten (10) Work Days of receipt of written notice from CITY that such is the case. If, after audit, such 590
recompilation indicates an overpayment, CITY shall notify the FRANCHISEE in writing of the 591
amount of the overpayment, less costs and expenses incurred in connection with the audit and 592
recompilation. FRANCHISEE may offset the amounts next due following receipt of such written 593
notice by the amount specified therein. 594
ARTICLE 5. Minimum Diversion Requirements 595
5.01 Tonnage Data. On or before April 15, 2018 and quarterly thereafter during the term 596
of this AGREEMENT, FRANCHISEE shall deliver to CITY a quarterly report as specified in 597
Section 8.02.1 listing the actual tonnage delivered by the FRANCHISEE to the Disposal or 598
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Processing Facility, the tonnage of material discarded or landfilled including residue, the tonnage 599
of material recycled or composted by material type (metal, wood, concrete, Green Waste, etc.) 600
for the preceding quarter, and the number of Service Recipients collected. 601
5.02 Minimum Diversion Requirements. The FRANCHISEE guarantees delivery of all 602
materials collected during the term of this AGREEMENT to a permitted and licensed Processing 603
Facility, recycler or re-user, for processing. 604
5.03 In the event that the SCWMA or authorized jurisdiction within Sonoma County, 605
certifies a Processing Facility(ies) during the term of the AGREEMENT, if directed by the CITY, 606
the FRANCHISEE guarantees delivery of all materials collected for the remainder of the term of 607
this AGREEMENT to be delivered to a certified Processing Facility. 608
ARTICLE 6. Collection Equipment 609
6.01 Equipment Specifications. 610
6.01.1 General Provisions. All equipment used by FRANCHISEE in the 611
performance of services under this AGREEMENT shall be of a high quality. The collection 612
vehicles shall be designed and operated so as to prevent collected materials from escaping from 613
the vehicles. All collection Containers while driving on CITY streets shall be tarped, covered, or 614
enclosed with screening material to prevent collected materials from leaking, blowing, or falling 615
from the vehicles. All collection vehicles and Containers shall be watertight and shall be operated 616
so that liquids do not spill during collection or in transit. 617
6.01.2 Clean Air Vehicles. During the term of this AGREEMENT, to the extent 618
required by law, FRANCHISEE shall provide its collection vehicles to be in full compliance with 619
current local, State and federal clean air requirements that were adopted and any other 620
applicable air pollution control laws. 621
6.01.3 Safety Markings. All Collection equipment used by FRANCHISEE shall 622
have appropriate safety markings including, but not limited to, highway lighting, flashing and 623
warning lights, clearance lights, and warning flags. All such safety markings shall be subject to 624
the approval of the CITY and shall be in accordance with the requirements of the California 625
Vehicle Code, as may be amended from time to time. 626
6.01.4 Collection Vehicle Signage and Painting. Collection vehicles, except 627
reserve equipment used on a temporary basis, shall be painted and numbered consecutively 628
without repetition and shall have the FRANCHISEE'S name, FRANCHISEE’S customer service 629
telephone number, and the number of the vehicle painted in letters of contrasting color, at least 630
three (3) inches high, on each side of each vehicle. No advertising shall be permitted other than 631
the name of the FRANCHISEE. FRANCHISEE shall repaint or discontinue the use of a collection 632
vehicle at the request of the City Representative to maintain a positive public image as reasonably 633
determined by the City Representative. Collection vehicle signage may be applied using stickers 634
instead of paint, but only so long as the stickers are designed for permanent use and are 635
appropriately maintained to ensure a clean appearance. 636
6.01.5 Signage, Painting, and Cleaning. Containers shall be painted and 637
numbered consecutively without repetition and shall have the FRANCHISEE'S name, 638
FRANCHISEE’S customer service telephone number, and the number of the Container painted 639
in letters of contrasting color, at least three (3) inches high, on at least two (2) sides of each 640
Container. No advertising shall be permitted other than the name of the FRANCHISEE. Such 641
Containers as are provided by the FRANCHISEE shall be steam cleaned by the FRANCHISEE 642
CITY OF ROHNERT PARK November 14, 2017
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as frequently as necessary so as to maintain sanitary conditions. FRANCHISEE shall repaint or 643
discontinue the use of a Container at the request of the City Representative to maintain a positive 644
public image as reasonably determined by the City Representative. Container signage may be 645
applied using stickers instead of paint, but only so long as the stickers are designed for permanent 646
use and are appropriately maintained to ensure a clean appearance. 647
6.01.6 Collection Vehicle Noise Level. All collection vehicle operations shall be 648
conducted as quietly as possible and must comply with U.S. EPA noise emission regulations 649
currently codified at 40 CFR Part 205, and other applicable State County and CITY noise control 650
regulations. 651
6.01.7 Collection Vehicle Size Limitations. Collection vehicles must not exceed a 652
maximum gross vehicle weight of 56,000 pounds (includes both the truck and load weight), no 653
more than 3 axles, and a total load capacity of 40 yards. 654
6.02 Collection Vehicle Registration, Licensing and Inspection. On or before December 1, 655
2017, or as soon as practical, and annually thereafter on December 1, during the term of this 656
AGREEMENT, FRANCHISEE shall submit documentation to the City Representative to verify 657
that each of the FRANCHISEE’S collection vehicles are in compliance with all registration, 658
licensing and inspection requirements of the California Highway Patrol, the California Department 659
of Motor Vehicles, local permitting agency, and any other Applicable Laws or regulations. 660
FRANCHISEE shall not use any vehicle to perform collection services that is not in compliance 661
with applicable registration, licensing, and inspection requirements. 662
6.03 Equipment and Collection Vehicle Maintenance. FRANCHISEE shall maintain 663
Collection equipment and vehicles in a clean condition and in good repair at all times. All parts 664
and systems of the collection equipment and collection vehicle shall operate properly and be 665
maintained in a condition satisfactory to CITY. FRANCHISEE shall wash all collection equipment 666
and collection vehicles at least once a month or more frequently as the CITY may require. 667
However, in times of drought conditions, upon Franchisee or City notification, washing of 668
collection equipment and vehicles may be suspended. 669
6.04 Maintenance Log. FRANCHISEE shall maintain a maintenance log for all collection 670
vehicles. The log shall at all times be accessible to CITY by physical inspection upon request of 671
City Representative, and shall show, at a minimum, each collection vehicle’s FRANCHISEE 672
assigned identification number, date purchased or initial lease, dates of performance of routine 673
maintenance, dates of performance of any additional maintenance, a copy of the most recent BIT 674
inspection report, and description of additional maintenance performed. 675
6.04.1 Equipment and Vehicle Inventory. As of the Effective Date, and annually 676
thereafter as specified in Section 8.02.2, during the term of this AGREEMENT, FRANCHISEE 677
shall provide to CITY an inventory of collection vehicles and major collection equipment used 678
by FRANCHISEE for Collection or transportation and performance of services under this 679
AGREEMENT. The inventory shall indicate each collection vehicle by FRANCHISEE assigned 680
identification number, DMV license number, the most recent BIT inspection report, the age of 681
the chassis and body, type of fuel used, the type and capacity of each vehicle, the number of 682
collection vehicles by type, the date of acquisition, the decibel rating and the maintenance 683
status. FRANCHISEE shall submit to the City Representative, either mail or e-mail, an updated 684
inventory annually to the CITY or more often at the request of the City Representative. 685
6.04.2 Reserve Collection Equipment and Collection Vehicles. The FRANCHISEE 686
shall have available to it, at all times, reserve collection equipment and collection vehicles which 687
can be put into service and operation within one (1) hour of any breakdown. Such reserve 688
CITY OF ROHNERT PARK November 14, 2017
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collection equipment and collection vehicles shall correspond in size and capacity to the 689
collection equipment used by the FRANCHISEE to perform the contractual duties. 690
ARTICLE 7. FRANCHISEE’S Office 691
7.01 FRANCHISEE’S Office. The FRANCHISEE shall maintain an office within Sonoma 692
County that provides a toll-free telephone access to residents and businesses of the CITY and is 693
staffed by trained and experienced Customer Service Representatives (“CSR’s”). Such office 694
shall be equipped with sufficient telephones that all Collection Service related calls received 695
during normal business hours are answered by an employee within five (5) rings, and shall have 696
responsible persons in charge during Collection hours and shall be open during such normal 697
business hours, 8:00 a.m. to 5:00 p.m. on all Work Days. The FRANCHISEE shall provide either 698
a telephone answering service or mechanical device to receive Service Recipient inquiries during 699
those times when the office is closed. Calls received after normal business hours shall be returned 700
and addressed the next Work Day morning. 701
7.01.1 Emergency Contact. The FRANCHISEE shall provide the City 702
Representative with an emergency phone number where the FRANCHISEE can be reached 703
outside of the required office hours. 704
7.01.2 Multilingual/TDD Service. FRANCHISEE shall at all times maintain the 705
capability of responding to telephone calls in English and one (1) other language (Spanish) as 706
the CITY may direct. FRANCHISEE shall at all times maintain the capability or responding to 707
telephone calls through Telecommunications Device for the Deaf (TDD) Services. 708
7.01.3 Service Recipient Calls. During office hours, FRANCHISEE shall 709
maintain a telephone answering system capable of accepting at least five (5) incoming calls at 710
one (1) time. FRANCHISEE shall record all calls including any inquiries, service requests, and 711
complaints into a customer service log. 712
7.01.4 Incoming Calls. All incoming calls will be answered within five (5) rings. 713
Any call “on-hold” in excess of one and one-half (1.5) minutes shall have the option to remain 714
“on-hold” or to be switched to a message center where Service Recipient can leave a message. 715
FRANCHISEE’S CSR shall return Service Recipient calls. 716
ARTICLE 8. Record Keeping & Reporting Requirements 717
8.01 Record Keeping. 718
8.01.1 Accounting Records. FRANCHISEE shall maintain full, complete and 719
separate financial, statistical and accounting records, pertaining to cash, billing, and provisions of 720
all Collection Services provided under this AGREEMENT, prepared on an accrual basis in 721
accordance with generally accepted accounting principles. Such records shall be subject to audit, 722
copy, and inspection. FRANCHISEE shall report Gross Revenues received from provision of the 723
Collection Services. FRANCHISEE shall maintain and preserve all cash, billing and disposal 724
records for a period of not less than five (5) years following the close of each of the 725
FRANCHISEE'S fiscal years. 726
8.01.2 AGREEMENT Materials Records. FRANCHISEE shall maintain records of 727
the quantities of Construction and Demolition Debris Collected from provisions of this 728
AGREEMENT and disposed under the terms of this AGREEMENT, and (ii) Recyclable Materials, 729
by type, collected, processed, sold, donated or given for no compensation, and residue disposed. 730
CITY OF ROHNERT PARK November 14, 2017
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8.01.3 Other Records. FRANCHISEE shall maintain all other records reasonably 731
related to provision of Collection Services, whether or not specified in this Article 8 or elsewhere 732
in the AGREEMENT. 733
8.02 Reporting Requirements. Quarterly reports shall be submitted no later than 5:00 734
p.m. PT thirty (30) calendar days after the end of the reporting quarter and annual reports shall 735
be submitted no later than 5:00 p.m. PT thirty (30) calendar days after the end of each Agreement 736
Year. If the 15th day of the month falls on a day that CITY is closed or a holiday, then the report 737
shall be due the on the next business day. Quarterly and annual reports shall be submitted 738
electronically via e-mail to the CITY and its designated representative on a CITY approved 739
reporting form. 740
8.02.1 Quarterly Reports. Quarterly reports to the CITY shall include: 741
8.02.1.1 Material Collected Data. A listing of the tonnage collected from all 742
Collection Services, diverted and disposed by the FRANCHISEE at the Disposal and 743
Processing Facility for the preceding quarter, including the number of pulls. 744
8.02.1.2 Recycling Data. The number of gross tons collected, processed, 745
and sold or delivered to a recycler (other than Processing Facility) by material type for the 746
preceding quarter. Indicate, by material type (and grade where appropriate), quarterly total of 747
Recyclable Materials processed and sold including facility name and location. Indicate any 748
quantities, by material type, donated or otherwise disbursed without compensation. Indicate 749
quarterly totals and location for Residue disposed. 750
8.02.1.3 Collection Services. Indicate the number of Service Recipients 751
served within the given period of time 752
8.02.1.4 Diversion. The diversion figures shall be calculated as the tons of 753
materials collected by FRANCHISEE from the provision of Collection Services in the CITY that 754
are delivered to the Processing Facility approved by CITY, or that are otherwise handled in a 755
manner that counts as diversion under applicable CalRecycle regulations (in each case, net of all 756
residue from processing), divided by the total tons of materials collected in the Service Area by 757
FRANCHISEE from the provision of Collection Services for the preceding quarter. 758
8.02.1.5 Franchise Fee Payments. Indicate the revenue collected and total 759
franchise fees paid to CITY for the preceding quarter. 760
8.02.1.6 Operational Problems and Actions Taken. Indicate instances of 761
property damage or injuries, overweight vehicles, and any loads rejected, reason for rejection 762
and disposition of load after rejection. 763
8.02.2 Annual Reports. The annual report to the CITY shall include all quarterly 764
reports in Sections 8.2.1 through 8.2.1.3 summarized by quarter and totaled for the year. The 765
FRANCHISEE shall include a historical comparison of the last Agreement Year and prior years 766
with a brief explanation on any increases or decreases in tonnage and Diversion figures of all 767
Agreement Years. Annual reports to the CITY shall also include: 768
8.02.2.1 A summary of all prior year’s Gross Revenue received and 769
Franchise Fees paid. 770
8.02.2.2 Updated complete inventory of collection vehicles, Containers and 771
major collection/processing equipment, including stationary, rolling stock and Containers by type 772
and size. See Section 6.04.1 for additional inventory reporting requirements. 773
CITY OF ROHNERT PARK November 14, 2017
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8.02.2.3 A copy of existing permits and approvals by local enforcement 774
agencies for the Disposal, transfer, recycling or Processing Facilities selected by FRANCHISEE. 775
8.03 Additional Reporting. The FRANCHISEE shall furnish the CITY with any additional 776
reports as may reasonably be required by CITY, such reports to be prepared within thirty (30) 777
days following the reporting period or written notice. 778
ARTICLE 9. Nondiscrimination 779
9.01 Nondiscrimination. In the performance of all work and services under this 780
AGREEMENT, FRANCHISEE shall not discriminate against any person on the basis of such 781
person’s race, sex, color, national origin, religion, marital status, age, disability, or sexual 782
orientation. FRANCHISEE shall comply with all applicable local, state, and federal laws and 783
regulations regarding nondiscrimination, including those prohibiting discrimination in employment. 784
ARTICLE 10. Service Inquiries and Complaints 785
10.01 FRANCHISEE’S Customer Service. All service inquiries and complaints shall be 786
directed to the FRANCHISEE. A representative of the FRANCHISEE shall be available to receive 787
the complaints during normal business hours, as specified in Section 7.01. All service complaints 788
will be handled by the FRANCHISEE in a prompt and efficient manner. In the case of a dispute 789
between the FRANCHISEE and a Service Recipient cannot be resolved accordingly, the matter 790
will be reviewed and a decision made by the City Representative. 791
10.01.1 The FRANCHISEE will utilize the Customer Service Log to maintain 792
a record of all inquiries and complaints in a manner prescribed by the CITY. 793
ARTICLE 11. Quality of Performance 794
11.01 Intent. FRANCHISEE acknowledges and agrees that one of CITY’s primary goals 795
in entering into this AGREEMENT is to ensure that the Collection Services are of the highest 796
caliber, that Service Recipient satisfaction remains at the highest level, that the minimum 797
Diversion levels are achieved, and that materials collected are put to the highest and best use to 798
the extent feasible. 799
11.02 Service Supervisor. As of the Effective Date and annually thereafter during the 800
term of this AGREEMENT, FRANCHISEE shall provide the CITY with the name and contact 801
information of the supervisor to be in charge of the Collection Service within the Service Area. At 802
least thirty (30) calendar days prior to replacing the designated supervisor, FRANCHISEE shall 803
notify CITY in writing of the name and qualifications of the new service supervisor. FRANCHISEE 804
shall insure that such replacement is an individual with like qualifications and experience. The 805
supervisor shall be available to the City Representative through the use of telecommunication 806
equipment at all times that, FRANCHISEE is providing Collection Services. In the event the 807
supervisor is unavailable due to illness or vacation, FRANCHISEE shall designate an acceptable 808
substitute who shall be available and who has the authority to act in the same capacity as the 809
supervisor. The service supervisor shall provide the CITY with an emergency phone number 810
where the supervisor can be reached outside of normal business hours. 811
11.03 Liquidated Damages. The parties further acknowledge that consistent and reliable 812
Collection Service is of utmost importance to CITY and that CITY has considered and relied on 813
FRANCHISEE’s representations as to its quality of service commitment in awarding the 814
AGREEMENT to the FRANCHISEE. The parties further recognize that some quantified standards 815
CITY OF ROHNERT PARK November 14, 2017
Page 22 of 42
of performance are necessary and appropriate to ensure consistent and reliable service and 816
performance. The parties further recognize that if FRANCHISEE fails to achieve the performance 817
standards, or fails to submit required documents in a timely manner, CITY, and CITY’s residents 818
and businesses will suffer damages and that it is and will be impractical and extremely difficult to 819
ascertain and determine the exact amount of damages. Therefore, without prejudice to CITY’s 820
right to treat such non-performance as an event of default under Article 16, the parties agree that 821
the Liquidated Damages amount defined in this Article 11 represent reasonable estimates of the 822
amount of such damages considering all of the circumstances existing on the Effective Date of 823
this AGREEMENT, including the relationship of the sums to the range of harm to CITY, customers 824
and the community as a whole that reasonably could be anticipated and the anticipation that proof 825
of actual damages would be costly or impractical. In placing their initials at the places provided, 826
each party specifically confirms the accuracy of the statements made above and the fact that 827
each party has had ample opportunity to consult with legal counsel and obtain an explanation of 828
the Liquidated Damages provisions at the time that the AGREEMENT was executed. 829
FRANCHISEE Initial Here__________ 830
FRANCHISEE agrees to pay (as Liquidated Damages and not as penalty) the following amounts: 831
Liquidated Damages
Item Amount
a. Failure to notify the CITY within two (2) hours of an
incident related to Section 3.11 Spillage and Litter.
$100.00 per incident
per Service Recipient.
b. Failure or neglect to make a good faith effort to
completely resolve each complaint within 90 days of
receiving the complaint from a Service Recipient or
CITY.
$100.00 per incident
per Service Recipient.
c. Failure to clean up or compensate for spillage or litter
caused by FRANCHISEE within 90 Work Days of being
notified of the incident.
$300.00 per incident
per location.
d. Failure to repair damage or compensate for damage to
customer property caused by FRANCHISEE or its
personnel within 90 Work Days of being notified of the
incident.
$500.00 per incident
per location.
e. Failure to repair damage or compensate for damage to
CITY property caused by FRANCHISEE or its
personnel within 90 Work Days of being notified of the
incident.
$1,500.00 per incident.
f. Failure to compensate for damage to CITY streets, not
within normal wear and tear, caused by FRANCHISEE
or equipment of FRANCHISEE within 90 Work Days of
being notified of the incident.
$3,000.00 per incident
and the actual cost of
repair to CITY’s
satisfaction—no cost to
CITY.
g. Failure to maintain collection equipment in a clean, safe,
and sanitary manner.
$500.00 per incident
per day.
CITY OF ROHNERT PARK November 14, 2017
Page 23 of 42
Liquidated Damages
Item Amount
h. Failure to have a collection vehicle operator properly
licensed.
$2,500.00 per incident
per day.
i. Failure to maintain office hours as required by this
AGREEMENT.
$500.00 per incident
per day.
j. Failure to maintain or submit as specified in the
AGREEMENT to CITY, all documents and reports
required under the provisions of this AGREEMENT.
$250.00 per incident
per day.
k. Failure to properly cover materials in collection vehicles. $500.00 per incident.
l. Failure to display FRANCHISEE’S name and customer
service phone number on collection vehicles and
Containers.
$500.00 per incident
per day.
m. Failure to comply with the hours of operation as required
by this AGREEMENT.
$1,000.00 per incident
per day.
n. Failure to remove graffiti within two (2) Work Days or
delivering a debris box with graffiti on it to a customer.
$500.00 per incident.
o. Failure to have FRANCHISEE personnel in proper
uniform.
$250.00 per incident
per day.
p. Collection vehicles that exceed 56,000 lbs. GVW, 3
axles, or load capacity of greater than 40 yards.
$500.00 per incident
q. Failure to deliver and process collected materials at
Processing Facility prior to delivering Solid Waste to
Disposal Facility.
Current Tipping Fee at
Sonoma County
Landfill System/ton
Disposed
r. Failure to deliver any collected materials to a properly
permitted and licensed Disposal Facility, transfer, or
Processing Facility, as appropriate, except as otherwise
expressly provided in this AGREEMENT.
$2,500.00 first failure
$5,000.00 second
failure.
30 day notice of
Termination for third
subsequent failure.
s. Failure to meet collection vehicle noise requirements. $250.00 per incident
per day.
t. Failure to provide facility information requested by the
CITY within five (5) work days
$250.00 per incident
per day
u. Failure to pay correct value of Franchise Fee or failure
to pay Quarterly Franchise Fee by required due date.
25% of amount due.
CITY OF ROHNERT PARK November 14, 2017
Page 24 of 42
Liquidated Damages
Item Amount
v. Failure to pay penalty for incorrectly calculated or late
Franchise Fee.
Immediate termination.
w. Disposal of Residuals at a facility except for Disposal
Facility.
Immediate termination.
x. Failure to maintain or provide required insurance
certificates during the term of the Agreement.
Immediate termination.
y. Failure to cooperate or provide the requested
documents for a Performance Review within thirty (30)
Work Days.
FRANCHISEE will be
considered in Default of
AGREEMENT.
11.4. Procedure for Review of Liquidated Damages. The City Representative may 832
assess Liquidated Damages pursuant to this Article 11 on a monthly basis. At the end of each 833
month during the term of this AGREEMENT, the City Representative shall issue a written notice 834
to FRANCHISEE (“Notice of Assessment”) of the liquidated damages assessed and the basis for 835
each assessment. 836
11.4.1. The assessment shall become final unless, within ten (10) calendar days 837
of the date of the notice of assessment, FRANCHISEE provides a written request for a meeting 838
with the City Manager and City Representative to present evidence that the assessment should 839
not be made. 840
11.4.2. The City Representative shall schedule a meeting between FRANCHISEE 841
and the City Manager or the Manager’s designee as soon as reasonably possible after timely 842
receipt of FRANCHISEE’S request for the same. 843
11.4.3. The City Manager or the Manager’s designee shall review FRANCHISEE’S 844
evidence and render a decision sustaining or reversing the liquidated damages as soon as 845
reasonably possible after the meeting. Written notice of the decision shall be provided to 846
FRANCHISEE. 847
11.4.4. In the event FRANCHISEE does not submit a written request for a meeting 848
within ten (10) calendar days of the date of the Notice of Assessment, the City Representative’s 849
determination shall be final and FRANCHISEE shall submit payment to CITY no later than that 850
tenth (10th) day. 851
11.4.5. If monies are owed to FRANCHISEE, CITY with notification to 852
FRANCHISEE, will deduct the liquidated damages from amounts otherwise due to FRANCHISEE. 853
11.4.6. CITY’S assessment or collection of liquidated damages shall not prevent 854
CITY from exercising any other right or remedy, including the right to terminate this AGREEMENT, 855
for FRANCHISEE’S failure to perform the work and services in the manner set forth in this 856
AGREEMENT. 857
CITY OF ROHNERT PARK November 14, 2017
Page 25 of 42
ARTICLE 12. AGREEMENT Compliance 858
12.01 Selection and Cost. The CITY may conduct a “Compliance Review” of the 859
FRANCHISEE’S performance and compliance with the requirements of this AGREEMENT during 860
the term of this AGREEMENT, including prior to an extension. At the discretion of the CITY, 861
Compliance Reviews may occur every two (2) years, or as deemed necessary. The Compliance 862
Reviews will be performed by a qualified firm under contract to the CITY. The CITY shall have the 863
final responsibility for the selection of the firm but shall seek and accept comments and 864
recommendations from the FRANCHISEE. The FRANCHISEE shall be responsible for the cost 865
of the Compliance Review, up to a maximum of Ten Thousand Dollars ($10,000.00) per 866
Compliance Review. CONTRACTOR will reimburse CITY thirty (30) days from CITY submitting 867
invoice or request to CONTRACTOR for reimbursement. 868
12.02 Purpose. The Compliance Review shall be designed to meet the following 869
objectives: 870
12.02.1 Verify that Franchise Fees, and other fees required under this 871
AGREEMENT, have been properly calculated and paid to the CITY. 872
12.02.2 Verify FRANCHISEE’S compliance with the reporting requirements 873
and performance standards of this AGREEMENT. 874
12.03 FRANCHISEE’S Cooperation. FRANCHISEE shall cooperate fully with the review 875
and provide all requested data, including operational data, financial data, and other data 876
requested by the CITY within thirty (30) Work Days. Failure of the FRANCHISEE to cooperate or 877
provide the requested documents in the required time shall be considered an event of default. 878
12.04 AGREEMENT Actions. Whenever action and/or approval by the CITY is required 879
under this AGREEMENT, the City Manager or his or her designee may act on and/or approve 880
such matter unless specifically provided otherwise, or unless the City Manager determines in his 881
or her discretion that such action or approval requires referral to the City Council for consideration. 882
ARTICLE 13. Performance Bond 883
13.01 Performance Bond. The AGREEMENT must be executed and a performance bond 884
must be furnished by the FRANCHISEE within ten (10) calendar days from the date CITY awards 885
and executes the Agreement; otherwise, the bid bond shall be forfeited to the CITY. The 886
FRANCHISEE shall furnish to the CITY, and keep current, a performance bond in a form that is 887
acceptable to the CITY, for the faithful performance of this AGREEMENT and all obligations 888
arising hereunder in the amount of Ten Thousand Dollars ($10,000.00). 889
13.01.1 The performance bond shall be executed by a surety company that 890
is acceptable to the CITY, and is included on the list of surety companies approved by the 891
Treasurer of the United States. 892
13.02 Letter of Credit. As an alternative to the performance bond required by Section 893
13.01, at CITY’s option, FRANCHISEE may deposit with CITY an irrevocable letter of credit in an 894
amount as set forth in Article 13.01, acceptable to the CITY in form and content and issued by an 895
FDIC insured banking institution chartered to business in the state of California, in the CITY’s 896
name, and callable at the discretion of the CITY. Nothing in this Article 13 shall in any way obligate 897
the CITY to accept a letter of credit in lieu of the performance bond. 898
CITY OF ROHNERT PARK November 14, 2017
Page 26 of 42
ARTICLE 14. Insurance 899
14.01 Insurance Policies. FRANCHISEE shall secure and maintain throughout the term 900
of this AGREEMENT insurance against claims for injuries to persons or damages to property 901
which may arise from or in connection with FRANCHISEE’S performance of work or services 902
under this AGREEMENT. FRANCHISEE’S performance of work or services shall include 903
performance by FRANCHISEE’S employees, agents, representatives and subcontractors. 904
14.01.1 Minimum Scope of Insurance. Insurance coverage shall be at least 905
this broad: 906
14.01.1.1 Insurance Services Office Form No. G0 0002 or, if approved 907
by CITY, its equivalent, covering Comprehensive General Liability and Insurance Services Office 908
Form No. GL 0404 covering Broad Form Comprehensive General Liability; or Insurance Services 909
Office Commercial General Liability coverage (“occurrence” form CG 0001). 910
14.01.1.2 Insurance Services Office Form No. CA 0001 covering 911
Automobile Liability, code 1 “any auto”, or code 2 “owned autos” and endorsement CA 0025. 912
Coverage shall also include code 8, “hired autos” and code 9 “non-owned autos.” 913
14.01.2 Workers’ Compensation Insurance as required by the 914
California Labor Code and Employers Liability Insurance and/or Errors and Omissions. 915
14.01.3 Hazardous Waste and Environmental Impairment Liability 916
Insurance. 917
14.01.4 Employee Blanket Fidelity Bond. 918
14.02 Minimum Limits of Insurance. FRANCHISEE shall maintain insurance limits no 919
less than: 920
14.02.1 Comprehensive General Liability: Ten Million Dollars 921
($10,000,000.00) combined single limit per occurrence for bodily injury, personal injury, and 922
property damage. 923
14.02.2 Automobile Liability: Ten Million Dollars ($10,000,000.00) 924
combined single limit per accident for bodily injury and property damage. 925
14.02.3 Workers’ Compensation and Employers Liability: Workers’ 926
Compensation limits as required by the California Labor Code and Employers Liability limits of 927
Three Million Dollars ($3,000,000.00) per accident. 928
14.02.4 Employee Blanket Fidelity Bond. Employee Blanket Fidelity Bond 929
in the amount of Five Hundred Thousand Dollars ($500,000.00) per employee, covering 930
dishonesty, forgery, alteration, theft, disappearance, destruction (inside or outside). 931
14.02.5 Hazardous Waste and Environmental Impairment Liability: Three 932
Million Dollars ($3,000,000.00) each occurrence/Ten Million Dollars ($10,000,000.00) policy 933
aggregate covering liability arising from the release of waste materials and/or irritants, 934
contaminants or pollutants. Such coverage shall, if commercially available without involvement of 935
CITY, automatically broaden in its form of coverage to include legislated changes in the definition 936
of waste material and/or irritants, contaminants or pollutants. This policy shall stipulate this 937
insurance is primary and no other insurance carried by CITY will be called upon to contribute to 938
the loss suffered by the FRANCHISEE hereunder and waive subrogation against the CITY and 939
other additional insured’s. 940
CITY OF ROHNERT PARK November 14, 2017
Page 27 of 42
14.03 Deductibles and Self-Insured Retention. Any deductibles or self-insured retention 941
must be declared to, and approved by, CITY. 942
14.04 Endorsements. The policies are to contain, or be endorsed to contain, the following 943
provisions: 944
14.04.1 The CITY, its officers, employees, agents and volunteers are to be 945
covered as additional insured with respect to liability arising out of automobiles owned, leased, 946
hired or borrowed by or on behalf of FRANCHISEE; products and completed operations of 947
FRANCHISEE; and with respect to liability arising from work or operations performed by or on 948
behalf of the FRANCHISEE including material parts or equipment furnished in connection with 949
such work or operations; Pollution and/or Asbestos Pollution. 950
14.04.2 FRANCHISEE’S insurance coverage shall be primary insurance as 951
respects CITY, its officers, officials, employees, agents, and volunteers. Any insurance or self-952
insurance maintained by the CITY, its officers, officials, employees, agents, or volunteers shall be 953
excess of the FRANCHISEE’S insurance and shall not contribute with it. 954
14.04.3 Each insurance policy required by this clause shall be occurrence-955
based, or an alternative form as approved by the CITY and shall be endorsed to state that 956
coverage shall not be cancelled by the Insurer except after thirty (30) days prior written notice has 957
been given to the CITY. 958
14.04.4 The FRANCHISEE’S insurance shall apply separately to each 959
insured against whom claim is made or suit is brought, except with respect to the limits of the 960
insurer’s liability. 961
14.04.5 The Automobile Liability policy shall be endorsed to delete the 962
Pollution and/or the Asbestos exclusion and add the Motor Carrier act endorsement (MCS-90) TL 963
1005, TL 1007 and /or other endorsements required by federal or state authorities. 964
14.04.6 Worker’s Compensation and Employers Liability Coverage. The 965
insurer shall agree to waive all rights of subrogation against the CITY, its officers, officials, 966
employees, and volunteers for losses arising from work performed by the Grantee for the CITY. 967
14.04.7 All Coverage. Each insurance policy required by this clause shall 968
be occurrence-based or an alternate form as approved by the CITY and endorsed to state that 969
coverage shall not be suspended, voided, cancelled by either party, reduced in coverage or limits 970
except after thirty (30) days’ prior written notice by certified mail, return receipt requested, has 971
been given to the CITY. 972
14.04.7.1 Any failure to comply with reporting provisions of the policies 973
shall not affect FRANCHISEE’S obligations to CITY, its officers, officials, employees, agents, or 974
volunteers. 975
14.04.7.2 The CITY, its officers, officials, agents, employees and 976
volunteers shall be named as additional insured on all policies. 977
14.05 Acceptability of Insurers. Insurance is to be placed with insurers acceptable to the 978
CITY. 979
14.06 Verification of Coverage. FRANCHISEE shall furnish CITY with original certificates 980
and with amendatory endorsements effecting coverage required by this clause. The 981
endorsements are to be signed by a persons authorized by the Insurer to bind coverage on its 982
behalf. The endorsements are to be on forms provided by the CITY, unless the insurer will not 983
use the CITY’s forms. All endorsements are to be received and approved by the CITY before work 984
CITY OF ROHNERT PARK November 14, 2017
Page 28 of 42
commences. As an alternative to the CITY’s forms, the Franchisee’s insurer may provide 985
complete copies of all required insurance policies, including endorsements effecting coverage 986
required by these specifications. 987
14.07 Subcontractors. FRANCHISEE shall include all subcontractors as insured under 988
its policies or shall obtain separate certificates and endorsements for each subcontractor. 989
14.07.1 Proof of insurance shall be mailed to the following address or any 990
subsequent address as may be directed in writing by the CITY. 991
City of Rohnert Park 992
Risk Management 993
130 Avram Avenue 994
Rohnert Park, CA 94928 995
14.08 Modification of Insurance Requirements. The insurance requirements provided in 996
this AGREEMENT may be modified or waived by the CITY, in writing, upon the request of 997
FRANCHISEE if the CITY determines such modification or waiver is in the best interest of CITY 998
considering all relevant factors, including exposure to CITY. 999
14.09 Rights of Subrogation. All required insurance policies shall preclude any 1000
underwriter's rights of recovery or subrogation against CITY, its officers, officials, employees, and 1001
volunteers for losses arising from work performed by FRANCHISEE for the CITY under this 1002
AGREEMENT, with the express intention of the parties being that the required insurance 1003
coverage protects both parties as the primary coverage for any and all losses covered by the 1004
above-described insurance. FRANCHISEE shall ensure that any companies issuing insurance to 1005
cover the requirements contained in this AGREEMENT agree that they shall have no recourse 1006
against CITY for payment or assessments in any form on any policy of insurance. The clauses 1007
‘Other Insurance Provisions’ and ‘Insured Duties in the Event of an Occurrence, Claim or Suit’ as 1008
it appears in any policy of insurance in which CITY is named as an additional insured shall not 1009
apply to CITY. 1010
ARTICLE 15. Indemnification 1011
15.01 Indemnification of the CITY. FRANCHISEE shall defend, indemnify and hold 1012
harmless, to the fullest extend allowed by law, CITY, its officers, officials, employees, volunteers 1013
agents and assignees (indemnities), from and against any and all loss, liability, penalties, 1014
forfeitures, claims, demands, actions, proceedings or suits, in law or in equity, of every kind and 1015
description, (including, but not limited to, injury to and death of any person and damage to 1016
property, or for contribution or indemnity claimed by third parties) arising or resulting from or in 1017
any way connected with: (i) the operation of the FRANCHISEE, it agents, employees, 1018
FRANCHISEEs, and/or subcontractors, in excising the privileges granted to it by this 1019
AGREEMENT; (ii) the failure of the FRANCHISEE, it agents, employees, FRANCHISEEs, and/or 1020
subcontractors to comply in all respects with the provisions and requirements of this 1021
AGREEMENT, Applicable Laws, ordinances and regulations, and/or applicable permits and 1022
licenses; and (iii) the acts of FRANCHISEE, its agents, employees, FRANCHISEES, and/or 1023
subcontractors in performing services under this AGREEMENT for which strict liability is imposed 1024
by law. The foregoing indemnity shall apply regardless of whether such loss, liability, penalty, 1025
forfeiture, claim, action, suite injury, death, or damage is also caused in part by any of the 1026
indemnitees’ negligence. FRANCHISEE’s indemnity obligations under all sections of this Article 1027
15 shall survive the expiration or earlier termination of this AGREEMENT. 1028
CITY OF ROHNERT PARK November 14, 2017
Page 29 of 42
15.02 The FRANCHISEE’S obligation to defend, hold harmless, and indemnify shall not 1029
be excused because of the FRANCHISEE’S inability to evaluate liability or because the 1030
FRANCHISEE evaluates liability and determines that the FRANCHISEE is not liable the claimant. 1031
The FRANCHISEE must respond within thirty (30) days to the tender of a claim for defense and 1032
indemnity by the CITY, unless this time has been extended by the CITY. If the FRANCHISEE fails 1033
to accept or reject a tender of defense and indemnity within thirty (30) days, in addition to any 1034
other remedy authorized by law, so much of the money due the FRANCHISEE under the by virtue 1035
of this AGREEMENT as shall reasonably be considered necessary by the CITY, may be retained 1036
by the CITY until disposition has been made or the claim or suit for damages, or until the 1037
FRANCHISEE accepts or ejects the tender of defense, whichever occurs first. With respect to 1038
third party claims against the FRANCHISEE, the FRANCHISEE waives any and all rights of any 1039
type to express or implied indemnity against the indemnities. 1040
15.03 Hazardous Substances Indemnification. The FRANCHISEE shall indemnify, hold 1041
harmless, defend with counsel acceptable to the CITY, protect and hold harmless the CITY, its 1042
officers, officials, employees, agents, assigns and any successor or successors to the CITY’s 1043
interest from and against all claims, damages (including but not limited to special, consequential, 1044
natural resources and punitive damages) injuries, response mediation and removal costs, losses, 1045
demands, debts, liens, liabilities, causes of action, suits, legal or administrative proceedings, 1046
interest, fines, charges, penalties, attorney’s fees for the adverse party and expenses (including 1047
but not limited to attorney’s and expert witness fees and costs incurred in connection with 1048
defending against any of the forgoing or enforcing this indemnity) of any kind whatsoever paid, 1049
incurred or suffered by, or asserted against CITY or is officers, officials, employees, agents, 1050
assigns, or contactors arising from or attributable to acts or omissions including but not limited to 1051
any repair, cleanup or detoxification, or preparation and implementation of any removal, remedial, 1052
response, closure or other plan (regardless of whether undertake due to governmental action) 1053
concerning any hazardous substance or Hazardous Wastes at any place where FRANCHISEE 1054
transports, stores, or disposes of Solid Waste pursuant to this AGREEMENT. The foregoing 1055
indemnity is intended to operate as an AGREEMENT pursuant to Section 107(e) of CERCLA, 42 1056
U.S.C. sections 9607(c) and California Health and Safety Code Section 25364, to defend insure, 1057
protect, hold harmless and indemnify the CITY from liability. 1058
15.04 FRANCHISEE agrees to protect, indemnify, hold harmless, and defend CITY with 1059
counsel selected by FRANCHISEE and approved by CITY, to pay all attorneys’ fees, and to 1060
indemnify and hold CITY harmless from and against all fines or penalties imposed by CalRecycle 1061
if the Diversion goals specified in California Public Resources Code Section 41780 as of the date 1062
hereof and hereafter throughout are not met by the CITY with respect to the materials collected 1063
by FRANCHISEE and if the lack in meeting such goals are attributable to the failure of the 1064
FRANCHISEE to implement and operate the recycling or Diversion programs or undertake the 1065
related activities required by this AGREEMENT. 1066
15.05 FRANCHISEE shall defend, hold harmless, and indemnify CITY, its officers, 1067
officials, employees, volunteers, agents and assignees (indemnitees) from and against any loss, 1068
liability, penalties, forfeiture, claims, damages, demands, actions, proceedings or suits, in law or 1069
equity, of every kind and description, arising from the CITY’s setting of maximum Service Rates 1070
for Collection Service under this AGREEMENT and/or in connection with the application of Article 1071
XIIC and Article XIID of the California Constitution to the imposition, payment, or collection of 1072
Service Rates and fees for services provided by FRANCHISEE under this AGREEMENT, and/or 1073
in connection with the imposition or payment of Franchise Fees under this AGREEMENT. 1074
CITY OF ROHNERT PARK November 14, 2017
Page 30 of 42
15.06 Consideration. It is specifically understood and agreed that the consideration 1075
inuring to the FRANCHISEE for the execution of this AGREEMENT consists of the promises, 1076
payments, covenants, rights, and responsibilities contained in this AGREEMENT. 1077
15.07 Obligation. The execution of this AGREEMENT by the FRANCHISEE shall 1078
obligate the FRANCHISEE to comply with the foregoing indemnification provision; however, the 1079
collateral obligation of providing insurance must also be complied with as set forth in Article 14 1080
above. 1081
15.08 Subcontractors. The FRANCHISEE shall require all subcontractors to enter into 1082
an AGREEMENT containing the provisions set forth in the preceding subsection in which 1083
AGREEMENT the subcontractor fully indemnifies the CITY in accordance with this AGREEMENT. 1084
15.09 Exception. Notwithstanding Sections 15.01, 15.02 and 15.03 of this AGREEMENT, 1085
FRANCHISEE’S obligation to indemnify, hold harmless and defend CITY, its officers and 1086
employees shall not extend to any loss, liability, penalty, plain, damage, action or suit arising or 1087
resulting from acts or omissions constituting willful misconduct or sole negligence on the part of 1088
the CITY its officers or employees. 1089
15.10 Damage by FRANCHISEE. If FRANCHISEE’S employees or subcontractors 1090
cause any injury, damage, or loss to CITY property, including but not limited to CITY streets or 1091
curbs, FRANCHISEE shall reimburse CITY for CITY’s cost of repairing such injury, damage, or 1092
loss. Such reimbursement is not in derogation of any right of CITY to be indemnified by 1093
FRANCHISEE for any such injury, damage, or loss. With the prior written approval of CITY, 1094
FRANCHISEE may repair the damage at FRANCHISEE’S sole cost and expense. Damage to 1095
CITY streets shall not include normal wear and tear caused by collection vehicles. 1096
ARTICLE 16. Default 1097
16.01 Termination. The CITY may terminate this AGREEMENT, except as otherwise 1098
provided below in this Article, by giving the FRANCHISEE thirty (30) calendar days advance 1099
written notice, to be served as provided in Article 33, upon the determination of any one of the 1100
following events: 1101
16.01.1 The FRANCHISEE shall take the benefit of any present or future 1102
insolvency statute, or shall make a general assignment for the benefit of creditors, or is the subject 1103
of a voluntary or involuntary petition in a bankruptcy court seeking an arrangement for its 1104
reorganization or the readjustment of its indebtedness under the Federal bankruptcy laws or 1105
under any other law or statute of the United States or any state thereof, or consent to the 1106
appointment of a receiver, trustee or liquidator of all or substantially all of its property; or 1107
16.01.2 By, or pursuant to, or under the authority of any legislative act, 1108
resolution or rule or any order or decree of any Court or governmental board, agency or officer 1109
having jurisdiction, a receiver, trustee or liquidator shall take possession or control of all or 1110
substantially all of the property of the FRANCHISEE, and such possession or control shall 1111
continue in effect for a period of sixty (60) calendar days; or 1112
16.01.3 The FRANCHISEE has defaulted, by failing or refusing to pay in a 1113
timely manner the Liquidated Damages or other monies due the CITY and said default is not 1114
cured within thirty (30) calendar days of receipt of written notice by CITY to do so; or 1115
16.01.4 The FRANCHISEE has defaulted by allowing any final judgment for 1116
the payment of money to stand against it unsatisfied and said default is not cured within thirty 1117
(30) calendar days of receipt of written notice by CITY to do so; or 1118
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16.01.5 In the event that the monies due the CITY under Article 4 or any 1119
unpaid Liquidated Damages owed to the CITY under Article 11 are the subject of a judicial 1120
proceeding, the CITY may, at its option, call the Performance Bond, or hold the FRANCHISEE 1121
in default of this AGREEMENT. All bonds shall be in the form acceptable to the City Attorney; 1122
or 1123
16.01.6 The FRANCHISEE has defaulted, by failing or refusing to perform 1124
or observe the terms, conditions or covenants in this AGREEMENT, including but not limited to 1125
satisfactory conformance with the requirements of Article 3 and Article 11 hereof, the service 1126
levels prescribed herein, or any of the rules and regulations promulgated by the CITY pursuant 1127
hereto, or by wrongfully failing or refusing to comply with the instructions of the City 1128
Representative relative thereto; provided that said default is not cured within thirty (30) calendar 1129
days of receipt of written notice by the CITY to do so, or if by reason of the nature of such 1130
default, the same cannot be remedied within thirty (30) calendar days following receipt by the 1131
FRANCHISEE of written demand from the CITY to do so, the FRANCHISEE fails to commence 1132
the remedy of such default within said thirty (30) calendar days following such written notice or 1133
having so commenced shall fail thereafter to continue with diligence the curing thereof. In any 1134
dispute concerning failure to remedy or diligence in pursuing a cure, the FRANCHISEE shall 1135
have the burden of proof to demonstrate (a) that the default cannot be cured within thirty (30) 1136
calendar days, and (b) that it is proceeding with diligence to cure said default, and such default 1137
will be cured within a reasonable period of time. However, notwithstanding anything contained 1138
herein to the contrary, for the failure of the FRANCHISEE to provide Collection Services for a 1139
period of three (3) consecutive Work Days, on the fourth (4th) Work Day the CITY may secure 1140
the FRANCHISEE'S equipment, records and other property used or useful in providing 1141
Collection Services under this AGREEMENT in order to provide interim Collection Services until 1142
such time as the matter is resolved and the FRANCHISEE is again able to perform pursuant to 1143
this AGREEMENT; provided, however, if the FRANCHISEE is unable for any reason or cause 1144
to resume performance at the end of thirty (30) calendar days all liability of the CITY under this 1145
AGREEMENT to the FRANCHISEE shall cease and this AGREEMENT may be deemed 1146
terminated by the CITY, and the CITY shall retain equipment, records and other property used 1147
in providing Collection Services on an interim basis unit the CITY has made other suitable 1148
arrangements for the provision of Collection Services, which may include award of the 1149
AGREEMENT to another FRANCHISEE. 1150
16.01.7 In the event that the AGREEMENT is terminated, FRANCHISEE 1151
shall furnish the CITY with immediate access to all of its business records related to its customer 1152
and billing accounts for collection services. 1153
16.02 Violations. Notwithstanding the foregoing and as supplemental and additional 1154
means of termination of this AGREEMENT under this Article, in the event that FRANCHISEE'S 1155
record of performance shows that FRANCHISEE has frequently, regularly or repetitively defaulted 1156
in providing Collection Services, and, after written default notices from CITY, has not timely cured 1157
such defaults within the applicable cure periods set forth in Section 16.01.6, CITY in its sole 1158
discretion may determine that FRANCHISEE is a "habitual violator", in which case FRANCHISEE 1159
shall be deemed to have waived the right to any further notice or grace period to correct any 1160
subsequent default. 1161
16.02.1 CITY shall thereupon issue FRANCHISEE a final warning citing the 1162
circumstances for such determination, and any single default by FRANCHISEE of whatever 1163
nature, subsequent to FRANCHISEE’s receipt of such warning, shall be grounds for immediate 1164
termination of the AGREEMENT. 1165
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16.02.2 In the event of any such subsequent default, CITY may terminate 1166
this AGREEMENT upon giving of final written notice to FRANCHISEE, such termination to be 1167
effective upon the date specified in CITY’s written notice to FRANCHISEE, and all contractual 1168
fees due hereunder plus any and all charges and interest shall be payable to said date, and 1169
FRANCHISEE shall have no further rights hereunder. 1170
16.02.3 Immediately upon the specified date in such final notice 1171
CONTRACTOR shall proceed to cease any further performance under this Agreement. 1172
16.03 Effective Date. In the event of the aforesaid events specified above, and except as 1173
otherwise provided in said subsections, termination shall be effective upon the date specified in 1174
the CITY's written notice to the FRANCHISEE and upon said date this AGREEMENT shall be 1175
deemed immediately terminated and upon such termination all liability of the CITY under this 1176
AGREEMENT to the FRANCHISEE shall cease, and the CITY shall have the right to call the 1177
performance bond and shall be free to negotiate with other Franchisees for the operation of the 1178
herein specified services. The FRANCHISEE’s AGREEMENT terminated due to failure to 1179
perform shall reimburse the CITY all direct and indirect costs of providing interim Collection 1180
Services until a new appointed Franchisee is determined. 1181
16.04 Immediate Termination. CITY may terminate this AGREEMENT immediately upon 1182
written notice to FRANCHISEE in the event FRANCHISEE fails to provide and maintain the 1183
performance bond as required by this AGREEMENT, FRANCHISEE fails to obtain or maintain 1184
insurance policies endorsements as required by this AGREEMENT, FRANCHISEE fails to 1185
provide the proof of insurance as required by this AGREEMENT, FRANCHISEE offers or gives 1186
any Gift prohibited by CITY administrative policy, or Disposal of Residuals at a facility except for 1187
Disposal Facility. 1188
16.05 Termination – Delivery of material to a facility that is not properly permitted or 1189
licensed to accept material. The CITY may terminate this AGREEMENT with thirty (30) days 1190
written notice in the event the FRANCHISEE delivers material collected under this AGREEMENT 1191
to a facility that is not properly permitted or licensed to accept the material collected under this 1192
AGREEMENT. 1193
16.06 Termination Cumulative. CITY’s right to terminate this AGREEMENT is cumulative 1194
to any other rights and remedies provided by law or by this AGREEMENT. 1195
16.07 Reinstatement after Termination. Should this AGREEMENT be terminated by the 1196
CITY, the FRANCHISEE or any company acquired by, or sold to the FRANCHISEE shall not be 1197
eligible to re-apply for reinstatement to provide Collection Services until after the term of all 1198
awarded agreements have expired. 1199
ARTICLE 17. Modifications to the Agreement 1200
17.01 AGREEMENT Modifications and Changes in Law. The CITY and the 1201
FRANCHISEE understand and agree that the California Legislature has the authority to make 1202
comprehensive changes in Solid Waste Management legislation and that these and other 1203
changes in law in the future which mandate certain actions or programs for counties or 1204
municipalities may require changes or modifications in some of the terms, conditions or 1205
obligations under this AGREEMENT. The FRANCHISEE agrees that the terms and provisions 1206
of the Municipal Code, as it now exists or as it may be amended in the future, shall apply to all 1207
of the provisions of this AGREEMENT and the Service Recipients of the FRANCHISEE located 1208
within the Service Area. In the event any future Change in Law, modifications to the Municipal 1209
Code, or directed changes by the CITY materially alters the obligations of the FRANCHISEE, 1210
CITY OF ROHNERT PARK November 14, 2017
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then the affected compensation as established under this AGREEMENT shall be adjusted. 1211
Nothing contained in this AGREEMENT shall require any party to perform any act or function 1212
contrary to law. The CITY and FRANCHISEE agree to enter into good faith negotiations 1213
regarding modifications to this AGREEMENT which may be required in order to implement 1214
changes in the interest of the public welfare or due to Change in Law. When such modifications 1215
are made to this AGREEMENT, the CITY and the FRANCHISEE shall negotiate in good faith, 1216
a reasonable and appropriate compensation adjustment for any increase or decrease in the 1217
services or other obligations required of the FRANCHISEE due to any modification in the 1218
AGREEMENT under this Article. The CITY and the FRANCHISEE shall not unreasonably 1219
withhold AGREEMENT to such compensation adjustment. 1220
17.01.1 FRANCHISEE acknowledges and agrees that CITY may permit 1221
other Franchisees, contractors or companies besides FRANCHISEE to provide additional 1222
Collection Services. 1223
ARTICLE 18. Legal Representation 1224
18.01 Acknowledgement. It is acknowledged that FRANCHISEE and CITY each were, 1225
or had the opportunity to be, represented by counsel in the preparation of, and contributed 1226
equally to the terms and conditions of, this AGREEMENT and, accordingly, the rule that an 1227
agreement shall be interpreted strictly against the party preparing the same shall not apply 1228
herein due to the joint contributions of both parties. 1229
ARTICLE 19. Financial Interest 1230
19.01 Representation. FRANCHISEE warrants and represents that no elected official, 1231
officer, agent or employee of the CITY has a financial interest, directly or indirectly, in this 1232
AGREEMENT the compensation to be paid under it and, further, that no CITY employee who acts 1233
in the CITY as a “purchasing agent” as defined in the appropriate Section of California Statutes, 1234
nor any elected or appointed officer of the CITY, nor any spouse or child of such purchasing 1235
agent, employee or elected or appointed officer, is a partner, officer, director or proprietor of the 1236
FRANCHISEE and, further, that no such CITY employee, purchasing agent, CITY elected or 1237
appointed officer, or the spouse or child of any of them, alone or in combination, has a material 1238
interest in the FRANCHISEE. Material interest means direct or indirect ownership of more than 1239
five percent (5%) of the total assets or capital stock of the FRANCHISEE. 1240
ARTICLE 20. Franchisee’s Personnel 1241
20.01 Personnel Requirements. The FRANCHISEE shall employ and assign qualified 1242
personnel to perform all services set forth herein. The FRANCHISEE shall be responsible for 1243
ensuring that its employees comply with all Applicable Laws and regulations and meet all Federal, 1244
State, and local requirements related to their employment and position. 1245
20.01.1 The CITY may request the transfer of any employee of the 1246
FRANCHISEE who materially violates any provision hereof, or who is wanton, negligent, or 1247
discourteous in the performance of his duties. 1248
20.01.2 FRANCHISEE’S field operations personnel shall be required to 1249
wear a clean uniform shirt bearing the FRANCHISEE’S name. FRANCHISEE’S employees, who 1250
normally come into direct contact with the public, including drivers, shall bear some means of 1251
individual photographic identification such as a name tag or identification card. 1252
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20.01.3 Each driver of a collection vehicle shall at all times carry a valid 1253
California driver's license and all other required licenses for the type of collection vehicle that is 1254
being operated. 1255
20.01.4 Each driver of a collection vehicle shall at all times comply with all 1256
applicable state and federal laws, regulations, and requirements. 1257
20.01.5 FRANCHISEE’S employees, officers, and agents shall at no time 1258
be allowed to identify themselves or in any way represent themselves as being employees of the 1259
CITY. 1260
20.01.6 The FRANCHISEE'S name and the customer service telephone 1261
number shall be properly displayed on all collection vehicles. 1262
ARTICLE 21. Independent Franchisee 1263
21.01 In the performance of services pursuant to this AGREEMENT, FRANCHISEE shall 1264
be an independent FRANCHISEE and not an officer, agent, servant or employee of CITY. 1265
FRANCHISEE shall have exclusive control of the details of the services and work performed and 1266
over all persons performing such services and work. FRANCHISEE shall be solely responsible 1267
for the acts and omissions of its officers, agents, employees, contractors, and subcontractors, if 1268
any. Neither FRANCHISEE nor its officers, employees, agents, contractors, or subcontractors 1269
shall obtain any right to retirement benefits, Workers’ Compensation benefits, or any other 1270
benefits which accrued to CITY employees and FRANCHISEE expressly waives any claim it may 1271
have or acquire to such benefits. 1272
ARTICLE 22. Laws to Govern 1273
22.01 The law of the State of California shall govern the rights, obligations, duties, and 1274
liabilities of CITY and FRANCHISEE under this AGREEMENT and shall govern the interpretation 1275
of this AGREEMENT. 1276
ARTICLE 23. Consent to Jurisdiction 1277
23.01 The parties agree that any litigation between CITY and FRANCHISEE concerning 1278
or arising out of this AGREEMENT shall be filed and maintained exclusively in the Superior Court 1279
of Sonoma County, State of California, or in the United States District Court for the Northern 1280
District of California, as applicable pursuant to their respective jurisdiction. Each party consents 1281
to service of process in any manner authorized by California law. 1282
ARTICLE 24. Assignment 1283
24.01 No assignment of this AGREEMENT or any right occurring under this 1284
AGREEMENT shall be made in whole or in part by the FRANCHISEE without the express written 1285
consent of the CITY. The CITY shall have full discretion to approve or deny, with or without cause, 1286
any proposed or actual assignment by the FRANCHISEE. Any assignment of this AGREEMENT 1287
made by the FRANCHISEE without the express written consent of the CITY shall be null and void 1288
and shall be grounds for the CITY to declare a default of this AGREEMENT and immediately 1289
terminate this AGREEMENT by giving written notice to the FRANCHISEE, and upon the date of 1290
such notice this AGREEMENT shall be deemed immediately terminated, and upon such 1291
termination all liability of the CITY under this AGREEMENT to the FRANCHISEE shall cease, and 1292
CITY OF ROHNERT PARK November 14, 2017
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the CITY shall have the right to call the performance bond and shall be free to negotiate with other 1293
contractors, the FRANCHISEES, or any other person or company for the service which is the 1294
subject of this AGREEMENT. In the event of any assignment, the assignee shall fully assume all 1295
the liabilities of the FRANCHISEE. 1296
24.02 The use of a subcontractor to perform services under this AGREEMENT shall not 1297
constitute delegation of FRANCHISEE’S duties provided that FRANCHISEE has received prior 1298
written authorization from the City Representative to subcontract such services and the City 1299
Representative has approved a subcontractor who will perform such services. FRANCHISEE 1300
shall be responsible for directing the work of FRANCHISEE’S subcontractors and any 1301
compensation due or payable to FRANCHISEE’S subcontractor shall be the sole responsibility of 1302
FRANCHISEE. The City Representative shall have the right to require the removal of any 1303
approved subcontractor for reasonable cause. 1304
24.03 For purposes of this Article when used in reference to FRANCHISEE, 1305
"assignment" shall include, but not be limited to (i) a sale, exchange or other transfer of at least 1306
fifty-one percent (51%) of FRANCHISEE'S assets dedicated to service under this AGREEMENT 1307
to a third party; (ii) a sale, exchange or other transfer of outstanding common stock of 1308
FRANCHISEE to a third party provided said sale, exchange or transfer results in a change of 1309
control of FRANCHISEE (with control being defined as ownership of more than fifty percent (50%) 1310
of FRANCHISEE’S voting securities); (iii) any dissolution, reorganization, consolidation, merger, 1311
re-capitalization, stock issuance or re-issuance, voting trust, pooling AGREEMENT, escrow 1312
arrangement, liquidation, subcontracting or lease-back payments, or other transaction which 1313
results in a change of control of FRANCHISEE; (iv) any assignment by operation of law, including 1314
insolvency or bankruptcy, making assignment for the benefit of creditors, writ of attachment for 1315
an execution being levied against this AGREEMENT, appointment of a receiver taking possession 1316
of FRANCHISEE'S property, or transfer occurring in the event of a probate proceeding; and (v) 1317
any combination of the foregoing (whether or not in related or contemporaneous transactions) 1318
which has the effect of any such transfer or change of control of FRANCHISEE. 1319
24.04 FRANCHISEE acknowledges that this AGREEMENT involves rendering a vital 1320
service to CITY’s residents and businesses, and that CITY has selected FRANCHISEE to perform 1321
the services specified herein based on (i) FRANCHISEE’S experience, skill and reputation for 1322
conducting and management of operations in a safe, effective, and lawful fashion, at all times in 1323
keeping with applicable environmental laws, regulations and best management practices as 1324
governed by Federal, State, and local governments, and (ii) FRANCHISEE'S financial resources 1325
to maintain the required equipment and to support its indemnity obligations to CITY under this 1326
AGREEMENT. CITY has relied on each of these factors, among others, in choosing 1327
FRANCHISEE to perform the services to be rendered by FRANCHISEE under this AGREEMENT. 1328
ARTICLE 25. Compliance with Laws 1329
25.01 In the performance of this AGREEMENT, FRANCHISEE shall comply with all 1330
Applicable Laws, regulations, ordinances, and codes of the Federal, State, and local 1331
governments, including without limitation the Municipal Code of the City of Rohnert Park. 1332
25.02 CITY shall provide written notice to FRANCHISEE of any planned amendment to 1333
the Municipal Code that would substantially affect the performance of FRANCHISEE’S services 1334
CITY OF ROHNERT PARK November 14, 2017
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pursuant to this AGREEMENT. Such notice shall be provided at least thirty (30) calendar days 1335
prior to the City Council’s approval of such an amendment. 1336
ARTICLE 26. Permits and Licenses 1337
26.01 FRANCHISEE shall obtain, at its own expense, all permits and licenses required 1338
by law or ordinance and maintain same in full force and effect throughout the term of this 1339
AGREEMENT. FRANCHISEE shall provide proof of such permits, licenses, or approvals and shall 1340
demonstrate compliance with the terms and conditions of such permits, licenses and approvals 1341
upon the request of the City Representative. 1342
26.02 FRANCHISEE shall ensure that all facilities selected by the FRANCHISEE obtain, 1343
at their own expense, all permits and licenses required by law or ordinance and maintain same in 1344
full force and effect throughout the term of this AGREEMENT. FRANCHISEE shall ensure that 1345
facilities used by the FRANCHISEE provide proof of such permits, licenses, or approvals and 1346
shall demonstrate compliance with the terms and conditions of such permits, licenses, and 1347
approvals upon the request of the City Representative. 1348
ARTICLE 27. Ownership of Written Materials 1349
27.01 All reports, documents, brochures, public education materials, and other written, 1350
printed, electronic or photographic materials developed by FRANCHISEE that are expressly 1351
required by this AGREEMENT or produced by FRANCHISEE at the request of the CITY for use 1352
under this AGREEMENT, whether developed directly or indirectly by CITY or FRANCHISEE shall 1353
be and shall remain the property of CITY without limitation or restrictions on the use of such 1354
materials by CITY. FRANCHISEE shall not use such materials in connection with any project not 1355
connected with this AGREEMENT without the prior written consent of the City Representative. 1356
This Article 28 does not apply to ideas or concepts described in such materials and does not apply 1357
to the format of such materials. 1358
ARTICLE 28. Waiver 1359
28.01 Waiver by CITY or FRANCHISEE of any breach for violation of any term covenant 1360
or condition of this AGREEMENT shall not be deemed to be a waiver of any other term, covenant 1361
or condition or any subsequent breach or violation of the same or of any other term, covenant, or 1362
condition. The subsequent acceptance by CITY of any fee, tax, or any other monies which may 1363
CITY OF ROHNERT PARK November 14, 2017
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become due from FRANCHISEE to CITY shall not be deemed to be a waiver by CITY of any 1364
breach for violation of any term, covenant, or condition of this AGREEMENT. 1365
ARTICLE 29. Prohibition Against Gifts 1366
29.01 FRANCHISEE represents that FRANCHISEE is familiar with CITY’s prohibition 1367
against the acceptance of any Gift by a CITY officer or designated employee. FRANCHISEE shall 1368
not offer any CITY officer or designated employee any Gifts prohibited by the CITY. 1369
ARTICLE 30. Point of Contact 1370
30.01 The day-to-day dealings between the FRANCHISEE and the CITY shall be 1371
between the FRANCHISEE and the City Representative. 1372
ARTICLE 31. Conflict of Interest 1373
31.01 FRANCHISEE shall comply with CITY requirements for conflict of interest and will 1374
file all required disclosure statements. 1375
ARTICLE 32. Notices 1376
32.01 Except as provided herein, whenever either party desires to give notice to the 1377
other, it must be given by written notice addressed to the party for whom it is intended, at the 1378
place last specified and to the place for giving of notice in compliance with the provisions of this 1379
paragraph. For the present, the parties designate the following as the respective persons and 1380
places for giving of notice: 1381
As to the CITY: 1382
Don Schwartz 1383
Assistant City Manager 1384
City of Rohnert Park 1385
Rohnert Park City Hall 1386
130 Avram Avenue 1387
Rohnert Park, CA 94928 1388
Phone: (707) 588-2200 1389
Email: dschwartz@rpcity.org 1390
1391
CITY OF ROHNERT PARK November 14, 2017
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As to the FRANCHISEE: 1392
Name ____________________ 1393
D.B.A (if applicable) ____________________ 1394
Title ____________________ 1395
Company ____________________ 1396
Address ____________________ 1397
TOWN, State, Zip Code ____________________ 1398
Phone ____________________ 1399
Fax: ____________________ 1400
E-Mail: ____________________ 1401
1402
32.02 Notices shall be effective when received at the address as specified above. 1403
Changes in the respective address to which such notice is to be directed may be made by written 1404
notice. 1405
32.03 Notice by CITY to FRANCHISEE of a collection or other Service Recipient problem 1406
or complaint may be given to FRANCHISEE orally by telephone at FRANCHISEE’S local office 1407
with confirmation sent as required above by the end of the Work Day. 1408
ARTICLE 33. Franchisee’s Records 1409
33.01 FRANCHISEE shall maintain any and all letters, books of account, invoices, 1410
vouchers, canceled checks, and other records or documents evidencing or relating to charges for 1411
services or expenditures and disbursements charged to Service Recipients for a minimum period 1412
of five (5) years, or for any longer period required by law, from the date of final payment to 1413
FRANCHISEE pursuant to this AGREEMENT. 1414
33.02 FRANCHISEE shall maintain all documents and records which demonstrate 1415
performance under this AGREEMENT for a minimum period of five (5) years, or for any longer 1416
period required by law, from the date of termination or completion of this AGREEMENT. 1417
33.03 Any records or documents required to be maintained pursuant to this 1418
AGREEMENT shall be made available for inspection or audit, at any time during regular business 1419
hours, upon written request by the City Representative, the City Attorney, City Auditor, City 1420
Manager, or a designated representative of any of these officers. Copies of such documents shall 1421
be provided to CITY for inspection at the CITY offices when it is practical to do so. Otherwise, 1422
unless an alternative site is mutually agreed upon, the records shall be available at 1423
FRANCHISEE’S address indicated for receipt of notices in this AGREEMENT. 1424
33.04 Where CITY has reason to believe that such records or documents may be lost or 1425
discarded due to the dissolution, disbandment or termination of FRANCHISEE’S business, CITY 1426
may, by written request or demand of any of the above named officers, require that custody of 1427
the records be given to CITY and that the records and documents be maintained in City Hall. 1428
Access to such records and documents shall be granted to any party authorized by 1429
FRANCHISEE, FRANCHISEE’S representatives, or FRANCHISEE’S successor-in-interest. 1430
ARTICLE 34. Entire Agreement 1431
34.01 This AGREEMENT and the Exhibits attached hereto constitute the entire 1432
AGREEMENT and understanding between the parties hereto, and it shall not be considered 1433
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modified, altered, changed, or amended in any respect unless in writing and signed by the parties 1434
hereto. 1435
ARTICLE 35. Severability 1436
35.01 If any provision of this AGREEMENT or the application of it to any person or 1437
situation shall to any extent be held invalid or unenforceable, the remainder of this AGREEMENT 1438
and the application of such provisions to persons or situations other than those as to which it shall 1439
have been held invalid or unenforceable, shall not be affected, shall continue in full force and 1440
effect, and shall be enforced to the fullest extent permitted by law. 1441
ARTICLE 36. Right to Require Performance 1442
36.01 The failure of the CITY at any time to require performance by the FRANCHISEE 1443
of any provision hereof shall in no way affect the right of the CITY thereafter to enforce same. Nor 1444
shall waiver by the CITY of any breach of any provision hereof be taken or held to be a waiver of 1445
any succeeding breach of such provision or as a waiver of any provision itself. 1446
ARTICLE 37. All Prior Agreements Superseded 1447
37.01 This document incorporates and includes all prior negotiations, correspondence, 1448
conversations, agreements, contracts and understandings applicable to the matters contained in 1449
this AGREEMENT and the parties agree that there are no commitments, agreements, contracts 1450
or understandings concerning the subject matter of this AGREEMENT that are not contained in 1451
this document. Accordingly, it is agreed that no deviation from the terms of this AGREEMENT 1452
shall be predicated upon any prior representations, agreements, or contracts, whether oral or 1453
written. 1454
ARTICLE 38. Headings 1455
38.01 Headings in this document are for convenience of reference only and are not to be 1456
considered in any interpretation of this AGREEMENT. 1457
ARTICLE 39. Representations and Warranties of 1458
FRANCHISEE 1459
The FRANCHISEE, by acceptance of this AGREEMENT, represents and warrants the 1460
conditions presented in this Article 39. 1461
39.01 Corporate Status. The FRANCHISEE is a {corporation} duly organized, validly 1462
existing and in good standing under the laws of the State of California (“State”). It is qualified to 1463
transact business in the State and has the power to own its properties and to carry on its business 1464
as now owned and operated and as required by this AGREEMENT. 1465
39.02 Corporate Authorization. FRANCHISEE (via its Board of Directors, 1466
shareholders, and/or members, as applicable) has taken all necessary action required by law, 1467
and under its articles of incorporation, operating agreement, and/or its bylaws, to authorize the 1468
execution of the AGREEMENT. The Person signing this AGREEMENT on behalf of 1469
CITY OF ROHNERT PARK November 14, 2017
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FRANCHISEE represents and warrants that they have the authority to do so. This AGREEMENT 1470
constitutes the legal, valid, and binding obligation of the FRANCHISEE. 1471
39.03 AGREEMENT Will Not Cause Breach. To the best of FRANCHISEE’S 1472
knowledge after responsible investigation, the execution or delivery of this AGREEMENT or the 1473
performance by FRANCHISEE of its obligations hereunder does not conflict with, violate, or result 1474
in a beach: (i) of any law or governmental regulation applicable to FRANCHISEE; or (ii) any term 1475
or condition of any judgment, order, decree, of any court, administrative agency, or other 1476
governmental authority, or any AGREEMENT or instrument to which FRANCHISEE is a party or 1477
by which FRANCHISEE or any of its properties or assets are bound, or constitutes a default 1478
hereunder. 1479
39.04 No Litigation. To the best of FRANCHISEE’S knowledge after responsible 1480
investigation, there is no action, suite, proceeding or investigation, at law or in equity, before or 1481
by any court or governmental authority, commission, board, agency or instrumentality decided, 1482
pending or threatened against FRANCHISEE wherein an unfavorable decision, ruling or finding, 1483
in any single case or in the aggregate would: 1484
39.04.1 Materially adversely affect the performance by FRANCHISEE of its 1485
obligations hereunder; 1486
39.04.2 Adversely affect the validity or enforceability of this AGREEMENT; 1487
or 1488
39.04.3 Have a material adverse effect on the financial conditions of 1489
FRANCHISEE, or any surety or entity guaranteeing FRANCHISEE’S performance under this 1490
AGREEMENT. 1491
39.05 No Adverse Judicial Decisions. To the best of FRANCHISEE’S knowledge 1492
after responsible investigation, there is no judicial decision that would prohibit this AGREEMENT 1493
or subject this AGREEMENT to legal challenge. 1494
39.06 No Legal Prohibition. To the best of FRANCHISEE’S knowledge after reasonable 1495
investigation, there is no Applicable Law in effect on the date FRANCHISEE signed this 1496
AGREEMENT that would prohibit the FRANCHISEE’S performance of its obligations under this 1497
AGREEMENT and the transactions contemplated hereby. 1498
39.07 FRANCHISEEs Statements. The FRANCHISEEs proposal and other 1499
supplemental information submitted to the CITY, which the CITY has relied on in awarding and 1500
entering this AGREEMENT, do not: (i) contain any untrue statement of a material fact, or (ii) omit 1501
to state a material fact that is necessary in order to make the statements made, in light of the 1502
circumstances in which they were made, not misleading. 1503
39.08 FRANCHISEE’S Investigation. FRANCHISEE has made an independent 1504
investigation (satisfactory to it) of the conditions and circumstances surrounding the 1505
AGREEMENT and the work to be performed hereunder. FRANCHISEE has taken such matters 1506
into consideration in entering this AGREEMENT to provide services in exchange for the 1507
compensation provided for under the terms of this AGREEMENT. 1508
39.09 Ability to Perform. FRANCHISEE possesses the business, professional, and 1509
technical expertise to Collect, Transport, and Process the Construction and Demolition Debris 1510
CITY OF ROHNERT PARK November 14, 2017
Page 41 of 42
material generated in the CITY. FRANCHISEE possesses the ability to secure equipment, 1511
facility(ies), and employee resources required to perform its obligations under this AGREEMENT. 1512
39.10 Voluntary Use of Disposal Location. The FRANCHISEE, without constraint and as 1513
a free-market business decision in accepting this AGREEMENT, agrees to use the Disposal 1514
Facility for the purposes of disposing of all Residuals Collected in the CITY. Such decision by 1515
FRANCHISEE in no way constitutes a restraint of trade notwithstanding any Change in Law 1516
regarding flow control limitations or any definition thereof. 1517
ARTICLE 40. Effective Date 1518
This AGREEMENT shall become effective as of the Effective Date, having been properly 1519
executed by the CITY and the FRANCHISEE and the FRANCHISEE shall begin Non-Exclusive 1520
Temporary Construction and Demolition Debris Collection Service, as covered herein, as of 1521
January 1, 2018. 1522
IN WITNESS WHEREOF, the CITY and the FRANCHISEE have executed this AGREEMENT on 1523
the day and year first written above. 1524
1525
CITY OF ROHNERT PARK November 14, 2017
Page 42 of 42
1526
CITY OF ROHNERT PARK Company Name 1527
1528
_____________________ ________ 1529
1530
1531
____________________ _________ _____________________ ________ 1532
Darrin Jenkins Company Representative/Title 1533
City Manager 1534
1535
Rohnert Park Business 1536
License No. __________ 1537
____________________ _________ 1538
Don Schwartz 1539
Assistant City Manager 1540
1541
1542
1543
1544
1545
The foregoing AGREEMENT has been reviewed and approval is recommended: 1546
1547
1548
1549
Resolution No. 2017 - ____________________ 1550
Approved by City Council 1551
1552
1553
1554
Approved as to Form: 1555
1556
______________________ _________ 1557
(Name) Date 1558
City Attorney 1559
1560
1561