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CITYOFRIDGECREST
REQUESTFORPROPOSALS FOR SOLIDWASTEANDRECYCLABLEMATERIALSCOLLECTIONAND DIVERSIONPROGRAMS
Proposal Information: The City ofRidgecrest(City)issolicitingproposalsfromqualifiedcompaniesto providethefollowingservicestoitsresidentsandbusinessesforaperiodofsevenyears,withanoption fortheCitytoextendforuptoanadditionalfiveyears,for: 1. CollectionofsolidwastefromresidentialandcommercialaccountsandCityfacilities. 2. CollectionofrecyclablematerialsfromresidentialandcommercialaccountsandCityfacilities. 3. ProvisionofothersolidwasteanddiversionservicestotheCity,itsresidents,andbusinesses. Copies of this Request for Proposals (RFP) package maybeobtainedviadownloadoremail.Address requestsbytelephoneoremailtotheCitysproposalcontact: RobHilton HF&HConsultants 201NorthCivicDrive,Suite230 WalnutCreek,CA94596 (925)9776959 In addition, the Request for Proposals package can be obtained from HF&Hs website, http://www.HFHConsultants.com/RidgecrestRFP/index.html. Interested Parties: The City requests that any interested parties register with the Citys consultant usingthecontactinformationabove.Registeringasaninterestedpartywillensurethatyoureceiveany clarifications, addenda, or other information related to this RFP via email immediately upon release. SuchinformationwillalsobepostedtotheRFPdownloadwebsitelistedabove. Proposer Requirements: The City requests that proposers submit all questions and requests for information in writing (mail, fax, or email with confirmation request) to the Citys consultant and refrain from contacting other City employees or City Council members. Therefore, any questions, requestsforclarification,orrequestsforadditionalinformationregardingtheRFPshouldbesubmitted inwriting(viaU.S.PostalService,emailorfax,withconfirmationrequest)toRobHiltonattheaddress, email,orfaxnumberlistedaboveonorbeforeAugust1,2011.
PreProposalMeeting:TheCitywillbeholdingapreproposalmeetingonJuly11,2011at3:00p.m.: CityofRidgecrest 100WCaliforniaAvenue Ridgecrest,CA93555 (760)4995001 Allpartiesconsideringsubmittingproposalsarestronglyencouragedtoattendthismeeting. ProposalSubmittal:Allproposalsmustbereceivedby3:00p.m.onAugust1,2011.Proposalsreceived after this time and date may be rejected at the sole discretion of the City. Postmarks will not be acceptedasproofofreceipt.Proposersshallmailorhanddeliverproposalpackagesto: CityClerk CityofRidgecrest 100WCaliforniaAvenue Ridgecrest,CA93555
TABLE OF CONTENTS
SectionIOverview......................................................................................................................................1 SectionIIDescriptionofCurrentServicesandConditions.........................................................................5 SectionIIIScopeofRequestedServices .....................................................................................................7 . SectionIVProposalSubmittalProcess........................................................................................................9 SectionVProposalRequirements ............................................................................................................12 . SectionVIProposalEvaluationCriteria....................................................................................................21 LISTOFTABLES Table1RFPSchedule*...............................................................................................................................3 Table2CityPopulation&HousingCharacteristics....................................................................................5 Table3IWVWDWaterCustomers.............................................................................................................6 Table4CommercialSolidWaste&RecyclingRatesApprovedinSeptember2009..................................6 ATTACHMENTS Attachment1 DraftFranchiseAgreement Attachment2 ProposalForms Attachment3 AntiCollusionAffidavit Attachment4 SecretarysCertificate
CityofRidgecrest RequestforProposals
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Section I - Overview
OverviewoftheRequestforProposals
The City of Ridgecrest (City) is requesting proposals to provide solid waste and recyclable materials collectionanddiversionservicestoresidentsandbusinesseswithintheCityforaperiodofsevenyears, commencingonJanuary1,2012withuptofiveyearsinoptionalcontractextensions.Forpurposesof thisRFP,theCitymeanstheincorporatedareaoftheCityofRidgecrest.Theselectedproposerwillbe responsible for providing all of the required services at the proposed rates. The requested collection services are summarized in Section III and described in detail in Article 4 of the Draft Franchise Agreement (Attachment 1). Each proposer is required to review the Draft Franchise Agreement as it definesthespecificcontractualrequirementsfortheservicestobeprovided.Intheeventofaconflict between the Draft Franchise Agreement and this RFP, the proposer should assume that the Draft FranchiseAgreementcontrols.
CitysObjectives
The Citys primary objective for this RFP is to procure an effective and efficient integrated waste management service provider for the residents and businesses in the City, including solid waste and recyclingcollectionservices.ThroughthisRFP,theCityseeksto: MinimizethecostofsolidwasteandrecyclingservicestotheCitysresidentsandbusinessesby reducingratesfromcurrentlevels. Achieve and maintain compliance with state regulations regarding integrated waste managementanddiversion,includingbutnotlimitedtoAB939; Ensure reliable, courteous, and high quality services are provided to the Citys residents and businesses;and,
Background
Ridgecrest is a remote community with robust modern amenities and a constituency that is conservative and highly educated. Historically residents and businesses have enrolled in voluntary curbsidewastehaulingservicewiththeCitysfranchisedwastehauler.FollowinganIntegratedWaste Management (CalRecycle) finding of inadequate AB 939 diversion levels, the City was fined and subsequently adopted mandatory curbside trash and recycling ordinances as part of the Local AssistancePlan(LAP)inresponsetoacomplianceorder.Thiswasasourceoffrustrationforresidents whowereuncomfortablewiththerapidchangesandaccompanyingrateincreasesassociatedwiththe process.TheCitylaternegotiatedachangetotheLAPallowingresidentstovoluntarilyoptoutofthe mandatoryresidentialserviceprovisions.Thisactionwasthesourceofdisputesandlegalactionswith thecurrenthauler.Thosedisputeshavebeenlargelyresolvedandthelegalproceedingshaveverified theexpirationdateofthecurrentfranchiseasSeptember2,2011.
CityofRidgecrest RequestforProposals
Manyresidentsandbusinessownershaveenduredunintendedconsequencesthroughoutthisprocess and have heightened concerns about the future of waste and recycling in Ridgecrest. The process of enteringintoanewfranchiseagreementpresentsarareopportunitytosolvemanyoftheissuesthat led to conflict over the last few years. The successful hauler will need to communicate with and be responsivetotheneedsofcitizensandstateregulatoryagencies. TheCityrecentlyimplementedapublicoutreachcampaigntosolicitinputfromcitizenswithrespectto the new franchise agreement. In addition to responsiveness and communication, residents and businesses were also concerned about other key items including: rate decrease (added emphasis for seniors), bin size options to reflect limited waste production of particular demographics, ability to consolidate bins in multifamily or strip mall configurations, frequency of recycling pick up, vacation holds(withinspecifiedparameters),billingbyfranchisee,optionalservice,educationaboutoptionsand recycling (what is recyclable, etc.), hazardous materials pick up (medical needles, etc.), periodic bulky itempickup,andcustomerincentives.TheCitywelcomesvendorinputonhowbesttoaddressthese issues.
CitysRights
TheCouncilreservestherighttotakeanyandallactionsitdeemsinitsinterestrelatedtothisRFP.The Council may reject all proposals, and may thereafter instruct the City Manager to take such further actionastheCouncilshalldirectincluding,butnotlimitedto,engaginginnegotiationswithoneormore firms, persons or entities, or issuing a revised request for proposals. The Council may also, at its discretion,waiveanyminorirregularitiescontainedinaproposal. NotwithstandinganyotherprovisionoftheRidgecrestMunicipalCode,theCouncilmay,uponfinding thatitisinthebestinterestoftheCityanduponavoteoftheCouncil,waivethecompetitiveprocess andmayinstructtheCityManagertotakesuchfurtheractionastheCouncilshalldirectincluding,but not limited to, requesting best and final offers, engaging in negotiations with one or more firms, personsorentities,orengaginginsuchotherprocessastheCouncilmayspecify.
GeneralRFPAgreements
ThisRFPshallnottobeconstruedbyanypartyasanagreementofanykindbetweentheCityandsuch party.ThisRFPdoesnotobligatetheCitytoacceptanyproposal,negotiatewithanyproposer,award anagreement,orproceedwiththedevelopmentofanyprojectorservicedescribedinresponsetothis RFP.TheCityhasnoobligationtocompensateproposer(s)fortheexpenseofpreparingtheproposal(s) andparticipatinginthisprocurementprocess. ProposalsmustcomplyfullywiththerequirementsdetailedinthisRFP,includingallattachmentsand addendatotheRFP.Requiredsupportingdocumentationmustbeincludedandmustbeappropriately identified.TheCitymayreject:incompleteproposals;proposalscontainingerrors,inconsistencies,false, inaccurateormisleadinginformation;proposalsnotsubmittedwiththeproperquantityofcopies;or, proposalswithotherprocessorcontenterrorsordeficiencies. Submission of a proposal shall constitute acknowledgment and acceptance of all the terms and conditionscontainedinthisRFPandtheDraftFranchiseAgreement,asappropriate,unlessanexception
CityofRidgecrest RequestforProposals
to specific terms and/or conditions is expressed in writing in the proposal. Submittal of a proposal signifiesproposerscommitmenttoprovidetheproposedservicesifselected.Proposalsrespondingto thisRFPmaynotbealteredaftersubmittal,exceptinresponsetoCitysrequestforclarification,andare firmforaperiodof180daysfromthedatetheproposalissubmitted. The City shall have the right (but not the obligation) to perform, and each proposer must agree to cooperate with, an investigation and review of each proposer's ability to perform the work required. Suchcooperationbyproposersshallapplynotonlytotheverificationoftheproposer'scapabilityand experienceintheprovisionofservicesbutalsototheprovisionofanyothercomponentofworkwhich mayberequiredunderthisprocurement.
ProcessandSchedule
TheproposalsubmittalprocessisdescribedinSectionIV.Thekeyactivitiesandcompletiondatesare providedinTable1below. Table1RFPSchedule* ACTIVITY CityIssuesRFP CityHoldsPreProposalMeeting CityReceivesFinalWrittenRFPandDraftFranchiseAgreement Questions/CommentsfromProposers July26,2011 CityIssuesAddendumtoRFPandDraftFranchiseAgreement August1,2011 CompaniesSubmitProposals August29September2,2011 ProposerInterviewsConducted(ifnecessary) September23,2011 CityCompletesProposalEvaluation October1,2011 CityCouncilSelectsContractorforNegotiation October21,2011 CityCompletesNegotiationswithContractor November1,2011 CityCouncilApprovesSelectionofContractorand ContractorReceivesFormalAuthorizationtoProceed NovemberandDecember,2011 Implementation,CustomerEducation,andOutreach January1,2012 ContractorCommencesServices *SubjecttochangebyCity. COMPLETIONDATE July1,2011 July11,2011 July22,2011
FranchiseAgreementComments
Aspreviouslynoted,theDraftFranchiseAgreementisprovidedasAttachment1tothisRFP.Proposers are to clearly note any exceptions to the Draft Franchise Agreement as part of their proposals, as specifiedinItem4(ExceptionstoAgreements)ofSectionVofthisRFP.TheCitywillnotconsiderany changes to the Draft Franchise Agreement during negotiation of a final agreement that are not identifiedinthecompanysproposal.
CityofRidgecrest RequestforProposals
Subcontractors
The City expects that the services detailed herein and in the Draft Franchise Agreement will be substantiallyperformedbytheprimeproposer,particularlythoseservicesthatinvolvecontactwiththe public.TheCityiswillingtoentertainproposalsincludingsubcontractorswhowillperformsomeorall of the following services, to the extent that the subcontracted services come at a lower cost than if performedbytheprimaryproposer: Containerdistribution; Processingofrecyclablematerials;and, Publiceducationandoutreachservices.
Proposalswhichanticipatetheuseofsubcontractedservicesmustincludeallinformationrequestedof the proposer for each subcontractor (applicable to the services they will provide) as well as a clear descriptionoftheservicestobeperformedbyeachsubcontractor.Proposersdonotneedtoidentify supplyvendorsorothervendorswhoseroleisnotprimarytotheservicesbeingprovided.
CityofRidgecrest RequestforProposals
DescriptionofCurrentServices
TheCityscurrentfranchiseeprovidesweeklysolidwasteandrecyclingcollectionservicestoresidential customersthroughouttheCity.Inaddition,businesscustomersthroughouttheCityreceiveservicein cartsorbinsuptosixdaysperweekforsolidwasteanduptoonedayperweekforrecycling.Dueto the arid climate and minimal vegetation, the City does not have a green waste collection program. Residents and businesses who generate green waste materials can selfhaul those materials to the RidgecrestLandfillfordiversion. SolidwastecollectedintheCityistakentotheKernCountyRidgecrestLandfillfordisposal.TheCityis currently working with the County to gather data regarding the total tonnage delivered and bin fees paid.Assoonasthatdataisavailable,theCitywillreleaseittoallinterestedparties. RecyclablematerialscollectedintheCityaretakentotheTehachapiMaterialsRecoveryFacility(MRF). The total volume of material processed at the Tehachapi MRF is not known at this time. If that information becomes available, the City will share it with all interested parties as promptly as is practical.
DescriptionofServiceArea
Inordertofurtherassistproposerswithanunderstandingofthedemandsofthearea,somepopulation andhousingcharacteristicsareprovidedinTable2. Table2CityPopulation&HousingCharacteristics Total Population 27,768 TheIndianWellsValleyWaterDistrictprovidedtheCitywiththeinformationinTable3regardingthe numberofcustomers,bycustomerclass,thataresubscribedtowaterservice.WhiletheIndianWells ValleyWaterDistrictencompassesanarealargerthantheCity,theCitypresentsthisinformationasan additional data point for potential proposers to use in estimating the service demands of the community. Total HousingUnits 11,972 Occupied Units 10,852 Vacant Units 1,120 Vacancy Rate 9.36%
CityofRidgecrest RequestforProposals
Table3IWVWDWaterCustomers SingleFamily 11,037 As a final data point for consideration by proposers, the City received unaudited customer account information from the current franchisee in 2009thatidentified9,400residentialand400commercial accounts. Additional, more recent information regardingthenumberofaccountsandlevelsofserviceprovided currentlywasnotmadeavailablebythecurrentfranchisee;therefore,eachproposershouldundertake theirownduediligenceefforttodeterminethequantityandnatureofserviceneededintheCity. MultiFamily 686 Commercial 821
RateInformation
TheCityanticipatesthattheselectedproposerwillprovideserviceatratessignificantlylowerthanthose currently in place. The current residential rate for trash service only is $18.11. The current residential ratefortrashandrecyclingserviceis$30.52.Commercialrateswereapprovedin2009forthecurrent franchiseewhichincludedprovisionofbothsolidwasteandrecyclingservice.Thoseratesarepresented inTable4below. Table4CommercialSolidWaste&RecyclingRatesApprovedinSeptember2009 ServiceLevel (1)96Gal,1x/wk (2)96Gal,1x/wk 3YD1x/wk 3YD2x/wk 3YD3x/wk 3YD4x/wk 3YD5x/wk 3YD6x/wk Rate $40.00 $50.47 $176.17 $282.88 $389.75 $496.31 $603.21 $710.09
CityofRidgecrest RequestforProposals
ServicestoBeProvided
The services to be provided by the Contractor are detailed in Section 4 of the Draft Franchise Agreement and the key services are summarized below. Proposers should review Section 4 of the Agreementforthedetailsofhowprogramsandservicesaretobeprovided. 1. CollectionserviceswithintheincorporatedareasoftheCityshallbeprovidedexclusivelybythe ContractorselectedexceptasspecifiedintheDraftFranchiseAgreement.Providingcollection servicesmeansprovidingsolidwasteandrecyclablematerialscollectionservicetoanyresident or business in the incorporated area of the City requesting such service. The City is in the processofrevisingitsmunicipalcodetorequireserviceforalloccupiedcommercialpremises. 2. Contractorshallprovideaneffectiveandefficientintegratedwastemanagementsystemforthe City, including solid waste and recycling collection and other diversion services for residential andcommercialaccounts(includingCityfacilities)subscribedtothecontractorsservices. 3. Contractor shall provide a bulky waste collection program to residential and commercial customersonanoncallbasisuptothreetimesperyearatnoadditionalchargetocustomers. Contractorshallofferadditionalbulkywastecollections(beyondtheinitialthreeperyear)atan additionalchargetocustomersrequestingsuchservice. 4. Contractorshallmakeavailableandprovideatnoadditionalcharge,cartandbincontainersin an appropriate size and collection frequency to any residential or commercial customer subscribingtoContractorsservice. 5. Providing all program elements required by the pending State regulations for mandatory commercial recycling under the AB 32 scoping plan including, at a minimum, the provision of collectionservices,education,outreach,monitoring,andreportingforallcommercialandmulti familypropertiesincludedinthatregulationifandwhenitisadopted.
CityofRidgecrest RequestforProposals
6. ContractorshallbillservicerecipientsdirectlyforservicesbasedontheCityapprovedratesand remittheappropriatefeestotheCityandpaymentsforuseoftheKernCountylandfillsystem totheCountyasprescribedbytheKernCountyWasteManagementDepartment. 7. ContractorshallprovideregularreportingonitsactivitieswithintheCitytotheCityscontract managerasspecifiedinExhibitDtotheDraftFranchiseAgreement. 8. Contractor shall provide all public education and outreach services required to adequately inform residents and businesses about such topics as: the appropriate materials to place for recycling as well as those materials which are prohibited; the materials which are prohibited fromdisposalandappropriatedisposaloptionsforthosematerials;theimportanceandvalueof wastereduction,reuse,recyclingandcomposting;and,thecostsavingopportunitiesresulting from recycling at businesses. Contractors proposal shall include a detailed public education and outreach plan describing how Contractor intends to implement a public education and outreachprogramintheCity.
ProposalEnhancements,Innovation,andCostSavingApproaches
The City recognizes that the companies that propose on this RFP have expertise in the operation of integrated waste management systems and the City wishes to benefit from expertise as much as is practical and beneficial to the Citys residents and businesses. Proposers are encouraged to propose modificationstothesystemdescribedinthisRFPandDraftFranchiseAgreementifthosemodifications willresultinanintegratedwastemanagementsystemthatmoreeffectivelymeetstheCitysobjectives. Suchproposalenhancementsshouldbeproposedinadditionandnotasareplacementtothestandard specificationscontainedinthisRFPandDraftFranchiseAgreement.
ReimbursementofProcurementCosts
The selected proposer(s) will reimburse the City procurementrelated expenses (including, but not limited to, consulting fees and legal fees). The procurementrelated reimbursement payment will be made by the selected proposer(s) no later than the execution date of the Agreement. The procurementrelatedreimbursementexpenseis$140,000.
CityofRidgecrest RequestforProposals
StepOneWrittenQuestions
TheCityrequeststhatproposerssubmitallquestionsandrequestsforinformationinwriting(mail,fax, or email with confirmation request) to the Citys proposal contact and refrain from contacting other CityemployeesorCityCouncilmembers.Anyproposerwhoisdeterminedtohavecontactedamember of the City Council regarding this RFP may be disqualified. Therefore, any questions, requests for clarification,orrequestsforadditionalinformationregardingthisRFPortheDraftFranchiseAgreement shouldbesubmittedinwriting(preferablyviaemail)toRobHiltonattheaddresslistedbelowonor beforeJuly22,2011. RobHilton HF&HConsultants 201NorthCivicDrive,Suite230 WalnutCreek,CA94596 (925)9776959 rchilton@hfhconsultants.com
StepTwoPreProposalMeeting
A preproposal meeting will be held at the Ridgecrest City offices on July 11, 2011 at 3:00 p.m. ProposersmaysubmitwrittenquestionsrelatedtotheRFPandDraftFranchiseAgreementpriortothe preproposalmeetingviaemailtorchilton@hfhconsultants.comasdescribedinstepone.Inaddition, oralandwrittenquestionswillbeacceptedatthepreproposalmeeting.Asappropriate,preliminary oralresponseswillbeprovidedatthatmeeting.AdditionalquestionsmaybesubmitteduptoJuly22, 2011.TheCitywillissueanaddendumtotheRFPbyJuly26,2011respondinginwritingtoallquestions received. In the event of any inconsistencies between oral and written responses to questions, the writtenresponsesshallbeusedforthepurposesofpreparingproposals.TheCitymay,atitsdiscretion, issuearevisedDraftFranchiseAgreementatthattime.
StepThreeProposalSubmittal
Proposersshallsubmitfivebound,doublesidedcopiesoftheircompleteproposal.Proposalsmustbe printed on a minimum of 30% (100% encouraged) postconsumer recycled content paper and bound copies must be doublesided. In addition, a computer disk shall be submitted and shall contain an electronic copy of the proposal, all completed proposal forms in Microsoft Excel format (i.e., those provided in Attachment 2 of the RFP), and a Microsoft Word redline/strikeout version of the Draft FranchiseAgreement.
CityofRidgecrest RequestforProposals
StepFourClarificationofProposalInformation
Proposersmaybeaskedtoclarifyinformationthroughwriting,interviews,orsitevisitswithCitystaffor itsconsultant.TheCityreservestherighttoincorporateanywrittenclarificationsorothersupporting documentintothefranchiseagreementasamaterialelementoftheagreement.
StepFiveContractorSelection
The City anticipates reviewing the proposals received and recommending to the City Council the selection of one or more proposers for negotiation of a final franchise agreement. That recommendationshallnotbebindingontheCityCouncil.
StepSixNegotiations
OncetheCityCouncildirectsstafftonegotiateafinalfranchiseagreementwithoneormoreproposers, Citystaffandtheirconsultantshallschedulemeetingswiththeselectedfirms.Timeisoftheessencein theprocurementoftheseservices,therefore,thenegotiationswillbelimitedtothoseitemsidentified in the companys proposal as exceptions to the franchise agreement. Each proposer is required to submit a redline/strikeout version of the franchise agreement noting any deletions of franchise languageorrequirementsaswellasallreplacementlanguageornewlanguage.TheCitywillnotdiscuss anyotherchangestothedraftfranchiseagreementthatarenotclearlypresentedintheproposal.
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CityofRidgecrest RequestforProposals
The City expects that the selected proposer(s) will make themselves available promptly to start the negotiationsprocessandwillnegotiateexpeditiouslyandingoodfaithtoensureapromptresolutionto theprocess.IntheeventthattheCitydeterminesthataselectedproposerisnotcooperatingwiththis process, they may recommend to the City Council that an additional or replacement proposer is selectedforsuchnegotiation. At the conclusion of negotiations the proposer will be expected to execute the negotiated franchise agreementpriortopresentationtotheCityCouncil.
StepSevenDeterminationofAwardofContract
CitystaffanditsconsultantwillpresenttheresultsofthenegotiationsprocesstotheCityCouncilfor theirconsideration.Atthattime,theCityCouncilmay: 1. Awardacontracttothesuccessfulproposer; 2. Directstaffandtheproposertonegotiatefurther; 3. Directstafftonegotiatewithadditionalorreplacementproposers;or, 4. Canceland/orrestartthisprocess.
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CityofRidgecrest RequestforProposals
ProposalOutline
Thefollowingoutlineshallbeusedbyproposerswhencompletingtheirproposals: i. ii. TitlePage Cover Letter (signed by the designated representative shown on Secretarys Certificate, Attachment4,authorizedtobindtheproposingcompany) TableofContents CompanyDescription 1.1 1.2 1.3 BusinessStructure DescriptionofProposersExperience Information Regarding Litigation, Regulatory Actions, and Payment of Liquidated Damages KeyPersonnel
iii. 1.0
1.4 2.0
TechnicalProposalforServices 2.1 2.2 2.3 2.4 2.5 2.6 Collection Processing RecyclingPlan PublicEducation&OutreachPlan Billing&CustomerServiceApproach ProposedServiceEnhancementsandInnovations
3.0
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CityofRidgecrest RequestforProposals
3.4 3.5
1.0
1.1
CompanyDescription
BusinessStructure 1. Identify the legal entity(ies) that would execute the Franchise Agreement. State whether eachentityisasoleproprietorship,partnership,corporation,orjointventure.Describein detail the relationship of the proposer to the executing entity. If the proposer is a joint venture,describewhereandhowtheentitieshavecollaboratedbefore. 2. Statethenumberofyearstheproposingentity(ies)havebeenorganizedanddoingbusiness. Proposalshouldincludeallthenamesofproposers(andexecutingentitiesifdifferentthan proposers)owners/stockholderswithgreaterthanatenpercent(10%)holdingandcreditors owedadebtgreaterthantenpercent(10%)ofthecompany'stotalassets. 3. Identifyotherentitieswithcommonownershipand/ormanagement.
1.2
DescriptionofProposersExperience 1. Statewhethertheproposeriscurrentlyprovidingmunicipallyfranchisedservicestosimilar communities,andifso,describethetypeofservicesprovidedandthenumberofaccounts bycustomertype. 2. Provide references from at least three jurisdictions or large customers with demographic conditionssimilartotheCityofRidgecrestwherecontractorisprovidingservicessimilarto those described in this RFP. Include the name, address, and telephone number of each jurisdictions representative responsible for administering the agreement. Contractor shall be responsible for identifying references that will be cooperative with this process. Any referencethatdeclinestocommentorotherwisecooperatewiththeCitysreferencechecks shallbedeterminedtobeanegativereference.
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CityofRidgecrest RequestforProposals
1.3
InformationRegardingLitigation,RegulatoryActions,andPaymentofLiquidatedDamages Describeallpastandpendingcivil,legal,regulatory,andcriminalactionsnowpendingorwhich haveoccurredinthepast5yearsagainstkeypersonnel(asidentifiedbytheproposerinSection 1.4), proposing entity, and all subsidiaries owned by proposing entity in California. List the amount of liquidated damages the proposing entity has paid, the name of the jurisdiction to whichdamageswherepaid,andtheevent(s)whichtriggeredthedamages.
1.4
Alsoprovidethename,contactinformationandqualificationsforthepersonwhowillserveas theprimarycontactpersonfortheCityduringthetermoftheFranchiseAgreement.
2.0
2.1
TechnicalProposalforServices
Collection Each proposer shall describe how it plans to perform the solid waste and recycling collection services requested in the RFP and described in the Franchise Agreement. Specifically, information should address solid waste separately from recycling and services to residential, commercial, drop box, and compactor customers separately for each customer type. The proposal should include a description of the proposed collection program and logisticsforthe bulky waste collection program (Section 4.4.A of the Draft Franchise Agreement). Include at a minimumforeachprogram: Typeofvehiclesused(e.g.,frontloader,rearloader); Typeandsizeofcontainerstobeprovided; Customer setout requirements (e.g. curbside, three feet from other containers or vehicles); Estimateofparticipationlevelsandvolumes; Acceptableandprohibitedmaterials;and, Any special services offered (e.g. battery collection) by the proposer and/or requirementsplacedoncustomers(e.g.pushouts).
2.2
Processing Each proposer shall submit the following information to describe the recyclable materials processingservicestheywillprovide:
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CityofRidgecrest RequestforProposals
A.
Processing Site Information. Name, location, and description of the processing facility(ies)whererecyclablematerialswillbehandled;nameoftheownerandoperator ofthefacility(ies);contactnameandphonenumberofthesitemanager;and,thecurrent averagemonthlyresidueleveloftheprocessingsite.Identifyifthecompanythatownsor operates the processing site is the same as the proposing entity or is a relatedparty entity. Transfer Site Information. Since there are no current transfer or material processing facilitieswithinorneartheCity,itisanticipatedthatthesuccessfulcontractorwillneed todevelopsomestrategyfortransferringrecyclablematerialstoaprocessingfacilityafter they are collected in the City. Each proposer should describe their plans for moving recyclable materials collected in the City to the processing facility including any costs (under2.2.Fbelow)incurred. PermitsandRegulatoryCompliance.Providecontactnamesfortheregulatoryagencies thatmonitortheprocessingfacilityscompliancewithapplicablelocal,state,andfederal lawsandregulations.Foreachcontact,providethenameoftheregulatoryagency,and thecontactpersonsname,title,andtelephonenumber. FacilityRecyclingInformation.Describethetypeoffacility(e.g.singlestreamMRF,dual stream MRF, mixed waste MRF, etc.), how that facility operates to maximize material recovery and minimize residue, and how that facility approaches the marketing of recyclablematerials. AcceptableandProhibitedMaterials.Providealistofthematerialsacceptedandsoldto marketsbythefacilityfromcurbsiderecyclingprograms.Theselectedproposerslistwill beincorporatedintothedefinitionofRecyclableMaterialsforthepurposesofthefinal FranchiseAgreement. Costs.Providethenetpertonrevenueornetpertonprocessingcostand,ifapplicable, perton transfer station fees effective on the commencement date of the Franchise Agreement.Listseparatelyanyregulatoryfees,taxes,orsurchargesincludedinsuchcost.
B.
C.
D.
E.
F.
2.3
RecyclingPlan Proposers shall describe, in detail, how they plan to comply with the Diversion and Recycling Requirements specified in the Citys Source Reduction and Recycling Element and the CalRecycle/City of Ridgecrest Compliance Order (Exhibits E and F of Attachment 1, Draft Franchise Agreement). Specifically, information should separately address planned diversion operations,programsand/ormethodsfordiversionofmaterialfromresidentialandcommercial generators.Includeataminimum: Adescriptionofanyproposedsourceseparationdiversionprogram(s); Adescriptionoftheproposersapproachforacknowledging/rewardingtherecycling effortsofindividualcustomersand/ortheserviceareaasawhole;and, Adescriptionofanydiversiontobeachievedthroughsegregationofmaterialsata transferstationormaterialrecoveryfacility(ies);
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CityofRidgecrest RequestforProposals
2.4
PublicEducationandOutreachPlan The City places importance on effective public education andpromotionasthekeytohelping residentsandbusinessesunderstandmoreaboutsourcereduction,reuse,andrecycling.Thisis particularly important in this case because the recycling program will be based on the subscriptionofcustomerstotheprogramandtheneedtoadvertiseandpromotethatprogram toensureitseffectiveness.Theindependenteffortsoftheselectedcontractorwillbecriticalto the success of their programs. Each proposer shall describe the following separately for residentialandcommercial(includingCityfacilities)services: Public education programs that will be implemented for the proposed recyclable materialsandorganicmaterialsprograms. Plans for, if any, presentations to schools, churches, and other community organizations. Planfordevelopmentofemployee/tenantrecyclingprogramtrainingbrochuresor othermaterialstobeprovidedtobusinessownerorpropertymanagers. PlansforparticipationatCityorothercommunityevents,suchasbooths,displays, sponsorship,paradefloats,etc. Outreachandwasteauditstoidentifyadditionalrecyclingopportunities,ifany. Schedule, description, and quantity of information that will be distributed (e.g., newsletters, brochures, etc.). Example materials from other jurisdictions are encouraged. Proposed number of hours per week that will be devoted to the promotion and maintenanceofeachoftheprograms. Publiceducationandoutreachstafforsubcontractorsqualifications,resumes,years ofexperience,andreferences. Samples of similar educational materials, which may have been used in other programs. Proposedannualbudgetforpubliceducationandoutreach.
2.5
BillingandCustomerServiceApproach
The proposer should describe its suggested approach for providing billing services and excellent customerservicetotheCityanditsresidentsandbusinesses.Thisdescriptionshould,ataminimum, includeinformationregarding: Billing Describehowtheproposerwilldevelopthenecessarycustomerserviceandbillingdataat thestartofservices,acknowledgingthatdatafromthepriorserviceproviderwilllikelynot beavailable.Suchadescriptionshallincludetheproposersapproachforidentifyingservice needsandprocessforauditingandverifyingtheaccuracyofdataintheContractorssystem. 16 CityofRidgecrest RequestforProposals
Provide sample of customer bills and a listing of jurisdictions where proposer currently providesbillingservices,includingacontactnameandphonenumber. Describeallacceptablepaymentmethodsincludingcontractorsexperiencewithautomated paymentsystemsandwebsitebasedpayments. Describecontractorsapproach,includingfrequency,forperformingauditsofservicelevels andbillingtoensurethatallcustomersarebeingbilledproperly. Describeitsproceduresfordealingwithcustomerservice,withregardstocustomerbilling demands,duringthetransitionandthroughoutthetermoftheAgreement. Provideadescriptionofproposersexperiencewithbaddebtinothercommunitieswhere proposer currently provides service. This description should list each community, the number of customers in that community, and the bad debt ratio (expressed as the percentageofuncollectablebillingsrelativetototalbillings).
CustomerService Describethelocationwherecustomerserviceoperationwillbehoused. SpecifythenumberoffulltimeequivalentCustomerServiceRepresentatives(CSR)thatwill servetheCity.Describehowcallswillbehandled/reported,howmanycallsareexpected per CSR, and describe any changes you will make to your current CSR operation to accommodatetheCity. Describe procedures to satisfactorily respond to, record, and report common customer complaints such as: missed pickups; spills and litter resulting from collection; collection schedule changes; broken or missing containers; improperly prepared setouts; noise complaints;trafficandsidewalkobstructionduringcollection;and,safetyaroundcollection vehiclesduringoperations. Describe training programs for CSRs including how the CSRs will gain knowledge of the FranchiseAgreementtermsaswellasthelocalneighborhoods,streets,andcustomers. Describeyourcompanysperformancestandardsrelativetocustomerserviceintermsof: Maximum resolution time (resolution time means the duration of time from the receiptofthecustomerscomplaintuntilthetimethatthecomplaintisresolvedtothe customerorCityssatisfaction) Averageresolutiontime Maximumcallcenterholdtime Averagecallcenterholdtime Emailandwebsiterequestresponsetimes
2.6
ProposedServiceEnhancementsandInnovations
Proposersareencouragedtosubmitoneormoreproposalsforserviceenhancements,innovations,or costsaving approaches. Examples of possible service enhancements and innovations may include strategieslikelessfrequentcollection,dirtyMRFing,manualcollection,splitbodycollectionvehicles, oruseofcustomerprovidedcontainers.Foreachproposalforinnovativeand/orcostsavingservices,
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CityofRidgecrest RequestforProposals
proposershallprovideathoroughdescriptionofitsplansfortheprogram,including,butnotlimitedto, thefollowing: Thetypeandnumberofcustomersthatwouldbetargetedandbasisforestimatedtonnage levelsandcustomerparticipationlevels; Collectionmethodology; Equipmenttobeutilized(e.g.,equipment/vehicledescription,number,types,cost.capacity, age, etc.). Describe plans for equipment replacements through themaximumtermofthe FranchiseAgreement; Transferandprocessingfacilities; Marketingstrategyandmarketsforrecyclablematerials; The benefits of the proposed service, and potential challenges related to the service and strategiesformanagingsuchchanges;and, Communitieswherethisprogramhasbeensuccessfullyimplementedbyproposerorothers.
Ifinnovativeorcostsavingproposalsarepresentedandresultinadifferentcostthanthebasicservices requestedunderthisRFP,proposershallfollowthecostproposalrequirementsspecifiedinSection3.0 belowandsubmitaseparatesetofcostformsforeachalternativeproposaldescribed. If base service includes innovations that do not change the cost of the service, there is no need to submitaseparatesetofcostandrateforms. TheCityisnotobligatedtoevaluateorselecttheseproposals.Innovativeorcostsavingproposalsmay beconsideredbytheCityifitconcludesthattheywarrantevaluationandanalysis.
3.0
ProposalForms
Each proposer is required to complete Proposal Form 1todocumentthecompanysproposalforthe facilities to be used for disposal, processing, vehicle maintenance, and administration and equipment manufacturersandspecifications. 3.2 OperatingStatistics
Eachproposeristoprovide,onProposalForm2,operationalstatisticssuchasthenumberoffulltime route personnel that will be assigned to service the City, the number of routes and route hours anticipatedtoservicetheCity,andthetonnageofsolidwasteandrecyclablematerialsanticipatedtobe collected in the City. This operational data will provide the City with a basis for evaluating the reasonablenessofeachproposersplans.TheCitywillreviewtheseoperatingstatisticstodetermine thereasonablenessofContractorsproposedlevelofeffort.
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CityofRidgecrest RequestforProposals
3.3
StaffingPlan
Eachproposeristoprovide,onProposalForm3,theirlabor(staffing)plandocumentingthenumberof fulltimeequivalent employees to be assigned to each line of business (e.g. residential solid waste, commercialsolidwaste,residentialrecycling,etc.)aswellasthenumberofemployeestobeassigned toeachadministrativeormanagementposition(e.g.routesupervisors,maintenance,customerservice, etc.).TheCitywillreviewthelaborplantoensuretheadequacyandappropriatenessoftheproposers approach to deploying human resources toward the implementation and operation of the programs andservicesprovidedinresponsetothisRFP. 3.4 EquipmentPlan
Each proposer is to provide, on Proposal Form 4, their equipment (capital) plan documenting the number of vehicles, containers, and other capital expenditures that will be employed in providing services.TheCitywillreviewtheequipmentplantoensuretheadequacyandappropriatenessofthe proposers approach to deploying capital resources toward the implementation and operation of the programs and services provided in response to this RFP. The City does not require the use of new collection vehicles or other equipment, however each proposer should review the equipment performancestandardscontainedintheDraftFranchiseAgreementtoensurethatallvehiclesproposed complywiththoserequirements. 3.5 AnnualOperatingCostEstimate
On Proposal Form 5, each proposer is required to provide its estimated annual cost of operations to servicetheCitylistingcostsseparatelyforlaborrelated,vehiclerelated,processing,disposal,andother costs. The annual operating cost information will provide the City with a basis for evaluating the reasonablenessofeachproposersplansandnegotiatingfuturechangesinthescopeofservice.Note thattheestimatedannualoperatingcostsshallbepresentedincurrentdollars.TheCitywillreviewthe costestimatetoensurethatitisconsistentwiththeoperatingassumptionspresentedinForm2,labor assumptions presented in Form 3, and equipment assumptions presented in Form 4. The annual operating costs identified in Form 5 should not differ from the annual rate revenue projected by the ratesproposedinForms6and7bymorethan$5,000peryear. 3.6 CartandBinRateProposal
On Proposal Form 6, proposers are required to propose rates for collection of carts and bins from commercialandresidentialcustomers.Iftheproposeristheselectedserviceprovider,theseproposed rates will be the companys compensation for providing service to City customers. Note that the proposedcommercialandresidentialratesshallbepresentedfortherateyearcommencingJanuary1, 2012. 3.7 DropBoxandCompactorRateProposal
On Proposal Form 7, proposers are required to propose rates for collection of drop boxes and compactorsintheCity.Iftheproposeristheselectedserviceprovider,theseproposedrateswillbethe companyscompensationforprovidingservicetoCitycustomers.Notethattheproposeddropboxand compactorratesshallbepresentedfortherateyearcommencingJanuary1,2012.
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CityofRidgecrest RequestforProposals
4.0
ExceptionstoFranchiseAgreement
Toprovideproposerswithaclearunderstandingoftheroles,responsibilities,rights,andobligationsof theselectedcontractorandtheCity,aDraftFranchiseAgreementhasbeenincludedasAttachment1to this RFP. Proposers are required to review the Draft Franchise Agreement prior to submittal of proposals to the City. This review process allows proposers to prepare the proposal and costs for serviceswithfullconsiderationoftheirrightsandobligations. The City expects that the Draft Franchise Agreement will be executed by the selected proposer in substantiallythesameformaspresentedinAttachment1.AnyproposedexceptionstotheRFPand/or the proposed terms and conditions of the Draft Franchise Agreement shall be documented in redline/strikeoutformatbytheproposerintheirsubmittalofthecompleteDraftFranchiseAgreement. Foreachexceptionnoted,proposershallprovidealternativelanguagefortheCitysconsideration. TheCityshallreservetherighttodetermineiftheexceptionsarereasonable.Thenumberandnature of the comments will be compared to those noted by the other proposers during the proposal evaluationprocess.IftheCitychoosestoenterintonegotiationswithaproposer,thecommentsnoted and recommended alternative Franchise Agreement language will serve as a starting point for discussion. The proposer will be deemed to have accepted and agreed to any provisions of the RFP and/or proposed terms and conditions of the Draft Franchise Agreement which have not been noted as exceptionsintheproposal.Withthisunderstanding,theselectedproposermaynotinitiatediscussion with the City during negotiations related to Franchise Agreement language for which no exceptions were noted. The City may wish to have the signed Franchise Agreement in hand before City Council makesthefinalcontractorselection.
5.0
ImplementationPlan&Schedule
6.0
AntiCollusionAffidavit
EachproposershallcompleteandsubmittheAntiCollusionAffidavit,Attachment3.
7.0
SecretarysCertificate
EachproposershallcompleteandsubmittheSecretarysCertificate,Attachment4.
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CityofRidgecrest RequestforProposals
Responsiveness
ComprehensivenessandconsistencyoftheproposalwithrespecttothisRFP. Completenessandaccuracyofallproposalforms. Submittalofaredline/strikeoutversionofthedraftfranchiseagreementwithanyexceptionsnoted andallblanksidentifiedforCompanypopulated. CompliancewiththeRFPandprocurementprocedures. Inclusionofproposalsurety.
ProposersQualifications
Experience Demonstrated experience of proposer and key personnel (those people who are implementingprogramsandprovidingongoingservicestotheCity)providingtherequestedsimilar servicestootherjurisdictions.Iftheproposerisajointventure,demonstratedexperienceofparties workingtogether. Customer Satisfaction Satisfaction of proposers references for services received in the past five years (including, but not limited to, satisfaction with implementation, customer service, billing, paymentoffees,reporting,andthehandlingofcontractualissues). Litigation and Regulatory Action Nature of past and pending civil, legal, regulatory, and criminal actionsandhistoryandnatureofpaymentsofliquidateddamages.
TechnicalProposal
OperationsReasonablenessandreliabilityofproposedserviceprovisionmethods,equipment,and receptacles. Billing and Customer Service Plan Reasonableness of proposed billing and customer service plan andthelevelofserviceprovidedtocustomers. RecyclingPlanReasonablenessandcomprehensivenessoftheproposersplantoperformrecycling andotherdiversionprograms. Public Education and Outreach Plan Reasonableness and comprehensiveness of the proposers plantoprovidepubliceducationandoutreachtothecommunity.
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CityofRidgecrest RequestforProposals
ProposedCost
CostsThereasonableness,accuracy,andconsistencyoftheproposersoperational,labor,capital, cost,andrevenueproposals. Rates Competitiveness of companys proposed rates to customers relative to rates proposed by others.
ExceptionstoDraftFranchiseAgreement
Number and Nature The number and nature of exceptions to the RFP and Draft Franchise Agreement. Likelihood of Prompt and Successful Negotiations The likelihood that the City will be able to promptlyandsuccessfullynegotiatechangestothefranchisewiththeproposer.
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CityofRidgecrest RequestforProposals
TABLEOFCONTENTS
ARTICLE 1: GRANT AND ACCEPTANCE OF FRANCHISE ........................................ 6 Section 1.1: Grant and Limitations of Exclusive Franchise ........................................ 6 ARTICLE 2: REPRESENTATIONS AND WARRANTIES OF THE PARTIES ............... 8 Section 2.1: Representations and Warranties ............................................................ 8 ARTICLE 3: TERM OF AGREEMENT.......................................................................... 10 Section 3.1: Term of Agreement .............................................................................. 10 Section 3.2: Citys Option to Extend......................................................................... 10 Section 3.3: Termination for Failure to Implement Services ..................................... 10 ARTICLE 4: SCOPE OF SERVICES ............................................................................ 11 Section 4.1: Residential Services............................................................................. 11 Section 4.2: Commercial Services ........................................................................... 12 Section 4.3: Collection Service Operating Requirements ........................................ 13 Section 4.4: Other Services ..................................................................................... 14 Section 4.5: Standard of Performance ..................................................................... 15 Section 4.6: Collection Locations ............................................................................. 17 Section 4.7: Other Wastes ....................................................................................... 17 Section 4.8: Changes in Scope of Collection Services ............................................ 18 Section 4.9: Billing ................................................................................................... 18 Section 4.10: Transition to Next Contractor at End of Agreement ........................... 19 ARTICLE 5: PROCESSING AND TRANSFER ............................................................ 20 Section 5.1: Processing and Transfer Arrangements............................................... 20 Section 5.2: Recyclable Materials Marketing ........................................................... 20 Section 5.3: Title to Recovered Materials ................................................................ 20 ARTICLE 6: SOLID WASTE DISPOSAL ..................................................................... 21 Section 6.1: Solid Waste Disposal ........................................................................... 21 Section 6.2: Gate Fees ............................................................................................ 21 Section 6.3: Bin Fees ............................................................................................... 22 ARTICLE 7: RECYCLING PROGRAMS ...................................................................... 23 Section 7.1: The Contractor's Responsibility for Implementation ............................. 23 Section 7.2: Recycling Plan ..................................................................................... 23 Section 7.3: Public Awareness ................................................................................ 23 Section 7.4: Termination for Failure to Implement Strategies .................................. 24 ARTICLE 8: OPERATING ASSETS ............................................................................. 25 Section 8.1: Operating Assets ................................................................................. 25 Section 8.2: Operation and Maintenance of the Operating Assets .......................... 26 Section 8.3: Containers............................................................................................ 26
1 TheCityofRidgecrest FranchiseAgreement
Section 8.4: Vehicle Requirements .......................................................................... 27 ARTICLE 9: GENERAL REQUIREMENTS .................................................................. 28 Section 9.1: Public Access to the Contractor ........................................................... 28 Section 9.2: Service Complaints .............................................................................. 28 Section 9.3: Accounting and Records ...................................................................... 28 Section 9.4: Reporting ............................................................................................. 29 Section 9.5: Integrated Waste Management Act (AB 939) Compliance ................... 29 Section 9.6: Personnel and Subcontractors ............................................................. 30 Section 9.7: City Contract Manager ......................................................................... 30 ARTICLE 10: CITY FEES ............................................................................................. 32 Section 10.1: City Fees ............................................................................................ 32 Section 10.2: Adjustment to Fees ............................................................................ 32 Section 10.3: Payment Schedule and Late Fees ..................................................... 32 ARTICLE 11: CONTRACTORS COMPENSATION AND RATE SETTING ................. 34 Section 11.1: General .............................................................................................. 34 Section 11.2: Rates and Annual Adjustments .......................................................... 34 Section 11.3: Extraordinary Rate Adjustments ........................................................ 35 Section 11.4: Publication of Rates ........................................................................... 36 ARTICLE 12: INDEMNITY, INSURANCE, AND PERFORMANCE BOND .................. 37 Section 12.1: Indemnification ................................................................................... 37 Section 12.2: Insurance ........................................................................................... 38 Section 12.3: Performance Bond ............................................................................. 40 ARTICLE 13: DEFAULT, REMEDIES AND TERMINATION ........................................ 41 Section 13.1: Default and Remedies........................................................................ 41 Section 13.2: Liquidated Damages .......................................................................... 42 Section 13.3: Uncontrollable Circumstances ........................................................... 44 Section 13.4: Right to Demand Assurances of Performance ................................... 45 Section 13.5: Waiver of Defenses ............................................................................ 45 ARTICLE 14: RESOLUTION OF DISPUTES ............................................................... 46 ARTICLE 15: MISCELLANEOUS PROVISIONS ......................................................... 47 Section 15.1: Relationship of the Parties ................................................................. 47 Section 15.2: Notice to Parties ................................................................................. 47 Section 15.3: Actions of the City in its Governmental Capacity ............................... 47 Section 15.4: Binding Effect ..................................................................................... 48 Section 15.5: Amendments ...................................................................................... 48 Section 15.6: Further Assurance ............................................................................. 48 Section 15.7: Assignment and Transfer of Agreement............................................. 48 Section 15.8: Interpretation ...................................................................................... 49 Section 15.9:Jurisdiction .......................................................................................... 51 Section 15.10: Entire Agreement ............................................................................. 51
2 TheCityofRidgecrest FranchiseAgreement
List of Exhibits
A.Definitions B.RateAdjustmentMethodology B1.MultiIndexRateAdjustmentMethodology B2.CostBasedRateAdjustmentMethodology C.ContractorsProposal{Tobeprovidedbyselectedcontractor.} C1.TechnicalProposal C2.CostBasisforProposal C3.InitialRatesforCollectionServices C4.ImplementationPlanandSchedule C5.PublicEducationandOutreachPlan C6.ContractorsRecyclingPlan C7.ApprovedSubcontractors D.ReportingRequirements E.PerformanceBond{Tobeprovidedbyselectedcontractor.} E.CitysSourceReductionandRecyclingElement F.CalRecycle/CityofRidgecrestComplianceOrder G.CityServiceLocations
TheCityofRidgecrest FranchiseAgreement
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SOLIDWASTEFRANCHISEAGREEMENT
This Solid Waste Franchise Agreement (the "Agreement") is entered into on the ____ day of _________,2011,byandbetweentheCityofRidgecrest(hereinafter,the"City"),and{InsertContractor Name}(hereinafter,the"Contractor")(together,the"Parties").
RECITALS
WHEREAS,theLegislature oftheState ofCalifornia,byenactmentoftheCaliforniaIntegrated WasteManagementActof1989("AB939")andsubsequentmodificationsthereto,establishedaSolid Waste management process which requires cities and other local jurisdictions to implement source reduction,reuseandRecyclingasintegratedwastemanagementpractices;and WHEREAS,AB939authorizesandrequireslocalagenciestomakeadequateprovisionsforSolid Wastehandlingwithintheirjurisdictions;and WHEREAS, Section 40059 of the State Public Resources Code provides that the City may determine aspects of Solid Waste handling which are of local concern, including, but not limited to, frequencyofCollection,meansofCollectionandTransportation,levelofservices,chargesandfeesand nature,location,andextentofprovidingSolidWastehandlingservicesandwhethertheservicesareto beprovidedbymeansofpartiallyexclusiveorwhollyexclusiveAgreements,contracts,licenses,permits orotherwise;and WHEREAS, the City is obligated to protect the public health and safety of the residents of the CityandarrangementsbywastehaulersfortheCollectionofSolidWasteshouldbemadeinamanner consistentwiththeprotectionofpublichealthandsafety;and WHEREAS,theCityhasenteredintoacomplianceplanwithCalRecycleinordertocomeintofull compliance with AB939 and the Parties understand that the implementation of and continued compliance with that plan and the Citys Source Reduction and Recycling Element (SRRE) will become theprimaryresponsibilityoftheContractor;and WHEREAS,theCityandtheContractoraremindfuloftheprovisionsofthelawsgoverningthe safe Collection, Transport, Recycling, and Disposal of Solid Waste, including AB 939 and the Resource ConservationandRecoveryAct42U.S.C.9601etseq.;and WHEREAS,theCityCouncildeterminesandfindsthatthepublicinterest,health,safetyandwell being would be served if the Contractor performs these services for Residential and Commercial Customers;and WHEREAS, in accordance with Section 40059 of the State Public Resources Code, the City Council is empowered to enter into agreements with any Person or corporation and to prescribe the termsandconditionsofsuchagreements;and WHEREAS,theCityCouncilhasselectedContractorthroughacompetitiveprocurementprocess andhasauthorizedtheexecutionofthisAgreementon{InsertDatefollowingCouncilaction};and WHEREAS, neither the City nor Contractor could anticipate all of the possible needs, considerations,oreventualitiesthatmayariseduringtheTermofthisAgreementandthePartiesagree 4 TheCityofRidgecrest FranchiseAgreement
38 39 40 41
that they will work together in a spirit of mutual cooperation to resolve any such issues as and when theyarise; NOW THEREFORE, in consideration of the respective and mutual covenants and promises herein,andsubjecttoallthetermsandconditionshereof,thePartiesagreeasfollows:
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43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74
2.
3.
4.
5.
6.
7.
8.
TheCityofRidgecrest FranchiseAgreement
75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96
9.
ContractoracknowledgesandagreesthattheCitymaypermitotherPersonsbesidestheContractorto Collect any and all types of materials excluded from the scope of this Franchise, as set forth above, without seeking or obtaining approval of Contractor. If Contractor can produce evidence that other Persons are servicing Collection Containers or are Collecting and Transporting Solid Waste and/or Recyclable Materials (collectively Franchised Materials) in a manner that is not consistent with this AgreementortheCitysMunicipalCode,itshallreportthelocation,thenameandphonenumberofthe Person or company to the City Contract Manager along with Contractors evidence. In such case, the CitymaynotifytheGeneratorandPersonprovidingserviceofContractorsrightsunderthisAgreement. This Agreement and scope of this franchise shall be interpreted to be consistent with Applicable Law, nowandduringtheTermoftheAgreement.Iffuturejudicialinterpretationsofcurrentlawornewlaws, regulations, or judicial interpretations limit the ability of the City to lawfully contract for the scope of services in the manner and consistent with all provisions as specifically set forth herein, Contractor agrees that the scope of the Agreement will be limited to those services and materials which may be lawfully included herein and that the Agency shall not be responsible for any lost profits or losses claimedbyContractortoariseoutoflimitationstothescopeorprovisionsoftheAgreementsetforth herein.Insuchanevent,itshallbetheresponsibilityofContractortominimizethefinancialimpactof suchfuturejudicialinterpretationsornewlawsandtheContractormaymeetandconferwithAgency andmaypetitionforaRateadjustmentpursuanttoSection8.3.
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99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133
B.
C.
D.
E.
F.
134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 G.
necessaryinordertomakethestatementsmade,inlightofthecircumstancesinwhichtheywere made,notmisleading. ContractorsInvestigation.Contractorhasmadeanindependentinvestigation(satisfactorytoit) of the conditions and circumstances surrounding the Agreement and the work to be performed hereunder. ContractorhastakensuchmattersintoconsiderationinenteringthisAgreement to provide services in exchange for the compensation provided for under the terms of this Agreement. Ability to Perform. Contractor possesses the business, professional, and technical expertise to manage,Collect,Transport,andDisposeoftheSolidWasteandtomanage,Collect,Transport,and Process Recyclable Materials and Compostable Materials; and Contractor possesses the equipment,facility,andemployeeresourcesrequiredtoperformthisAgreement. VoluntaryUseofDesignatedDisposalFacility.TheContractor,withoutconstraintandasafree freemarketbusinessdecisioninacceptingthisAgreement,agreestousetheApprovedDisposal LocationforthepurposesofDisposingofallSolidWasteCollectedintheCity.Suchdecisionby ContractorinnowayconstitutesarestraintoftradenotwithstandinganyChangeinLawregarding flowcontrollimitationsoranydefinitionthereof.
H.
I.
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10
TheCityofRidgecrest FranchiseAgreement
174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 192 193
B.
Recyclable Materials Collection. Contractor shall Collect Recyclable Materials in Contractor providedContainersone(1)timeeveryotherweekfromResidentialCustomersandTransportall RecyclableMaterialstotheApprovedRecyclableMaterialsProcessingFacilityforProcessing.
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TheCityofRidgecrest FranchiseAgreement
204 205 206 207 208 209 210 211 212 213 214 215 216 217 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245
ServiceFrequency: ServiceLocation:
OtherRequirements:
B.
Recyclable Materials Collection. Contractor shall Collect Recyclable Materials in Contractor providedContainersnotlessthanone(1)timeeveryotherweekfromCommercialCustomersand Transport all Recyclable Materials to the Approved Recyclable Materials Processing Facility for Processing. Containers: ContainerSizes: ServiceFrequency: ServiceLocation: Carts,DropBoxes,Compactors 96gallonCarts; 1.5,3,and6cubicyardBins;and, DropBoxesorCompactors(asrequestedbyCustomer) Uptoone(1)timeperweekbutnotlessthanone(1)timeeveryother week,asrequestedbyCustomer CurbsideorotherCustomerselectedservicelocationattheCommercial Premises(push/pullchargesmayapplyifContainer isnotimmediately accessiblebytheCollectionVehicle). RecyclableMaterials SolidWaste,ExcludedWaste
AcceptableMaterials: ProhibitedMaterials:
12
TheCityofRidgecrest FranchiseAgreement
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AdditionalService:
OtherRequirements:
Upon Customer request and to accommodate periodic additional service needs, Contractor shall provide Collection service at a greater frequency than the Customers regularly scheduled service, up to the maximum Service Level and Contractor may charge the appropriate RateforthehigherServiceLevel. Contractor shall, at Customers request and for an additional charge, open and close gates, push and/or pull Containers, lock and unlock Containers,orperformotherservicesasreasonablynecessarytoaccess andemptyContainers.
B.
C.
D.
E.
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283 284 285 286 287 288 289 290 291 292 293 294 295 296 297 298 299 300 301 302 303 304 305 306 307 308 309 310 311 312 313 314 315 316 317 318 319 320 321 322 323 324
OtherRequirements:
B.
CityFacilitiesandEvents.ContractorshallCollectSolidWasteandRecyclableMaterialsfromCity facilitiesinthesamemannerasthoseservicesareprovidedtoCommercialCustomers.Contractor shallprovideservicetoallCityfacilitiesidentifiedinExhibitGaswellasanyfuturefacilitiesowned andoperatedbytheCity.ContractorshallprovideSolidWasteandRecyclableMaterialsservices to Citysponsored public event held within the City to include, at a minimum, Carts for the collectionofbothSolidWasteandRecyclableMaterialsandstaffingsufficienttoensurethatsuch Cartsareservicedfrequentlyenoughtopreventoverflowingorspillage.Contractorshallprovide theseservicesatnocosttotheCityorCustomers. Christmas Trees. The Contractor shall Collect all Christmas trees properly placed curbside by ResidentialPremisesonthefirsttwo(2)regularlyscheduledCollectiondaysafterChristmasDay, or such other days as agreed by the City Contract Manager and the Contractor, free of any additionalchargetoanyCustomer. SpecialServices.TheContractorshallhavetheright,butnottheobligation,toprovideadditional Special Services requested by any Customer which are directly related or ancillary to any of the otherCollectionServicesauthorizedhereunder.ThenatureandtermsofanysuchSpecialServices shall be negotiated with the Customer and compensation therefore shall be paid by the 14 TheCityofRidgecrest FranchiseAgreement
C.
D.
325 326 327 328 329 330 331 332 333 334 335 336 337 338 339 340 341 342 343 344 345 346 347 348 349 F. E.
requestingCustomeratRatesapprovedbytheCity.IntheeventthattheCitydeterminesthatthe Rates set by the Contractor for such Special Services are inappropriate, the Contractor shall providetheCitywithinformationsupportingthelevelofRateproposedbytheContractor.Upon receiptandreviewofsuchinformation,theCitymaysettheRate,whichshallbecomebindingon the Contractor. {Proposer Please include any rates for special services (e.g. push/pull, lock/unlock,backyard/sideyard,etc.)whichcanbereasonablyanticipatedinyourrateproposalso thatsuchratescanbeapprovedinadvance.} IllegalDumping.PursuanttoSection___oftheMunicipalCode,theContractorshall,atalltimes, take reasonable measures to keep the roads and streets in the City free from litter from the operations of its Operating Assets. In addition, within the City, the Contractor shall, without chargetotheCityorCustomers: 1. Cleanupthree(3)cubicyardsorlesspereventofnonHazardousWastefrompublicareas, uponrequestbyCity; Cleanup three (3) Bulky Waste Items or less per event of unquestionably discarded Bulky WastefrompublicroadwaysoralleyswhenobservedbyContractorspersonnel;and, ProvideContainersandCollectionserviceforcleanupbyCityprovidedlaborcrewsandCity coordinatedvolunteercleanupsofoverthree(3)cubicyardsofillegallydumpedwaste.
2.
3.
Contractor shall work with the County to deliver such illegally dumped waste at the Designated DisposalFacilityatnoadditionalchargetotheCityorContractor.IntheeventthattheDesignated Disposal Facility is required to charge for the receipt of such materials, the City and Contractor shall meet and confer regarding the cost of Disposal of material related to this program and ContractorshallberelievedofitsrequirementtoDisposeofthismaterialuntilarrangementscan bemadeforpaymentofsuchcharges. Public Education and Outreach. The Contractor shall perform all public education and outreach activitiesasdescribedinitsPublicEducationandOutreachPlaninExhibitC5.
350 351 352 353 354 355 356 357 358 359 360 361
B.
362 363 364 365 366 367 368 369 370 371 372 373 374 375 376 377 378 379 380 381 382 383 384 385 386 387 388 389 390 391 392 393 394 395 396 397 398 399 400 D. C.
establishallreasonablepracticesforthescreeningandeliminationofHazardousWastefromthe waste stream including, but not limited to, the training of personnel and the revision of such practices as necessary to reflect prudent waste screening considered to be good practice in the SolidWasteCollectionandDisposalindustryatthetime. IftheContractorfindswhatreasonablyappearstobediscardedHazardousWasteorHousehold HazardousWasteataDesignatedCollectionLocation,theContractor,inadditiontotheprocedure outlinedinthepreviousparagraph,shalleither: 1. Notify the Owner or Generator, if such can be determined, that the Contractor may not lawfullyCollectsuchwasteandleaveatagspecifyingthenearestlocationavailableforsuch appropriateDisposal;or, FollowsuchotherprocedureastheCityContractManagershallapprove.
2.
Intheeventofathreattothepublichealthandsafety,theContractorshallimmediatelycontact thelocalfiredepartment.TheContractorshallnotifytheCityContractManagerofsuchincident withinone(1)day. Employees: 1. Uniform. The Contractor shall take all steps necessary to ensure that its employees performing Collection Services conduct themselves in a safe, proper, and workmanlike manner,andthattheyworkasquietlyaspossible.Allsuchemployeesshallatalltimesof employmentbedressedinuniformswithsuitableidentification. DriverQualifications.Alldriversmusthaveineffectavalidlicense,oftheappropriateclass, issued by the California Department of Motor Vehicles. Contractor shall use the Class II California Department of Motor Vehicles employer Pull Notice Program to monitor its driversforsafety. SafetyTraining.Contractorshallprovidesuitableoperationalandsafetytrainingforallof its employees who operate Collection Vehicles or equipment. Contractor shall train its employeesinvolvedinCollectiontoidentify,andnottoCollect,ExcludedWaste.Uponthe City Contract Managers request, Contractor shall provide a copy of its safety policy and safetytrainingprogram,thenameofitssafetyofficer,andthefrequencyofitstrainings.
2.
3.
Improper Loading of Containers. The Contractor may decline to Collect any Solid Waste and RecyclableMaterialsthatbeenloadedorleftforCollectioninanymannerwhichwouldprohibitits safeCollection. RecordofNonCollection.WhenanySolidWasteandRecyclableMaterialsplacedforCollection arenotCollectedby the Contractor,theContractorshallleaveataglistingthereasonsforsuch nonCollectionandatelephonenumberatwhichtheCustomermaycontacttheContractor.This informationshalleitherbeinwritingorbymeansofacheckedboxonaform.TheContractorshall maintain,atitsplaceofbusiness,alogbooklisting allsuch circumstancesin whichCollectionis denied. The log book shall contain the names and/or addresses of the Collection Premises involved, the date of such tagging, the reason for nonCollection, and the date and manner of dispositionofeachcase.Thelogbookshallbekeptsothatitmaybeconvenientlyinspectedby 16 TheCityofRidgecrest FranchiseAgreement
E.
401 402 403 404 405 406 407 408 409 410 411 412 413 414 415 416 417 418 419 F.
the City Contract Manager upon request. The log relating to any particular tagging shall be retainedforaperiodofone(1)yearfollowingsuchtagging. Fees and Gratuities. The Contractor shall not, nor shall it permit any agent, employee, or Subcontractor employed by it, to request, solicit, or demand, either directly or indirectly, any compensation for the Collection of Solid Waste and Recyclable Materials or other Collection Services,exceptsuchcompensationasisspecificallyprovidedforhereinasapprovedbytheCity. CompliancewithApplicableLaw.TheContractorshallcomplywithallApplicableLawrelatingto any aspect of the Collection Services or this Agreement, shall obtain and maintain all legal entitlementsrequiredfortheOperatingAssetsandtheCollectionServices,shallcomplywithall valid acts, rules, regulations, orders, and directions of any Governmental Body applicable to the Operating Assets and the Collection Services provided hereunder, and shall pay all taxes in connectiontherewith.TheContractorshallkeepallrecordsindicatingcompliancerequiredbythe FederalImmigrationandControlActof1986andshallmakesuchrecordsavailableforinspection bytheCityContractManageruponrequest. TaxesandUtilityCharges.TheContractorshallpayalltaxeslawfullyleviedorassesseduponorin respectoftheOperatingAssetsortheCollectionServices,oruponanypartthereoforuponany revenuesoftheContractortherefrom,andshallprovideandpaythecostofallutilitiesnecessary fortheoperationoftheOperatingAssetsandtheprovisionoftheCollectionServices,whenthe sameshallbecomedue.
G.
H.
420 421 422 423 424 425 426 427 428 429 430 431 432 433 434
B.
444 445 446 447 448 449 450 451 452 453
454 455 456 457 458 459 460 461 462 463 464 465 466 467 468 469 470 471 472 473 474 475
servicemaybediscontinuediftheaccountbecomesmorethanonehundredtwenty(120)calendardays past due. Should any account become more than one hundred twenty (120) calendar days past due, Contractor may discontinue providing service to the Customer. No less than seven (7) calendar days prior to discontinuing service to a Customer, Contractor shall notify the City Contract Manager of the address, Service Level, service frequency, and delinquent billing amount. Contractor may withhold servicefromadelinquentaccountuntilpastdelinquenciesarepaidinfull.Uponrestoringservicetoa previouslydelinquentaccount,ContractormayrequireadepositfromtheCustomernottoexceedone (1)monthsbillingsattheCustomersServiceLevel.
19
TheCityofRidgecrest FranchiseAgreement
492
493 494 495 496 497 498 499 500 501 502 503 504 505 506 507 508
C.
In the event the City directs the Contractor to modify or terminate waste Processing or Transfer arrangements, the City acknowledges that the Contractor shall nonetheless be entitled to recover, throughtheRatestobechargedandauthorizedtobeimposedhereunder,thereasonableunrecovered capital costs of the Contractor incurred in initially implementing such Processing or Transfer arrangements(determinedinaccordancewithgenerallyacceptedaccountingprinciples).
20
TheCityofRidgecrest FranchiseAgreement
524
525 526 527 528 529 530 531 532 533 534 535 536 537 538 539 540 541 542 543 544 545 546 547 548 549 550 551 552 553
B.
C.
D.
E.
21
TheCityofRidgecrest FranchiseAgreement
558 559 560 561 562 563 564 565 566 567 568 569 570 571 572 573 574 575 576 577 578 579 580 581 582 583 584 585 586 587 588 589 590 591 592 593 594 595 596 597
B.
D.
E.
F.
G.
598
599 600 601 602 603 604 605 606 607 608 609 610 611 612 613
619 620 621 622 623 624 625 626 627 628
23
TheCityofRidgecrest FranchiseAgreement
24
TheCityofRidgecrest FranchiseAgreement
636
637 638 639 640 641 642 643 644 645 646 647 648 649 650 651 652 653 654 655 656 657 658 659 660 661 662 663 664 665 666 667 668 669
B.
C.
D.
E.
25
TheCityofRidgecrest FranchiseAgreement
679 680 681 682 683 684 685 686 687 688 689 690 691 692 693 694 695 696 697 698 699 700 701 702 703 704 705 706 707 708 709 710
B.
C.
D.
711 712 713 714 715 716 717 718 719 720 721 722 723 E.
maintenance,steamcleaning,and/orrepaintingisrequiredasaresultofabuse,neglect,ormisuse onthepartofanyCustomer,theContractormaychargetheCustomerafee,tocompensatefor the cost thereof. The Contractor shall, within seven (7) days, repair or replace any stolen, damaged or dilapidated Container, provided that the Contractor shall only bear the cost of replacementofsuchContainerthefirsttimeitisstolenandthereaftersuchcostofreplacement shallbebornebytheCustomer. OwnershipofContainers.AllContainersforSolidWasteandRecyclableMaterialsprovidedbythe Contractor to Customers in accordance with this Agreement shall, at the sole discretion of the City, become the property of the of the City upon expiration or early termination of this Agreement.IntheeventthattheCitydesirestoretainownershipofsaidContainers,theCityshall notifyContractorofsuchdetermination.Contractorshallbeentitledtoreceivepaymentfromthe City or a future franchisee to the City, the remaining book value of such Containers based on a seven(7)yearstraightlinedepreciationschedule.
724 725 726 727 728 729 730 731 732 733 734 735 736 737 738
27
TheCityofRidgecrest FranchiseAgreement
739
740 741 742 743 744 745 746 747 748 749 750 751 752
B.
C.
753 754 755 756 757 758 759 760 761 762 763 764
B.
773 774 775 776 777 778 779 780 781 782 783 784 785 786 787 788 789 790 791 792 793 794 795 B.
Contract Manager to examine and audit the books of account of the Contractor at any and all reasonabletimes.Uponrequest,theContractorshallallowtheCityContractManagertoexamine thereports,theaccountsreceivableandtheinvoicespertainingtoanyfeeorchargeapprovedby the City Council for Services provided under this Agreement. Such request shall be made at reasonabletimesandwithreasonablenotice. In the event that a Special Circumstance Rate adjustment is requested, such records shall be subjecttoreviewinaccordancewithappropriateprofessionalstandards,andinspection,forthe primary purpose of reviewing changes in costs to the Contractor attributable to the Special Circumstancerequest,atanyreasonabletimebyanindependentthirdparty.Theselectionofthe independentthirdpartyaswellasthescopeofworkforsuchreviewshallbeapprovedinadvance by the City Contract Manager. The independent reviewer shall provide any and all drafts of its reviewtotheCityandtheContractor.ThePartyrequestingtheSpecialCircumstanceRatereview shallbearthecostofthereview. TheContractorshallmaintainandpreserveallcash,billing,andDisposalrecordsthroughoutthe TermofthisAgreementandforaperiodofnotlessthanthree(3)yearsfollowingexpirationor earlyterminationoftheAgreement.TheContractorshallobtain,withinonehundredtwenty(120) days of a request by the City Contract Manager, complete independently audited financial statements for the prior calendar year, including its balance sheet, statement of revenues and expenses,andstatementofchangesincashposition,andprovidesuchfinancialstatementstothe CityContractManager. Confidentiality.TheCityagreestoholdfinancialstatementsdeliveredpursuanttothisSectionas confidential and shall not disclose the same unless and to the extent disclosure is required pursuanttoApplicableLaw.
composition analysis. Such report shall include throughput, recovery rates per material type, residue, costs, Recyclable Material commodity values, and final disposition of Recyclable Materials. The Contractor shall also supply any other information reasonably requested by the City to meet State or Federal regulatory requirements and the reporting requirements of the City's SRRE, as those requirementsmaybeamendedfromtimetotime.
817 818 819 820 821 822 823 824 825 826 827 828 829 830 831 832 833 834 835 836 837 838 839 840
B.
C.
D.
30
TheCityofRidgecrest FranchiseAgreement
849 850 851 852 853 854 855 856 857 858 859 860 861 862 863 864 865 866
affordedalloftherightsandaccessgrantedthereto.IntheeventofadisputebetweentheCityContract ManagersdesignateandContractor,theCityContractManagersdeterminationshallbeconclusive. In the event of dispute between the City Contract Manager and the Contractor regarding the interpretation of or the performance of services under this Agreement, the City Contract Managers determinationshallbeconclusiveexceptwheresuchdeterminationresultsinamaterialimpacttothe Contractors revenue and/or cost of operations. In the event of a dispute between the City Contract Manager and the Contractor that results in such material impact to the Contractor, Contractor may appealthedeterminationoftheCityContractManagertotheCityCouncil,whosedeterminationshall be conclusive. For the purposes of this definition, material impact is an amount equal to or greater thanonequarter(1/4)ofone(1)percentofContractorsannualGrossReceiptsunderthisAgreement. City Contract Manager or their designate shall have the right to observe and review Contractor operations and Processing Facilities and enter Premises for the purposes of such observation and review,includingreviewofContractorsrecords,duringreasonablehourswithreasonablenotice.Inno eventshallContractorpreventaccesstosuchPremisesforaperiodofmorethanthree(3)calendardays afterreceivingsucharequest. The City contract manager is authorized and empowered to adjust, settle, or compromise any controversy or charge arising from the operations under this Agreement, either on behalf of the City, contractor,orthepublic,pursuanttoMunicipalCodeSection35.11(e).
31
TheCityofRidgecrest FranchiseAgreement
867
868 869 870 871 872 873 874 875 876 877 878 879 880 881 882 883 884
B.
C.
900 901 902 903 904 905 906 907 908 909 910 911 912 913 914 915 916 917 918 919
andappliedtoboththeoriginalamountdueaswellasanydelinquencypenaltiespreviouslyappliedfor eachadditionalmonththepaymentremainsdelinquent.Forexample,iftheamountoftheoriginalfees feesowedequalsonehundredthousanddollars($100,000)theinitialdelinquencyamountappliedon the first day of delinquency will be three thousand dollars ($3,000) bringing the total amount to one hundredthreethousanddollars($103,000).Ifthatamountbecomespastdueforanadditionalmonth, the additional delinquency penalty shall be applied to the one hundred three thousand dollars ($103,000) therefore, the new total amount due would be one hundred six thousand ninety dollars ($106,090). EachquarterlyremittancetotheCityshallbeaccompaniedbyastatementlistingtheamountofeach fee paid; calculation of each fee; and, statement of Gross Receipts, by line of business for the period Collected from all operations conducted or permitted by this Agreement. The City Contract Manager may,atanytimeduringtheTerm,requestadetailedcalculationofGrossReceiptswhichmayinclude, butisnotnecessarilylimitedto,thenumberofCustomerschargedateachServiceLevelandRatefor eachbillingperiod. The City Contract Manager may, at any time during the Term or within three years following the expirationorearlyterminationofthisAgreement,performanauditofContractorsbillingsandpayment offees.Contractorshallfully cooperatewiththeCityContract Managerinanysuchaudit.Shouldthe Cityoritsagentperformthisreviewandidentifybillingerrorsorothererrorsinpaymentoffeesvalued atone(1%)percentormoreofGrossReceipts,Contractorshall,inadditiontocompensatingtheCityfor lostfeesandapplicabledelinquencypenalties,reimbursetheCityscostofthereview.
33
TheCityofRidgecrest FranchiseAgreement
920
921 922 923 924 925 926 927 928 929 930 931 932 933 934 935 936 937 938 939 940 941 942 943 944 945
946 947 948 949 950 951 952 953 954 955
B.
956 957 958 959 960 961 962 963 964 965 966 967 968 969 970 971 972 D. C.
resolution on or before the execution of the Agreement. The maximum Rates for Rate Period OneshallbeeffectivefromtheCommencementDateofthisAgreementthroughJune30,2013. Rates for Subsequent Rate Periods. Maximum Rates for subsequent Rate Periods shall be adjustedannuallyinaccordancewiththisSection11.2andExhibitsB,B1,andB2. Themultiindexbasedadjustment,whichisdescribedinExhibitB1,involvesuseofvariouscost adjustmentfactors(suchasthepercentagechangeintheConsumerPriceIndex,thepercentage change in the Fuel Index, and percentage change in the Designated Disposal Facility Tipping Fees)tocalculateadjustedRates.SuchRateadjustmentcalculationsshallbeperformedinstrict conformancetotheproceduresdescribedinExhibitB1. Rate Structure. The City and Contractor shall meet and confer to change the relationship of individualRatesincomparisonwithotherRates.Anysuchchangeswouldoccurinconjunction with the annual Rate adjustment process described in Section 11.2.C or in conjunction with a Rate adjustment resulting from an extraordinary Rate adjustment in accordance with Section 11.3.ChangestotheRateschargedunderthenewstructureshallbecalculatedinsuchaway thattherevisedRatestructuregeneratesatleastthesameamountoftotalrevenuewhenthe numberofaccountsateachServiceLevelaremultipliedbytheRateschargedforeachService LevelandthetotalforallServiceLevelsaresummed.
973 974 975 976 977 978 979 980 981 982 983 984 985 986 987 988 989 990 991 992 993 994
The City Contract Manager shall have the right to request any other information that, in their sole judgment, is necessary to establish the reasonableness or accuracy of Contractors request for an extraordinary Rate increase. Contractors failure to fully cooperate in a timely manner with any reasonablerequestforinformationbytheCityContractManagermayresultineitherthedelayordenial oftheapprovaloftherequestforanextraordinaryRateincrease
36
TheCityofRidgecrest FranchiseAgreement
1005 1006
1007 1008 1009 1010 1011 1012 1013 1014 1015 1016 1017 1018 1019 1020 1021 1022 1023 1024 1025 1026 1027 1028 1029 1030 1031 1032 1033 1034 1035 1036 1037 1038 1039 1040 1041 1042
B.
D.
1043 1044 1045 1046 1047 1048 1049 1050 1051 1052 1053 1054 1055 1056 1057 1058 1059 1060 1061 1062 1063 1064 1065 1066 1067 1068 1069 1070 E.
Section40059.1,iftherequirementsoftheactarenotmet bytheContractorwithrespectto the waste stream Collected under this Agreement, and such failure is: (i) due to the failure of Contractor to meet its obligations under this Agreement; or, (ii) due to Contractor delays in providinginformationthatpreventsContractorortheCityfromsubmittingreportsrequiredby theActinatimelymanner. RelatedtoProposition218.ShouldtherebeaChangeinLaworanewjudicialinterpretationof ApplicableLaw,including,butnotlimitedto,ArticleXIIICandDoftheCaliforniaConstitution (CommonlyProposition218),whichimpactstheRatesfortheCollectionServicesestablishedin accordancewiththisAgreement,ContractoragreestomeetandconferwiththeCitytodiscuss theimpactofsuchChangeinLawoneitherPartysabilitytoperformunderthisAgreement. If, at any time, a Rate adjustment determined to be appropriate by both the City (which determination shall not be unreasonably withheld) and Contractor to compensate Contractor for increases in costs as described in this Agreement cannot be implemented for any reason, ContractorshallbegrantedtheoptiontonegotiatewiththeCity,ingoodfaith,areductionof servicesequaltothevalueoftheRateadjustmentthatcannotbeimplemented.IftheCityand Contractorareunabletoreachagreementonsuchareductioninservices,thenContractormay terminatethisAgreementupononehundredeighty(180)calendardayspriorwrittennoticeto theCity,inwhichcasetheContractorandtheCityshalleachbeentitledtopaymentofamounts dueforcontractperformancethroughthedateoftermination. Should a court of competent jurisdiction determine that the Contractor cannot charge and/or increase its Rates for charges related to Franchise Fees and Governmental Fees and charges, ContractorshallreducetheRatesitchargesCustomersacorrespondingamount. NothinghereinisintendedtoimplythatCaliforniaConstitution,ArticlesXIIICorXIIID,applyto theRatesestablishedforservicesprovidedunderthisAgreement;ratherthisSectionisprovided merelytoallocateriskofanadversejudicialinterpretationbetweentheParties. This provision (i.e., Section 12.1) will survive the expiration or earlier termination of this Agreement and shall not be construed as a waiver of rights by the City to contribution or indemnityfromthirdparties.
1080 1081 1082 1083 1084 1085 1086 1087 1088 1089 1090 1091 1092 1093 1094 1095 1096 1097 1098 1099 1100 1101 1102 1103 1104 1105 1106 1107 1108 1109 1110 1111 1112 1113 1114 1115 1116 1117 2.
Automobile Liability $2,000,000 combined single limit per accident for bodily injury andpropertydamage(includecoverageforHiredandNonownedVehicles). Workers Compensation Statutory Limits/Employers Liability $1,000,000/accident forbodilyinjuryordisease. EmployeeBlanketFidelityBond$500,000peremployeecoveringdishonesty,forgery, alteration,theft,disappearance,anddestruction(insideoroutside). Pollution Legal Liability $1,000,000 per claim/occurrence and $2,000,000 aggregate forbodilyinjury,propertydamage,andremediationofcontaminatedsite. The City, its officers, agents, employees, and volunteers shall be named as additional insuredonallbuttheworkerscompensationandprofessionalliabilitycoverages. Said policies shall remain in force through the life of this Agreement and, with the exceptionofprofessionalliabilitycoverage,shallbepayableonaperoccurrencebasis unlesstheCitysRiskManagerspecificallyconsentsinwritingtoaclaimsmadebasis. For all claims made coverage, in the event that the Contractor changes insurance carriers Contractor shall purchase tail coverage or otherwise provide for continuous coverage covering the Term of this Agreement and not less than three (3) years thereafter. Proof of such tail or other continuous coverage shall be required at any timethattheContractorchangestoanewcarrierpriortoreceiptofanypaymentsdue. The Contractor shall declare all aggregate limits on the coverage before commencing performance of this Agreement, and the Citys Risk Manager reserves the right to require higher aggregate limits to ensure that the coverage limits required for this Agreement as set forth above are available throughout the performance of this Agreement. ThedeductiblesorselfinsuredretentionsarefortheaccountofContractorandshallbe thesoleresponsibilityoftheContractor. Eachinsurancepolicyshallprovideor beendorsed tostatethat coverageshallnotbe suspended, voided, canceled by either Party, reduced in coverage or in limits except after thirty (30) calendar days prior written notice by certified mail, return receipt requested, has been given to the City Contract Manager ten (10) Business Days for delinquentinsurancepremiumpayments). InsuranceistobeplacedwithinsurerswithacurrentA.M.Bestsratingofnolessthan AVII,unlessotherwiseapprovedbytheCityRiskManager. The policies shall cover all activities of Contractor, its officers, employees, agents and volunteersarisingoutoforinconnectionwiththisAgreement. ForanyclaimsrelatingtothisAgreement,theContractorsinsurancecoverageshallbe primary,includingasrespectstheCity,itsofficers,agents,employees,andvolunteers. AnyinsurancemaintainedbytheCityshallapplyinexcessof,andnotcontributewith, insuranceprovidedbyContractorsliabilityinsurancepolicy. 39 TheCityofRidgecrest FranchiseAgreement
3.
4.
5.
6.
7.
8.
9.
1118 1119 1120 1121 1122 1123 1124 1125 1126 1127 1128 1129 1130 1131 1132 1133 1134 1135 1136 1137 1138 1139 1140 1141 B.
10.
The Contractor shall waive all rights of subrogation against the City, its officers, employees,agents,andvolunteers.
Endorsements.PriortotheeffectivedatepursuanttothisAgreement,Contractorshallfurnish the City Contract Manager with certificates or original endorsements reflecting coverage required by this Agreement. The certificates or endorsements are to be signed by a Person authorizedbythatinsurertobindcoverageonitsbehalf.Allcertificatesorendorsementsareto be received by, and are subject to the approval of, the City Risk Manager before work commences. Renewals. During the Term of this Agreement, Contractor shall furnish the City Contract Manager with certificates or original endorsements reflecting renewals, changes in insurance companies, and any other documents reflecting the maintenance of the required coverage throughout the entire Term of this Agreement. The certificates or endorsements are to be signedbyaPersonauthorizedbythatinsurertobindcoverageonitsbehalf. Workers'Compensation.Contractorshallprovideworkerscompensationcoverageasrequired byStatelaw,andpriortotheeffectivedatepursuanttothisAgreement,Contractorshallfilethe followingstatementwiththeCity. IamawareoftheprovisionsofParagraph3700oftheLaborCodethatrequireeveryemployer to be insured against liability for workers' compensation or to undertake selfinsurance in accordance with the provisions of that code, and I will comply with such provisions before commencinganyservicesrequiredbythisAgreement. The Person executing this Certificate on behalf of Contractor affirmatively represents that she/hehastherequisitelegalauthoritytodosoonbehalfofContractor,andboththePerson executing this Agreement on behalf of Contractor and Contractor understand that the City is relyingonthisrepresentationinenteringintothisAgreement.
C.
D.
1142 1143 1144 1145 1146 1147 1148 1149 1150 1151 1152 1153
40
TheCityofRidgecrest FranchiseAgreement
1154
1155 1156 1157 1158 1159 1160 1161 1162 1163 1164 1165 1166 1167 1168 1169 1170 1171 1172 1173 1174 1175 1176 1177 1178 1179 1180 1181 1182 1183 1184 1185 1186 1187 1188
2.
3.
(ii)
4.
ThewrittenadmissionbytheContractorthatitisbankrupt,orthefilingbytheContractorof avoluntarypetitionundertheFederalBankruptcyCode,ortheconsentbytheContractoror either Guarantor to the appointment by a court of a receiver or trustee for all or a substantial portion of its property or business, or the making by the Contractor or either Guarantor of any arrangement with or for the benefit of its creditors involving an assignmenttoatrustee,receiverorsimilarfiduciary,regardlessofhowdesignated,ofallor asubstantialportionoftheContractor'spropertyorbusiness. ThefinaladjudicationoftheContractorasbankruptafterthefilingofaninvoluntarypetition under the Bankruptcy Act, but no such adjudication shall be regarded as final unless and until the same is no longer being contested by the Contractor nor until the order of the adjudicationisnolongerappealable.
5.
41
TheCityofRidgecrest FranchiseAgreement
1189 1190 1191 1192 1193 1194 1195 1196 1197 1198 1199 1200 1201 1202 1203 1204 1205 1206 1207 1208 1209 1210 1211 1212 1213 1214 1215 1216 1217 1218 1219 1220 B.
6.
The failure of the Contractor to provide or maintain the Performance Bond required pursuanttoSection12.3hereof. AnyfailurebytheContractortocomplywiththeRidgecrestMunicipalCodeincluding,but not limited to, Sections 3501 through 35.112, Sections 35.701 through 35.704, and Sections13___through13___.
7.
Right to Terminate Upon Default. Upon a determination by the City Contract Manager that an EventofDefaulthasoccurred,theCityCouncilshallconductahearinguponten(10)daysnotice to the Contractor to determine if termination of the Agreement is in the best interests of the publichealth,safety,andgeneralwelfareofthecitizensoftheCity.Ifthefactfindermakessucha determination, the Contractor shall be deemed to have waived any right it may have under Applicable Law to notice of termination in excess of those notice provisions explicitly set forth herein. City'sRemediesCumulative:SpecificPerformance.TheCity'srighttoterminatethisAgreement under this Section 13.1 is not exclusive, and the City's termination of the Agreement shall not constituteanelectionofremedies.Instead,theyshallbeinadditiontoanyandallotherlegaland equitable rights and remedies which the City may have, including but not limited to specific performance,andfeesandexpensesincurredbyoronbehalfoftheCityinenforcingpaymentor performance of the Contractor's obligations hereunder if such nonperformance results in a judiciallydeterminedEventofDefaultbytheContractor. Possession of Property upon Termination or Suspension. In the event of termination or suspension for default, the City shall have the right to take possession of any and all of Contractor's equipment and other property used or useful in the Collection, Transportation, Processing, and Disposalof Solid Waste or Recyclable Materials and the billing and collection of fees for these services and to use such property. The City shall have the right to retain the possession of such property until such time as Contractor remedies the default or substitute services can be provided by another contractor. If the City retains possession of Contractors equipmentorotherpropertyaftertheperiodoftimeforwhichContractorhasalreadybeenpaid by means of bills issued in advance of providing service for the service involved, the Contractor shallbeentitledtothereasonablerentalvalueofsuchproperty(whichshallbeoffsetagainstany damages due the City for the Contractor's default). Contractor shall furnish the City with immediateaccesstoallofitsbusinessrecordsrelatedtoitsCustomersandbillingofaccountsfor Collectionservices.
C.
1230 1231 1232 1233 1234 1235 1236 1237 1238 1239 1240 1241 1242 1243 1244 1245 1246 1247 1248 1249 1250 1251 1252 1253 1254 1255 1256 1257 1258 1259 1260 1261 1262 1263 1264 1265 1266 1267 1268 1269
reasonably could be anticipated and anticipation that proof of actual damages would be costly or inconvenient.InsigningthisAgreement,eachPartyspecificallyconfirmstheaccuracyofthestatements madeaboveandthefactthateachPartyhadampleopportunitytoconsultwithlegalcounselandobtain anexplanationofthisLiquidatedDamageprovisionatthetimethatthisAgreementwasenteredinto. A. Excessive complaints. When Contractor or the City Contract Manager receives complaints from more than one percent (1%) of its client base within a six (6) month period, Contractor will be assessed twentyfive ($25) per complaint per occurrence during that period; and an additional twentyfive ($25) each twentyfour (24) hours until the complaint is reasonably resolved. For purposesofthissection,"complaints"shallmeansubstantiveandcredibleCustomernotifications to the Contractor or the City Contract Manager of missed pickups, property damage, missed commitments, employee misconduct or poor quality of service (e.g. litter on property or public rightofwayormisplacementofContainers). FailuretoremittheCityFees,orfilerequiredreportsinanaccurateandcompletemannerbythe fifthworkingdayfollowingtheduedateofsuchfeesorreports:fiftydollars($50)perdayforthe firstfive(5)days,thenfivehundreddollars($500)perdayforeachdayafterthefirstfive(5)days. Failure to provide access to Operating Assets or any other documents or information within fourteen(14)daysofarequestbytheCityContractManager:onehundreddollars($100)perday peroccurrence. Failure to charge a Customer at or below the maximum approved Rate: fifty dollars ($50) per occurrence per Customer where the number of Customers overcharged is less than twentyfive (25); five hundred dollars ($500) per occurrence per Customer where the number of Customers overchargedistwentyfive(25)ormore.Inaddition,Contractorshallberesponsibleforrefunding anyamountoverchargedtoeachCustomerdeterminedtobeovercharged.Contractorshallnotbe entitled to any refund from the City for Franchise Fees or other fees paid on overcharged amounts. FailuretoimplementanyoneofthestrategieslistedintheRecyclingPlan:fiftydollars($50)per dayforeachdayinexcessoffifteen(15)daysfollowingContractor'sreceiptofwrittennoticefrom City. Collectionoutsidepermittedhours:onehundreddollars($100)peroccurrence.
B.
C.
D.
E.
F.
IntheeventtheLiquidatedDamagespermittedtobeimposedunderthisSectionexceedtenthousand dollars($10,000)duringanythreehundredsixtyfive(365)dayperiodortheContractorhasviolatedthe requirementsforaparticularserviceindicatormorethanfour(4)timesinanAgreementYear,theCity Contract Manager may impose an additional penalty of twentyfive percent (25%) of the original amount of Liquidated Damages. For example, if the original amount of the Liquidated Damages totals onethousanddollars($1,000)thepenaltyamountwouldbetwohundredfiftydollars($250). The City Contract Manager shall give the Contractor written notice of charges levied pursuant to this Section.AnysuchdamagesshallbepaiddirectlytotheCity,andmaynotbeincludedbytheContractor asjustificationforanupwardadjustmentintheRatescheduleoroffsetagainstanyfees. The decision of the City Contract Manager shall be final and binding on the Contractor unless the ContractorfileswiththeClerkoftheCityCouncilaNoticeofAppealwithinfifteen(15)daysofreceiptof 43 TheCityofRidgecrest FranchiseAgreement
the City Contract Manager's decision. The Notice of Appeal shall be in writing and shall contain a detailedstatementofthebasisfortheappeal.UponreceiptoftheNoticeofAppeal,theCityContract Managershallsetthematterforapublichearingwithinthirty(30)days.TheCityContractManagershall givetheContractorandanyinterestedPersonrequestingthesame,ten(10)dayswrittennoticeofthe timeandplaceofthehearing.Atthehearing,theCityCouncilshalldetermine,basedontherecord,the appropriateactiontobetaken.ThedecisionoftheCityCouncilshallbefinalandconclusive.
1276 1277 1278 1279 1280 1281 1282 1283 1284 1285 1286 1287 1288 1289 1290 1291 1292 1293 1294 1295 1296 1297 1298 1299 1300 1301 1302 1303 1304 1305 1306
3. 4.
Whilethedelaycontinues,theContractororCityshallgivedailynoticetotheotherPartyupdating theinformationpreviouslysubmitted. In the event that either Party validly exercises its rights under this Section, the Parties hereby waiveanyclaimagainsteachotherforanydamagessustainedthereby. B. City's Right to Terminate. The partial or complete interruption or discontinuance of the Contractor'sservicescausedbyone(1)ormoreoftheeventsdescribedinthisSection13.3shall notconstituteadefaultbytheContractorunderthisAgreement.Notwithstandingtheforegoing, however,iftheContractorisexcusedfromperformingitsobligationshereunderbecauseofany Uncontrollable Circumstance, the City shall nevertheless have the right, in its sole discretion, to terminatethisAgreementbygivingsixty(60)daysnotice. WorkStoppages.NotwithstandinganythinginthisAgreementtothecontrary,anystrikes,work stoppages, or other labor disputes or disturbances occurring with respect to an) activity performed or to be performed by the Contractor or any of the Contractor's Subcontractors in connectionwiththeOperatingAssetsortheCollectionServicesandwhichlastbeyondseven(7) daysshallnotconstituteanEventofDefaultunderSection13.1.A. 44 TheCityofRidgecrest FranchiseAgreement
C.
1307 1308 1309 1310 1311 1312 1313 1314 1315 1316 1317 1318 1319 1320
However,intheeventofsuchoccurrencewhichpreventsordiminishestheabilityofContractorto Collect,TransportandDisposeofanyoralltheSolidWasteandRecyclableMaterialswhichitis obligated under this Agreement to Collect, Transport or Dispose of for a period of more than seventytwo (72) hoursandtheCityContract Manager,in hisorherdiscretion,shouldfindthat suchaccumulationendangersormenacesthepublichealth,safetyorwelfare,thenCityshallhave theright,upontwentyfour(24)hoursnoticetoContractor,tofindtheContractorinDefaultand to contract with any other third parties to Collect and Transport any and all Solid Waste and Recyclable Materials which Contractor would otherwise be obligated to Collect and Transport pursuanttothisAgreement.Contractoragreesthatinsuchevent,itwillfullycooperatewithCity and its thirdparty contractor to effect such transfer of operations in as smooth and efficient a fashionasispracticable.Allcosts,fees,ratesorotherexpensesincurredbyCityand/oritsthird partycontractorthatexceedthosethatwouldhavebeenincurredbyCityhadnosuchemergency arisenshallbetheresponsibilityoftheContractorandshallbepaidtoCitywithinthirty(30)days ofreceiptofwrittennoticetopay.
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B.
C.
If the Contractor fails or refuses to provide to the City adequate information to establish its ability to perform within thirty (30) days, such failure or refusal shall be an Event of Default for purposes of Section13.1.A.
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1394 1395 1396 1397 1398 1399 1400 1401 1402 1403 1404 1405 1406 1407 1408 1409 1410 1411 1412 1413 1414 1415 1416 1417 1418 1419
1420 1421 1422 1423 1424 1425 1426 1427 1428 1429 1430 1431 1432 1433 1434 1435 1436 1437 1438 1439 1440 1441 1442 1443 1444 1445 1446 1447 1448 1449 1450 B.
Any transfer of this franchise shall constitute the granting of a new franchise for purposes of MunicipalCodeSections35.104and35.105.Inadditiontotheproceduralrequirementsofthis Section,anytransferissubjecttotheproceduralrequirementsoftheseportionsoftheMunicipal Code. Furthermore, any assigned or transferred franchise is subject to the term limitations of Municipal Code Section 35.106 as calculated from the original date of the granting of this franchise. Consolidation,Merger,Sale,Transfer,andChangeinControl.Subjecttotheprovisionsofsection 3.7.Aabove,theContractorshallnot,withoutthepriorwrittenconsentoftheCitywhichmaybe withheld or delayed in its sole and absolute discretion, consolidate with or merge with another entityorpermitone(1)ormoreotherentitiestoconsolidatewithormergeintoit. TransferofVotingStock.TheCity'spriorwrittenconsent,whichmaybewithheldordelayedinits soleandabsolutediscretion,shallberequiredforthesaleortransferbyanymeans,whetherby agreement or by operation of law (including transfers resulting from death, bankruptcy or divorce),ofanyofthevotingstockoftheContractor. ReimbursementofCostRelatedtoAssignmentReview.IftheContractorrequeststheconsentof the City for any transaction described in Section 15.7 hereof, the proposed assignee, as a conditionofassignment,shallreimbursetheCityforallcostsandexpensesincurredbytheCityin reviewing, examining, and analyzing the request, including all direct and indirect administrative expenses of the City and consultants and attorneys fees and expenses. Along with its written requestforthereviewoftheassignment,ContractorshallremittoCityanassignmentreviewfee in the amount of one hundred thousand dollars ($100,000) which shall be intended to compensatetheCityofthecostsofitsreviewoftherequestedassignment.Suchfeeshallnotbe refundabletotheContractorintheeventthattheCitydetermines,initssolediscretion,thatthe proposedassignmentisunacceptable.IntheeventthattheCitystotalcostsforthereviewofthe assignmentexceedonehundredthousanddollars($100,000)theassigneeshallcompensatethe Cityforitsactualandreasonablecostswithinthirty(30)daysofreceivingtheCitysinvoice.Such costsshallbesupportedwithevidenceoftheexpenseorcostincurred. TransferFee.OnthedatetheCityapprovestheContractorswrittenrequestforanassignment, ContractorshallpaytheCityatransferfeeintheamountofone(1)percentoftheGrossReceipts forthemostrecentlycompletedRatePeriod.TheCitysapprovalofsuchanassignmentshallbe conditionedonthereceiptofthetransferfee.
C.
D.
E.
B.
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C.
Persons. Words importing Persons include firms, companies, associations, general partnerships, limitedpartnerships,trusts,businesstrusts,corporations,nonprofitcorporations,andotherlegal entitles,includingGovernmentalBodies,aswellasindividuals. Headings.Thetableofcontentsandanyheadingsprecedingthetextofthearticles,sections,and subsectionsofthisAgreementshallbesolelyforconvenienceofreferenceandshallnotconstitute apartofthisAgreement,norshalltheyaffectitsmeaning,construction,oreffect. Entire Agreement. This Agreement contains the entire agreement between the Parties hereto with respect to the transactions contemplated by this Agreement. Furthermore, nothing in this AgreementisintendedtoconferonanyPersonotherthanthePartiesheretoandtheirrespective successorsandassignshereunderanyrightsorremediesunderorbyreasonofthisAgreement. Reference to Days. All references to days herein are to calendar days, including Saturdays, Sundays,andholidays,exceptasotherwisespecificallyprovided. UnitsofMeasure.WeightsorvolumesdescribedhereinmaybereportedineithermetricorU.S. Standardtermsofmeasurement,unlessStateorFederallaworregulationspecifiesthesystemof measurementtobeused. Counterparts.ThisAgreementmaybeexecutedinanynumberoforiginalcounterparts.Allsuch counterpartsshallconstitutebutoneandthesameAgreement. Applicable Law. This Agreement shall be governed by and construed in accordance with Applicable Law. This Agreement is intended to be fully consistent with the requirements of the Ridgecrest Municipal Code and any subsequent amendments thereto. In the event there is an inconsistencyorconflictbetweenthisAgreementandtheMunicipalCode,theMunicipalCodeis controllingandshallsubstitutefortheinconsistentprovision. Severability. If any clause, provision, subsection, section, or article of this Agreement shall be determinedtobeinvalidbyanycourtofcompetentjurisdiction,thenthePartiesheretoshall: 1. Promptly meet and negotiate a substitute for such clause, provision, section, or article which shall, to the greatest extent legally permissible, effect the intent of the Parties therein. If necessary or desirable to accomplish item (1) above, apply to the court having declared suchinvalidityforajudicialconstructionoftheinvalidatedportionofthisAgreement. Negotiatesuchchangesin,substitutionsfororadditionsto,theremainingprovisionsofthis Agreement as may be necessary in addition to and in conjunction with items (1) and (2) above, to effect the intent of the Parties in the invalid provision. The invalidity of such clause, provision, subsection, section, or article shall not affect any of the remaining provisions hereof, and this Agreement shall be construed and enforced as if such invalid portiondidnotexist.
D.
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2.
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TheCityofRidgecrest FranchiseAgreement
Section 15.9:Jurisdiction
AnylawsuitsbetweenthePartiesarisingoutofthisAgreementshallbebroughtandconcludedinthe courts of Kern County in the State of California, which shall have exclusive jurisdiction over such lawsuits.Withrespecttovenue,thePartiesagreethatthisAgreementismadeinandwillbeperformed inKernCounty.
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TheCityofRidgecrest FranchiseAgreement
EXHIBIT A DEFINITIONS
For purposes of this Agreement, unless a different meaning is clearly required, the following words and phrases shall have the following meanings respectively ascribed to them by this Exhibit and shall be capitalized throughout this Agreement: AB 939" means the California Integrated Waste Management Act of 1989 (Division 30 of the California Public Resources Code), also commonly referred to as "AB 939," as amended, supplemented, superseded, and replaced from time to time. Administrative Fee means the quarterly fee used to offset expenses including staffing costs related to contract management, compliance, monitoring, and to enforce the Agreement with respect to any violations by third parties, including initiating and/or assisting in prosecuting enforcement actions. Affiliate(s) means any person, corporation or other entity directly or indirectly controlling or controlled by another person, corporation or other entity, or under direct or indirect common management or control with such person, corporation or other entity. As between any two (2) or more persons or entities, when ten percent (10%) of one is owned, managed, or controlled by another, they are hereunder Affiliates of one another. "Agreement" means this Solid Waste Management Agreement between the City and the Contractor. "Agreement Date" means the date of approval of this Solid Waste Management Agreement by the City. "Agreement Year" means a twelve-month period beginning on January 1 of each year and ending on the following December 31 each year during the Term of this Agreement, provided however, that the first Agreement Year will commence on the Agreement Date and the last Agreement Year will end on the date of termination of this Agreement. Annual Percentage Change means the average value of an index for the 12-month period ending December of the then-current Rate Period minus the average index value for the 12-month period ending December of the most-recently completed Rate Period, divided by the average index value for the 12-month period ending December of the most-recently completed Rate Period. The Annual Percentage Change shall be rounded to the nearest thousandth (1,000th). For example, if the Contractor is preparing its Rate application for Rates to be effective for Rate Period 2, the Annual Percentage Change in CPI shall be calculated as follows: [(Average CPI for January 2015 through December 2015) (Average CPI for January 2014 through December 2014)] / (Average CPI for January 2014 through December 2014)]. "Applicable Law" means any law, rule, regulation, requirement, guideline, permit, action, determination, or order of any Governmental Body having jurisdiction, applicable from time to time to the Collection Services; the Operating Assets; the siting, design, acquisition, permitting, construction, equipping, financing, Ownership, possession, shakedown, testing, operation, or maintenance of any of the Operating Assets; or any other transaction or matter contemplated hereby (including any of the
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EXHIBIT A DEFINITIONS
foregoing which concern health, safety, fire, governmental protection, accommodation of the disabled, labor relations, mitigation monitoring plans, building codes, non-discrimination and the payment of minimum wages, and further including the Kern County Code and the County Integrated Waste Management Plan and the Citys SRRE). Approved Recyclable Materials Processing Facility Means the {insert facility name} located at {insert facility address}. "Base Rate" means the Rate charged for basic Collection Service of Solid Waste including Recyclable Materials in a specified area, as authorized by the City, absent any discounts offered by the Contractor as specified in Appendix 2. Bureau of Labor Statistics (BLS) shall mean the U.S. Department of Labor, Bureau of Labor Statistics or its successor agency. Bin means a Container with capacity of approximately one (1) to six (6) cubic yards, with a hinged lid, and with wheels (where appropriate), that is serviced by a front end-loading collection Vehicle. "Bulk Container" means a Container or Bin having a capacity of 1.0 or more cubic yards. "Bulky Waste" means large and small household appliances, furniture, tires, carpets, mattresses, and similar large items of Solid Waste which cannot be contained within a standard Container, or which does not fit in or causes harm to collection Vehicles. Business Days mean days during which the City offices are open to do business with the public. CalRecycle means the Department of Resources Recycling and Recovery, and any Governmental Body which succeeds to its duties and powers under Applicable Law. Cart means a plastic Container with a hinged lid and wheels that is serviced by an automated or semiautomated Collection vehicle. A Cart has capacity of 96 gallons (or similar volumes). "CEQA" means the California Environmental Quality Act codified at California Public Resources Code Section 21000 et seq., as amended or superseded, and the regulations promulgated thereunder. "Change in Law" means any of the following events or conditions which has a material and adverse effect on the performance by the Contractor of the Collection Services (except for payment obligations): The enactment, adoption, promulgation, issuance, modification, or written change in administrative or judicial interpretation on or after the Agreement Date of any Applicable Law; or, The order or judgment of any Governmental Body, on or after the Agreement Date. to the extent such order or judgment is not the result of willful or negligent action, error or omission or lack of reasonable diligence of the City or of the Contractor, whichever is asserting the
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occurrence of a Change in Law provided, however, that the contesting in good faith or the failure in good faith to contest any such order or judgment shall not constitute or be construed as such a willful or negligent action, error or omission or lack of reasonable diligence. "City" means the City of Ridgecrest, California, a political subdivision of the State, acting through its City Council. "City Contract Manager" means the City Manager or their designated representative who is responsible for the administrative management of this Agreement. City Fees shall mean those fees described in Section 3.4of this Agreement. Collect or Collection (or any variation thereof) means the act of collecting Solid Waste and Recyclable Materials at the place of generation in the City of Ridgecrest. "Collection Premises" means the Residential Premises, Non-Residential Premises, or both for which the Contractor is authorized to provide Collection Services. "Collection Services" means all of the duties and obligations of the Contractor hereunder. Commercial shall mean of, from or pertaining to non-Residential Premises where business activity is conducted, including, but not limited to, retail sales, services, wholesale operations, manufacturing, and industrial operations, but excluding businesses conducted upon Residential property, which are permitted under applicable zoning regulations and are not the primary use of the property. For the purposes of this Agreement, Commercial also includes Multiple-Unit Dwellings with five (5) or more units. Compactor means a mechanical apparatus that compresses materials together with the Container that holds the compressed materials or the Container that holds the compressed materials if it is detached from the mechanical compaction apparatus. Compactors include two (2) to eight (8) cubic yard Bin Compactors serviced by front-end loader Collection Vehicles and ten (10) to fifty (50) cubic yard Drop Box Compactors serviced by roll-off Collection Vehicles. Consumer Price Index (CPI) shall mean the All Urban Consumers Index (CPI-U) compiled and published by the BLS, using the following parameters: Area San Francisco-Oakland-San Jose Metropolitan Area Item All Items Base Period Current 1982-84=100 Not seasonally adjusted Periodicity Bi-Monthly Series Identification Number CUURA422SA0
EXHIBIT A DEFINITIONS
Contractor means Contractor organized and operating under the laws of the State and its officers, directors, employees, agents, companies, related-parties, affiliates, subsidiaries, and Subcontractors. "County" means the County of Kern, California, a political subdivision of the State, acting through its Board of Supervisors. "Customer" means Person who subscribes for service with Contractor. Customer Type means the Customers sector category including, but not limited to, Residential, Commercial and City Facilities. Designated Collection Location" refers to the location, at each Collection Premises where Containers of Solid Waste and Recyclable Materials are customarily placed for collection, all in accordance with Section 4.5 herein. Designated Disposal Facility" means the facility designated by the City Contract Manager to which the Contractor shall transport Solid Waste and Residual Waste. Dispose or Disposal (or any variation thereof) means the final disposition of Solid Waste at a Disposal site. Drop Box means an open-top Container with a capacity of ten (10) to fifty (50) cubic yards that is serviced by a roll-off Collection Vehicle. Electronic Waste (E-Waste) means discarded electronic equipment including, but not limited to, televisions, computer monitors, central processing units (CPUs), laptop computers, computer peripherals (including external hard drives, keyboards, scanners, and mice), printers, copiers, facsimile machines, radios, stereos, stereo speakers, VCRs, DVDs, camcorders, microwaves, telephones, cellular telephones, and other electronic devices. Some E-Waste or components thereof may be Hazardous Waste and thus require special handling, Processing, or Disposal. "Emergency Services" means Solid Waste Collection Services, other than those specified under this grant of Agreement, provided during or as a result of an emergency which threatens the public health or safety, as determined by the City Contract Manager. Employment Cost Index (ECI) shall mean the index, compiled and published by the BLS with the following parameters: Compensation Total Compensation Ownership Private Industry Periodicity Index Number Group 210 - Service-Providing Industries Seasonally Adjusted
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Event of Default means only the events described in Sections 7.4 and 12.1.A. Excluded Waste means Hazardous Waste, Infectious Waste, U-Waste, E-Waste, volatile, corrosive, biomedical, infectious, biohazardous, and toxic substances or material, waste that Contractor reasonably believes would, as a result of or upon Disposal, be a violation of local, State or Federal law, regulation or ordinance, including land use restrictions or conditions, waste that cannot be Disposed of in Class III landfills, waste that in Contractors reasonable opinion would present a significant risk to human health or the environment, cause a nuisance or otherwise create or expose Contractor or City to potential liability; but not including de minimis volumes or concentrations of waste of a type and amount normally found in Residential Solid Waste after implementation of programs for the safe Collection, Recycling, treatment, and Disposal of batteries and paint in compliance with Sections 41500 and 41802 of the California Public Resources Code. Franchise Fee means the fee paid by Contractor to the City for the privilege to hold the rights granted by this Agreement. Fuel Index shall mean the Producer Price Index-Commodities for #2 Diesel Fuel compiled and published by the BLS, using the following parameters: Not Seasonally Adjusted Group Fuels and Related Products and Power Item #2 Diesel Fuel Base Date 8200
"Generator means any person that generates, produces, or discards Solid Waste and Recyclable Materials. "Governmental Body" means any federal, state, county, city or regional legislative, executive, judicial or other governmental board, agency, authority, commission, administration, court or other body, or any officer thereof acting within the scope of his or her authority. Governmental Fee shall mean any fee or surcharge imposed by a governmental entity other than the City including without limitation the State, County, or Local Enforcement Agency. Governmental Fees are a component of the Tipping Fee. "Greenwaste" means grass, lawn clippings, shrubs, plants, weeds, small branches and other forms of organic materials generated from landscapes or gardens, separated from other Solid Waste. Gross Receipts shall mean total cash receipts collected from Customers by the Contractor for the provision of services pursuant to this Agreement, without any deductions. Gross Receipts do not include revenues from the sale of Recyclable Materials.
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EXHIBIT A DEFINITIONS
"Hazardous Waste" means: A. Any waste which by reason of its quality, concentration, composition, or physical, chemical, or infectious characteristics may do either of the following: cause, or significantly contribute to, an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness, or pose a substantial threat or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise mismanaged, or any waste which is defined or regulated as a Hazardous Waste, toxic substance, hazardous chemical substance or mixture, or asbestos under Applicable Law, as amended from time to time, including, but not limited to: 1. 2. 3. 4. 5. B. The Resource Conservation and Recovery Act and the regulations contained in 40 CFR Parts 260-281. The Toxic Substance Control Act (L5 U.S.C. Section 2601 et seq.) and the regulations contained in 40 CFR Parts 761-766. The California Health & Safety Code Section 25117 (west 1992 & Supp. 1998). The California Public Resources Code Section 40141 (West 1996). Future additional or substitute federal, state or local laws pertaining to the identification, treatment, storage, or disposal of toxic substances or Hazardous Wastes.
Radioactive materials which are source, special nuclear, or by-product material as defined by the Atomic Energy Act of 1954 (42 U.S.C. Section 2011 et seq.) and the regulations contained in 10 CFR Part 40.
"Household Hazardous Waste" means waste materials determined by CalRecycle, the Department of Toxic Substances Control, the State Water Resources Control Board, or the Air Resources Board to be: A. B. C. Of a nature that they must be listed as hazardous in State statutes and regulations; Toxic/ignitable/corrosive/reactive; and, Carcinogenic/mutagenic/teratogenic
which are discarded from Residential Premises as opposed to businesses. Household Hazardous Waste shall not include unacceptable waste. Infectious Waste means biomedical waste generated at hospitals, public or private medical clinics, dental offices, research laboratories, pharmaceutical industries, blood banks, mortuaries, veterinary facilities and other similar establishments that are identified in Health and Safety Code Section 25117.5 as may be amended from time to time.
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"Insurance Requirement" means any rule, regulation, code, or requirement issued by any fire insurance rating bureau or anybody having similar functions or by any insurance company which has issued a policy with respect to the Operating Assets or the Collection Services. "Legal Proceeding" means every action, suit, litigation, arbitration, administrative proceeding, and other legal or equitable proceeding having a bearing upon this Agreement. Line of Business means any of the following services provided by the Contractor: Residential Solid Waste, Residential Recycling, Commercial Solid Waste, Commercial Recycling, Liquid Waste" means watered or dewatered sewage or sludge. Liquidated Damages means the amounts due by Contractor for failure to meet specific quantifiable standards of performance as described in Section 12.2. "Medical Waste" means waste capable of producing an infection or pertaining to or characterized by the presence of pathogens, including without limitation certain wastes generated by medical practitioners, hospitals, nursing homes, medical testing labs, mortuaries, taxidermists, veterinarians, veterinary hospitals and medical testing labs, and waste which includes animal wastes or parts from slaughterhouses or rendering plants. "Multiple-Unit Dwelling" means any building in the City, other than a Single-Unit Dwelling, lawfully occupied for human shelter. "Municipal Code" means the Citys Codified Ordinances, as the same may be amended, supplemented, or modified from time to time. "Non-Residential Premises" means those parcels of real property not classified under the use codes listed in the Schedule of Solid Waste Management Program Service Charges for Residential Property, attached hereto as Appendix 3, and made a part hereof, as amended by the City Council from time to time. "Non-Residential Waste" means Solid Waste and Recyclable Materials generated, produced, or discarded by or at Non-Residential Premises. "Operating Assets" means all real and personal property of all kind, which is owned, leased, managed, or operated by or under contract to the Contractor for providing the Collection Services, including without limitation the Containers, Vehicles, Transfer stations, maintenance and storage facilities, administrative facilities, and other equipment, machinery, parts, supplies and tools. "Owner" means the person holding the legal title or having a right to possession of the real property constituting the Collection Premises to which Solid Waste and Recyclable Materials Collection Service is provided or required to be provided hereunder.
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Party or Parties refers to the City and Contractor, individually or together. Pass-Through Cost means those City Fees, Tipping Fees, Governmental Fees, and other costs, as specifically identified in Exhibit B, that Contractor may include in the determination of Contractors Compensation but which are not included in the calculation of Contractors allowable profit. Person(s) means any individual, firm, association, organization, partnership, corporation, trust, joint venture, or public entity. Premises means any land or building in the City where Solid Waste and Recyclable Materials are generated or accumulated. "Process" or "Processing" refers to the removal of Recyclable Materials from Solid Waste prior to the delivery of such Solid Waste to the Designated Disposal Facility. "Processing Facility" refers to any facility that removes Recyclable Materials from Solid Waste and Recyclable Materials prior to the delivery of Solid Waste and Recyclable Materials to the City Disposal System. Rate means the maximum amount, expressed as a dollar unit, approved by the City that the Contractor may bill a Customer for providing services under this Agreement. A Rate has been established for each individual Service Level and the initial Rates for Rate Period One are presented in Exhibit C3. The Rates approved by City are the maximum Rate that Contractor may charge a Customer and Contractor may, in its sole discretion, charge any amount up to and including the maximum Rate approved by the City. Rate Adjustment Factor shall mean the amount, expressed as a percentage, by which each of the operating, disposal, processing, and fee components of each Rate are adjusted. The Rate Adjustment Factor for each component shall be calculated separately. Rate Period means a twelve (12) month period, commencing July 1 and concluding June 30, excepting Rate Period One. Rate Period One means the first Rate Period covered by this Agreement. Rate Period One shall begin on January 1, 2012 and shall end on June 30, 2013. "Recovered Materials" means the products, excluding Residual Waste, produced by the Processing of Recyclable Materials. "Recyclable Materials" means cardboard, paper, plastic, glass, aluminum or other metal materials having economic value contained within a load of Recyclable Materials, and may also include any other type of recyclable waste material agreed on by the Parties. {Proposer This list will be updated to include the specific materials accepted at the Recyclable Materials Processing Facility.}
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EXHIBIT A DEFINITIONS
"Recycle," "Recycled," or "Recycling" means the Process of collecting, sorting, cleansing, treating, reconstituting, or otherwise Processing materials that are or would otherwise become Solid Waste and returning them to the economic mainstream in the form of raw material for new, reused, or reconstituted products which meet the quality standards necessary to be used in the marketplace. "Recycling Plan" is the Contractors recycling plan presented in Exhibit C6. Residential shall mean of, from, or pertaining to a Single-Unit Dwelling Premises or Multi-Unit Dwelling Premises including Single-Family homes, apartments, condominiums, townhouse complexes, mobile home parks, and cooperative apartments. Residual Waste" means any material remaining after the Processing, by any means and to any extent of Solid Waste and Recyclable Materials. "Roll-Off" means Solid Waste pick-ups using Bulk Containers mounted on rail wheels or similar wheels and using special trucking equipment for transporting the Bins and Containers. "Routing and Collection System" means the Routing and Collection System for Solid Waste and Recyclable Materials which is in effect as of the effective date of this Agreement. "Scrap Materials" means any materials which are separated by type of Generator thereof from materials which otherwise are discarded or rejected by the Generator as Solid Waste and Recyclable Materials and which are sold or donated by the Generator to a private Recycler, scrap dealer, or salvager and Recycled. Scrap Materials shall not include any materials which (1) are commingled with Solid Waste and Recyclable Materials, or (2) are not commingled with Solid Waste and Recyclable Materials, but which are collected by any person other than the Contractor as part of any transaction or arrangement involving Solid Waste and Recyclable Materials, irrespective of whether the Generator pays or receives consideration in connection with such transaction or arrangement. Service Level refers to the size of a Customers Container and the frequency of Collection Services. "Single-Unit Dwelling" means a dwelling designed for or occupied exclusively for human shelter by one (1) family. "Single-Unit Container" means a Container of ninety-six (96) gallon capacity or less, usually used by a Single-Unit Dwelling or a small business, for Solid Waste and Recyclable Materials. "Solid Waste" means all garbage, refuse, rubbish, and other materials and substances discarded or rejected as being spent, useless, worthless, or in excess to the Generator thereof at the time of such discard or rejection and which are normally discarded by or collected from Residential Premises, NonResidential Premises and institutional establishments, which are acceptable at Class III landfills under Applicable Law, and which are originally discarded by the first Generator thereof and have not been previously Processed. Solid Waste includes Greenwaste, but does not include Hazardous Waste, Medical
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Waste, Liquid Waste, Scrap Materials, construction and demolition debris, or self-hauled waste. Solid Waste includes only those materials which were originally discarded by the first Generator thereof, prior to any Processing at any Collection Premises within the City. "Special Circumstance" means a circumstance which, when occurring, permits, but does not require the Contractor or the City to seek an adjustment in the Rates for Service, and which then requires City Contract Manager to review such application and make a recommendation to the City Council as to whether the Base Rate should be adjusted up or down, or remain unchanged. The continuing need for any and all previously-approved Special Circumstance Rate adjustments shall be reviewed at the time of each subsequent Rate adjustment. "Special Service" means a level of Solid Waste Collection Service in excess of that offered by the Contractor as its basic level of service, at an additional cost to the Customer and may include, but is not limited to, backyard pickup, additional Containers, or more frequent collections. "Special Service" does not mean the reasonable accommodation of an individual with a disability. The charge for any Special Service shall be reviewed by the City Contract Manager and may require a public hearing and the approval of the City Council. "SRRE" means the City's Source Reduction and Recycling Element approved by CalRecycle, as the element may be amended from time to time, all in accordance with AB 939 and regulations related thereto, as they may be amended from time to time. "Subcontractor" means every person (other than employees of the Contractor) employed or engaged by the Contractor or any person directly or indirectly in privity with the Contractor (including every Subcontractor of whatever tier) for any portion of the Collection Services, whether for the furnishing of labor, materials, equipment, supplies, services, or otherwise. Term means the Term of this Agreement, including extension periods if granted, as provided for in Section 3.2. Tipping Fee shall mean the Rate or Tipping Fee charged for each Ton or unit of material delivered to the Designated Disposal Facility or the Approved Recyclable Materials Processing Facility. The Parties acknowledge that the timing of changes to the Tipping Fees that are not owned or operated by Contractor or their subcontractor may not align with the review and adjustment of Rates under this Agreement. In the event that the Contractor begins to pay new Tipping Fees at another facility approved by the City, other than one owned and operated by Contractor or their Subcontractor, prior to the adjustment of Rates under this Agreement, the adjustment to the Rate Adjustment Factor shall consider that period. Alternatively, the City reserves the right to adjust Rates at any time during the year in order to address changes in Tipping Fees alone without adjusting any other component of Rates. The current approved Tipping Fees shall be the Tipping Fees in place on January 1 immediately preceding the submission of the Rate Application.
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EXHIBIT A DEFINITIONS
Ton or Tonnage means a unit of measure for weight equivalent to two thousand (2,000) standard pounds where each pound contains sixteen (16) ounces. Total Contractors Compensation shall mean the total amount to be used as a basis for determining the Rate Adjustment Factor. The Total Contractors Compensation does not reflect or in any way guarantee the Gross Receipts that are to be generated by Rates or retained by the Contractor. Transfer means the act of transferring the materials Collected by Contractor in their route vehicles into larger vehicles for Transport to other facilities for the purpose of Recycling or Disposing of such materials. Transport or Transportation (or any variation thereof) means the act of conveyance from one place to another or state of being Transported. Uncontrollable Circumstance means only one (1) or more of the following specified acts, events, or conditions, whether affecting the Operating Assets, the approved Processing Facility, the Designated Disposal Facility, the City, or the Contractor, to the extent that it materially and adversely affects the ability of the Contractor to perform any obligation under the Agreement (except for payment obligations), if such act, event or condition is beyond the reasonable control, and is not also the result of the willful or negligent act, error, or omission or failure to exercise reasonable diligence on the part of the Contractor, provided however, that the contesting in good faith or the failure in good faith to contest such action or inaction shall not be construed as willful or negligent action or a lack of reasonable diligence of the Contractor: A. An act of God (but not including reasonably anticipated weather conditions for the City), hurricane, landslide, lightning, earthquake, fire, explosion, flood, sabotage or similar occurrence, acts of a public enemy, extortion, war, blockade or insurrection, riot or civil disturbance. A Change in Law (as defined herein). Preemption of materials or services by a Governmental Body in connection with a public emergency or any condemnation or other taking by eminent domain of any portion of the Operating Assets. The first seven (7) days of a strike, work stoppage, or other labor dispute or disturbance occurring with respect to any activity performed or to be performed by the Contractor or any of the Contractor's Subcontractors in connection with the Operating Assets or the Collection Services, provided the Contractor has implemented a contingency plan satisfactory to the City Contract Manager.
B. C.
D.
It is specifically understood that only the acts or conditions specified above shall constitute Uncontrollable Circumstances. Without limiting the generality of the foregoing, the Parties acknowledge that none of the following acts or conditions shall constitute Uncontrollable Circumstances:
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EXHIBIT A DEFINITIONS
1. 2. 3. 4. 5. General economic conditions, interest or inflation rates, currency fluctuations or changes in the cost or availability of fuel, commodities, supplies, or equipment; Changes in the financial condition of the City, the Contractor, or any of its Affiliates, or any Subcontractor affecting their ability to perform their obligations; The consequences of errors, neglect, or omission by the Contractor, any of its Affiliates, or any Subcontractor of any tier in the performance of the Collection Services; The failure of the Contractor to secure patents or licenses in connection with the technology necessary to perform its obligations hereunder; Union work rules, requirements, or demands which have the effect of increasing the number of employees employed in connection with the Operating Assets, or otherwise increase the cost to the Contractor of operating and maintaining the Operating Assets or providing the Collection Services; Any strikes, work stoppages, or other labor disputes or disturbances occurring with respect to any activity performed or to be performed by the Contractor or any of the Contractor's Subcontractors in connection with the Operating Assets or the Collection Services and which last beyond seven (7) days; Any failure of any Subcontractor to furnish labor, materials, service, or equipment for any reason; Vehicle or equipment failure; Any impact of prevailing wage law, customs, or practices on the Contractor's construction or operating costs; or, Any act, event, or circumstance occurring outside of the United States.
6.
7. 8. 9. 10.
Universal Waste (U-Waste) means all wastes as defined by Title 22, Subsections 66273.1 through 66273.9 of the California Code of Regulations. These include, but are not limited to, batteries, fluorescent light bulbs, mercury switches, and E-Waste. "Vehicle" means any truck, rolling stock, or other Vehicle used by the Contractor in connection with Collection Services.
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Step 6: Calculate the adjusted value for each Rate charged under this Agreement. Adjusted Rates shall be calculated as follows: Adjusted Rate = Adjusted Operating Component + (Adjusted Disposal Component OR Adjusted Processing Component) + Adjusted Fee Component For example, assuming: 1. The Rate being adjusted is a Solid Waste Collection Rate 2. Adjusted Operating Component = $51.35 (as calculated in Step 2) 3. Adjusted Disposal Component = $21.62 (as calculated in Step 3) 4. Adjusted Fee Component = $5.20 (as calculated in Step 5) 5. Adjusted Rate = $51.35 + $21.62 + $5.20 = $78.17
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2. Calculate Allowable Costs. Contractor shall calculate Allowable Total Annual Cost of Operations for the most-recently completed Rate Period by adjusting Actual Total Annual Cost
PRELIMINARY DRAFT Franchise Agreement, Exhibit B2 Page B2-1
c. d. e. f. g. h.
i.
j. k. l.
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r.
3. Forecast Total Annual Cost of Operations. Forecasted Total Annual Cost of Operations for the coming Rate Period shall be calculated based on Allowed Total Cost of Operations for the most-recently completed Rate Period determined in accordance with A.2 above. The forecasts shall be performed in the following manner: a. Forecasted labor-related costs shall be calculated for the coming Rate Period by multiplying the allowed labor-related costs, both direct and allocated, for the most-recently completed Rate Period by one (1) plus the Annual Percentage Change in the ECI. The result of this calculation shall be multiplied once more by one (1) plus the Annual Percentage Change in the ECI. Forecasted Vehicle-related costs (excluding fuel and depreciation costs) shall be calculated for the coming Rate Period by multiplying the allowed Vehicle-related costs, both direct and allocated, for the most-recently completed Rate Period by one (1) plus the Annual Percentage Change in the CPI. The result of this calculation shall be multiplied once more by one (1) plus the Annual Percentage Change in the CPI. Forecasted fuel costs shall be calculated for the coming Rate Period by multiplying the allowed fuel costs, both direct and allocated, for the mostrecently completed Rate Period by one (1) plus the Annual Percentage Change in the Fuel Index. The result of this calculation shall be multiplied once more by one (1) plus the Annual Percentage Change in the Fuel Index. Forecasted other costs shall be calculated for the coming Rate Period by multiplying the allowed other-related costs, both direct and allocated, for mostrecently completed Rate Period by one (1) plus the Annual Percentage Change in CPI. The result of this calculation shall be multiplied once more by one (1) plus the Annual Percentage Change in the CPI.
Franchise Agreement, Exhibit B2 Page B2-3
b.
c.
d.
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f.
g.
Contractor shall be entitled to Profit on Forecasted Total Annual Cost of Operations. Profit shall be calculated using an operating ratio of XXXX percent (XX.X%) as proposed by Contractor and described in Exhibit C2. Profit shall be calculated using the following formula: Profit = (Forecasted Total Annual Cost of Operations/Operating Ratio)-Forecasted Total Annual Cost of Operations For Example: 1. Assuming an operating ratio of 92% 2. Assuming a Forecasted Total Annual Cost of Operations of $1,000,000 3. Profit = (1,000,000/.92)-1,000,000=86,956.52 C. Forecast Pass-Through Costs.
Pass-Through Costs for the coming Rate Period shall be forecasted in the following manner: 1. Forecasted Disposal Cost. Annual Forecasted Disposal Cost = (Tipping Fee at approved Disposal Facility) x (total Tons of Solid Waste Collected for the most-recently completed calendar year). Forecasted Recyclable Materials Processing Cost. Annual Forecasted Recyclable Materials Processing Cost = (Tipping Fee at approved Recyclable Materials Processing Facility) x (total Tons of Recyclable Materials Collected for the most-recently completed calendar year)
2.
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Forecast City Fees 1. 2. Forecasted Franchise Fee. Forecasted Franchise Fees, which shall equal XXXXXXX percent (XX.XX%) of the Forecasted Total Contractors Compensation. Forecasted Administrative Fee. The Forecasted Administrative Fee shall be in an amount prescribed by the City. If no revised Administrative Fee is provided by the City, the Administrative Fee paid to the City during the prior Rate Period shall remain in effect. Forecasted Total City Fees. Forecasted Total City Fees shall equal the sum of the Forecasted Franchise Fee and Forecasted Administrative Fee.
3.
RATE ADJUSTMENT FACTORS A. Operating Component Rate Adjustment Factor. The Operating Component Rate Adjustment Factor shall be determined by dividing the sum of the Forecasted Total Annual Cost of Operations, Forecasted Profit, Forecasted Interest Expense, Forecasted Direct Lease Costs, and Forecasted Allocated Lease Costs by the sum of the Actual Total Annual Cost of Operations, Profit, Interest Expense, Direct Lease Costs, and Allocated Lease Costs, rounded to the nearest thousandth. B. Disposal Component Rate Adjustment Factor. The Disposal Component Rate Adjustment Factor shall be determined by dividing the Forecasted Disposal Cost by the Disposal Component portion of Rate Revenues received over the most recent twelve (12) months, rounded to the nearest thousandth (1000th). The Disposal Component shall only be applied to Solid Waste Collection Rates and shall not be included in the calculation of Recyclable Materials Collection Rates or Special Charges. C. Processing Component Rate Adjustment Factor. The Processing Component Rate Adjustment Factor shall be determined by dividing the Forecasted Processing Cost by the Processing Component portion of Rate Revenues received over the most recent twelve (12) months, rounded to the nearest thousandth (1000th). This calculation shall be performed for the Forecasted Recyclable Materials Processing Cost for determination of Recyclable Materials Collection Rates. The Processing Component Rate Adjustment Factor shall not be applied to Solid Waste Collection Rates or Special Charges. D. Fee Component Rate Adjustment Factor. The Fee Component Rate Adjustment Factor shall
Franchise Agreement, Exhibit B2 Page B2-5
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2. Customer Report Number of Customers by Customer Type. Number of Containers at each Service Level by Customer Type and program. Summarizing the total gallons of Cart service, cubic yards of Bin service, and pulls and cubic yards or Tons of Drop Box and Compactor service by Customer Type. Report should calculate the average volume of service received per Single-Family Customer and Commercial Customer. Number of Bulky Item Collection events by Customer Type. Participation percentage by program and Customer Type where the participation percentage is calculated as the number of Customers who have subscribed to or requested service under the program relative to the number of Customers of that Customer Type subscribing to Solid Waste service. Contractor shall not be required to submit participant Customer names and addresses
Franchise Agreement, Exhibit D Page D-1
PRELIMINARY DRAFT
4. Customer Service Report Number of Customer calls listed separately by complaints and inquiries (where inquiries include requests for Recycling information, Rate information, etc.). For complaints, list the number of calls separately by category (e.g., missed pickups, scheduled cleanups, billing concerns, damage claims, etc.). Number of new service requests for each Customer Type and program. Number of events of Discarded Materials being tagged for non-Collection summarized by the reason for tagging (e.g., inclusion of non-Recyclable materials, improper setout, Hazardous Waste, etc.). Number of hits and unique visitors to the Contractors website.
5. Education and Outreach Report Provide a status report of Contractors actual activities completed compared to the annual public education plan. For each completed item, document the results including what date the activity was performed, how many Customers were targeted or participated, and what methods were used to accomplish the task, if different from the plan. Summarize the Recycling opportunity assessments provided to Customers by identifying the number of Recycling opportunity assessments conducted each month in the most-recently completed quarter, and contact information including address, contact names, and telephone number of Persons contacted. Include any Service Level changes resulting from such visits. Dates, times, and group names of meetings and events attended.
6. Pilot and New Programs Report For each pilot and/or new program, provide activity related and narrative reports on goals, milestones, and accomplishments. Describe problems encountered, actions taken and any recommendations to facilitate progress. Describe vehicles, personnel, and equipment utilized for each program. 7. Revenue Report Provide a statement detailing Gross Receipts from all operations conducted or permitted pursuant to this Agreement as required by Section 7.8.
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Operational Information: A. Routes by Customer Type: 1. Number of routes per day. 2. Types of vehicles. 3. Crew size per route. 4. Number of full time equivalent (FTE) routes.
Franchise Agreement, Exhibit D Page D-4
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Personnel: 1. Organizational chart. 2. Job classifications and number of employees (e.g., administrative, Customer service representatives, drivers, supervisors, educational staff). 3. Wages by job classification. 4. Number of FTE positions for each job classification. 5. Number of hours per job classification per year. Productivity Statistics: 1. Average Number of accounts per route per day by Customer Type. 2. Average number of setouts per route per day by Customer Type. 3. Average Tons per route per day by vehicle type (i.e. side-loader, front-loader, roll-off). 4. Average cubic yards of Collection scheduled per route. Vehicles: 1. List of collection vehicles including year purchased and mileage. 2. Average age of mobile equipment with oldest and newest. Operational Changes: 1. Number of routes. 2. Staffing. 3. Supervision. 4. Collection services.
C.
D.
E.
Variance Analysis. Provide the following variance analysis for each Customer Type. For any variances greater than five percent (5%) annually, Contractor shall provide sufficient rationale to support variance: 1. 2. Variance analysis comparing current Rate Period to each of the prior Rate Periods of Agreement Variance analysis comparing current Rate Period to each of the future projected Rate Periods.
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B. Support Facilities
1. Address of collection vehicle parking, maintenance, washing, and route staff parking facility(ies) 2. Address of administrative office 3. Address of billing office 4. Address of customer service office
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Proposer: Please provide the operating basis for your proposed costs (as identified in Form 5) and rates (as identified in Forms 6 and 7). These operating estimates should also be consistent with the Staffing Plan (Form 3) and Equipment Plan (Form 4). Please ONLY complete the yellow shaded cells and do not adjust the formulas in other cells.
REPORT FOR 12-MONTH PERIOD From January 1, 2012 to December 31, 2012
Solid Waste
TOTAL
1
2 3 4 5 6 7 8 9 10 11 12 13 14 16 17
# of weekly accounts/customers # of regular route personnel Labor hours/day/person Total labor hours/year
Route Information
# of routes per weekday # of persons/route # of route hours/day/route # of route hours/year # of FTE routes # of lifts/pulls per week for all routes # of lifts/pulls per year for all routes # of lifts/pulls route hour
15 Total Collected
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Proposer: Please provide the operating basis for your proposed costs (as identified in Form 5) and rates (as identified in Forms 6 and 7). These operating estimates should also be consistent with the Staffing Plan (Form 3) and Equipment Plan (Form 4). Please ONLY complete the yellow shaded cells and do not adjust the formulas in other cells.
Notes for Form 2: Line 1 - Should equal the number of customer serviced on a weekly basis. This should tie to the estimates presented in Forms 6 and 7. Line 2 - Data to be input by proposer. Data should reflect the assumptions used for the basis of the costs proposed in Form 5. Line 3 - Identify number of hours per day each regular route employee will work each day (including breaks, pre- and post-route checks, etc., excludes casual/pool personnel). Line 4 - Should equal Line 2 * Line 3 * 260 days Line 5 - Information is to be reported for collection routes only and does not include any support (e.g., container delivery routes, cleanup routes, missed pickup routes etc.) Line 6 - Data to be input by proposer. Data should reflect the assumptions used for the basis of the costs proposed in Form 5. Lines 7 - Identify number of hours per day each route will take to complete (including collection time and hauling time to transfer station, landfill, or processing site). Line 8 - Should equal Line 5 * Line 6 * Line 7 * 260 days Line 9 - Should equal Line 8/2080 hours per year Line 10 - Data to be input by proposer. Data should reflect the assumptions used for the basis of the costs proposed in Form 5. Line 11 - Should equal Line 10 * 52 weeks. Line 12 - Should equal Line 11/ Line 8 Line 13 - Data to be input by proposer. Data should reflect the assumptions used for the basis of the costs proposed in Form 5. Line 14 - Data to be input by proposer. Data should reflect the assumptions used for the basis of the costs proposed in Form 5. Line 15 - Should equal Line 13 + Line 14. Line 16 - Data to be input by proposer. Processing residue is the material disposed from the recyclable materials processing facility which cannot be marketed. Line 17 - Should equal Line 14 - Line 16 Pulls = pull and return etc. Full Time Equivalent (FTE) = 40 hours per week, 2,080 hours per year
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# of Regular Personnel
# of Casual/Pool
Total 0 0 0 0 0 0 0
0 # of Employees
0 0
Page 1 of 1
Actual Spare
New
Total 0 0 0 0
0 0 0 0 0 0 0
0 0 0 0 0 0 0
0 $ 0 $ 0 0 0 0 0 $
Other Vehicles
Pickup Trucks Container Distribution Mobile Service Truck Other (specify): __________________ Other (specify): __________________ Subtotal 0 0
Containers
Cart service Solid Waste 96-gallon Recyclable Material 96-gallon Subtotal Bin service 1.5 cubic yard 3 cubic yards 6 cubic yards Subtotal Drop Box service 10 cubic yards 15 cubic yards 20 cubic yards 25 cubic yards 30 cubic yards 35 cubic yards 40 cubic yards Other (specify): __________________ Other (specify): __________________ Subtotal 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 $ 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 $ 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 $ -
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Proposer: Please provide the cost basis for your proposed rates below for each of the lines of service and each cost category identified. Please ONLY complete the shaded cells and do not adjust the formulas or dollar amounts populated in cells which are not shaded.
Commercial / Multifamily
Bulky Waste Program Solid Waste
$0 $0 $0 $0 $0
$0 $0 $0 $0 $0
$0 $0 $0 $0 $0
$0 $0 $0 $0 $0
$0 $0 $0 $0 $0
$0 $0 $0 $0 $0
$0 $0 $0 $0 $0
$0 $0 $0 $0 $0
Total Pass-Through Costs Total Costs before City Fees* City Fees
Franchise Fee Contract Administration Fee
$0
$0
$0
$0
$0
$0
$0
$0
---------
---------
---------
---------
---------
---------
---------
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Instructions to Proposer: Enter the estimated number of accounts for all service levels. Only enter rates for 96-gallon Cart with 1 pickup per week and 1 cubic yard Bin with 1 pick-up per week solid waste service; and other services which are shaded below. All other rates and the estimated annual rate revenues will be calculated based on those input rates. Rates shall be proposed for the first rate year of the Franchise starting January 1, 2012.
Type of Service
Receptacle
Rate Factor
Total Rate
1 1 1
0 0 0
$0 $0 $0
1 2 3 4 5 1 2 3 4 5 1 2 3 4 5
1.00 1.92 2.82 3.66 4.46 1.90 3.62 5.14 6.46 7.58 3.60 6.42 9.04 12.06 15.08
$0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00
0 0 0 0 0 0 0 0 0 0 0 0 0 0 0
$0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0
Regularly Scheduled Recyclable Materials Cart Services (50% of Comparable Solid Waste Rate)
Recyclable Materials Recyclable Materials Recyclable Materials Recyclable Materials
One 96-gallon cart One 96-gallon cart Additional 96-gallon cart Additional 96-gallon cart
0 0 0 0
$0 $0 $0 $0
Regularly Scheduled Recyclable Materials Bin Services (50% of Comparable Solid Waste Rate)
Recyclable Materials Recyclable Materials Recyclable Materials Recyclable Materials Recyclable Materials Recyclable Materials
1.5 cubic yard container 1.5 cubic yard container 3 cubic yard container 3 cubic yard container 6 cubic yard container 6 cubic yard container
0 0 0 0 0 0
$0 $0 $0 $0 $0 $0
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Type of Service
Receptacle
Rate Factor
Total Rate
Other Services
Extra bulky waste collection frequency (beyond 3 per year) Extra Appliance or Bulky Waste Item Collection (beyond 1 per event) Extra bulky waste collection volume (beyond 3 cubic yards per event) On-Property Service Extra can or bag of Solid Waste collected on customer's regularly scheduled collection day Extra can or bag of Solid Waste collected on a day other than the customer's regularly scheduled collection day N.A.
Per occurrence
N.A.
$0.00
N.A.
N.A.
N.A.
Per item
N.A.
$0.00
N.A.
N.A.
N.A.
N.A.
$0.00
N.A.
N.A.
N.A. N.A.
$0.00 $0.00
0 N.A. N.A.
$0
Per occurrence
N.A.
$0.00
N.A.
N.A.
Extra pick-up for on-call service or overage pick-up service for regular container customers
N.A.
$0.00
N.A.
N.A.
N.A. N.A.
N.A. N.A.
$0.00 $0.00
N.A. N.A.
N.A. N.A.
Does proposer wish to include any other Rates? (circle one: YES / NO) If the answer to the above question is YES, provide a list of any and all other charges the proposer wishes to include in its proposal on a separate sheet along with the proposed Rates.
$0
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Instructions to Proposer: Enter Operating and Tipping Fee Component for each regularly scheduled service and oncall service which are shaded below. Rates shall be proposed for the first rate year of the Franchise starting January 1, 2012.
Type of Service
Receptacle
Service Frequency
Cost/Pull
Cost/Ton
Regularly Scheduled Collection Service (Monthly Rate not including rental & delivery fees which are charged separately) Solid Waste Solid Waste Solid Waste Solid Waste Recyclable Material Recyclable Material Recyclable Material Recyclable Material
3 cubic yard compactor 6 cubic yard compactor 10 cubic yard compactor 20 cubic yard compactor 3 cubic yard compactor 6 cubic yard compactor 10 cubic yard compactor 20 cubic yard compactor
0 0 0 0 0 0 0 0
0 0 0 0 0 0 0 0
$ $ $ $ $ $ $ $
On-Call Collection Service (Per Pick-Up Rate not including rental and delivery fees which are charged separately) Solid Waste Solid Waste Solid Waste Solid Waste Solid Waste Solid Waste Solid Waste Solid Waste Recyclable Material Recyclable Material Recyclable Material Recyclable Material Recyclable Material Recyclable Material Recyclable Material Recyclable Material Other Charges Does proposer wish to include any other charges? (circle one: YES / NO) If the answer to the above question is YES, provide a list of any and all other charges the proposer wishes to include in its proposal on a separate sheet along with the proposed charges.
10 cubic yard drop box 20 cubic yard drop box 30 cubic yard drop box 40 cubic yard drop box 3 cubic yard compactor 6 cubic yard compactor 10 cubic yard compactor 20 cubic yard compactor 10 cubic yard drop box 20 cubic yard drop box 30 cubic yard drop box 40 cubic yard drop box 3 cubic yard compactor 6 cubic yard compactor 10 cubic yard compactor 20 cubic yard compactor
On-call pickup On-call pickup On-call pickup On-call pickup On-call pickup On-call pickup On-call pickup On-call pickup On-call pickup On-call pickup On-call pickup On-call pickup On-call pickup On-call pickup On-call pickup On-call pickup
$0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00
$0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00
$0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00
N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A.
0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0
N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A.
N.A.
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Proposer's Name FOR:SOLIDWASTEANDRECYCLABLEMATERIALCOLLECTIONANDDIVERSIONPROGRAMS Proposer declares under penalty of perjury under the laws of the State of California that this proposal is not made in the interest of or on behalf of any undisclosed person, partnership, company, association, organization or corporation; that such proposal is genuine and not collusive or sham; that said Proposer has not directly or indirectly induced or solicited any other Proposer to put in a false or sham proposal and has not directly or indirectly colluded, conspired, connived, or agreed with any Proposer or anyone else to put in a sham proposal, or that anyone shall refrain from submitting a proposal; that said Proposer has not in any manner directly or indirectly sought by agreement, communication, or conference with anyone to fix the proposal price of said Proposer or of any other Proposer, or to fix any overhead, profit, or cost element of such proposal price, or of that of any other Proposer, or to secure any advantage against the public body awarding the Contract of anyone interested in the proposed Contract; that all statements contained in such proposal are true, and further, that said Proposer has not directly or indirectly submitted his proposal price or any breakdown thereof, or the contents thereof, or divulged information or data relative thereto, or paid and will not pay any fee in connection therewith, to any corporation, partnership, company, association, organization, proposal depository, or to any member or agent thereof, or to any other individual except to any person or persons as have a partnership or other financial interest with said Proposer in this general business.
The above Non-Collusion Affidavit is part of the proposal. Signing this proposal on the signature page thereof shall also constitute signature of this Non-Collusion Affidavit. Proposers are cautioned that making a false certification may subject the certifier to criminal prosecution.
Secretary