HomeMy WebLinkAboutAgreement A-17-570 with Tule Trash Company.pdf
1
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
AMENDED AND SUCCESSOR EXCLUSIVE SERVICE AREA AGREEMENT
FOR SOLID WASTE, RECYCLABLE MATERIALS, GREEN WASTE
AND ORGANIC MATERIALS SERVICES
THIS AMENDED AND SUCCESSOR AGREEMENT (“Agreement”) is made and
entered into in Fresno, California, on this 31st day of October, 2017, between the
County of Fresno, a political subdivision of the State of California, (hereinafter called
"COUNTY"), and Tule Trash Company, LLC, a California limited liability company,
(hereinafter called "CONTRACTOR"), with reference to the following facts.
WITNESSETH:
WHEREAS, the Legislature of the State of California, by enactment of the
California Integrated Waste Management Act of 1989 (AB 939), set forth in Public
Resources Code Sections 40000, et seq., declares that it is within the public interest to
authorize and require local agencies to make adequate provision for Solid Waste
handling within their jurisdiction; and
WHEREAS, AB 939, as amended, requires the COUNTY to reduce the amount
of Solid Waste being landfilled by fifty percent (50%) by the year 2000; and
WHEREAS, the COUNTY in October of 2002 was issued an AB 939 Compliance
Order from the California Integrated Waste Management Board (CIWMB) for failing to
make a good faith effort to implement Solid Waste diversion programs to reach the fifty
percent (50%) Solid Waste diversion mandate; and
WHEREAS, the COUNTY, through a Local Assistance Plan (LAP), was required
to develop and implement a range of Solid Waste diversion programs to reach the 50%
Solid Waste diversion mandate; and
WHEREAS, one of the seventeen (17) programs established by the COUNTY
under the LAP was the Exclusive Service Area Program (“ESAP”); and
WHEREAS, as part of the ESAP, on August 30, 2005, COUNTY and Sequoia
Disposal (“the original contractor”) entered into an Exclusive Service Area Program
2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Agreement (Agreement No. 05-419, hereinafter “the Original Contract”), which provided
for a twelve (12) year Base Term with the original contractor’s performance thereunder
to commence on the operative date of February 27, 2006; and
WHEREAS, during the term of the Original Contract (Agreement No. 05-419
between COUNTY and the original contractor) and pursuant to the provisions of Section
11.5, the COUNTY’s Board of Supervisors on April 12, 2012 approved an assignment
by Sequoia Disposal to CONTRACTOR of Agreement No. 05-419, pursuant to which
CONTRACTOR assumed, in their entirety, all of the duties and obligations thereunder
of the original contractor and assignor (Sequoia Disposal), throughout the Exclusive
Service Area as designated pursuant thereto, which duties and obligations following the
approval of such assignment were performed at all times by CONTRACTOR for the
remainder of the Original Contract term, such that COUNTY and CONTRACTOR shall
hereinafter be referred to collectively as “the Parties”; and
WHEREAS, the Original Contract by its terms provided that COUNTY may, in its
discretion, approve one ten (10) year extension of its original Base Term; and
WHEREAS, CONTRACTOR has accepted COUNTY’s offer to extend their
contractual relationship for such additional ten year term (“Extension Term”), and the
Parties further have agreed to certain modifications to the terms and conditions of the
Original Contract, all of which shall take effect as of the commencement of the ten-year
Extension Term on February 28, 2018; and
WHEREAS, the COUNTY, in its LAP, is required to divert residential and
commercial Solid Waste; and
WHEREAS, the CONTRACTOR is qualified and agrees to provide Solid Waste
Collection Services pursuant to the terms and conditions stated in this Agreement; and
WHEREAS, the COUNTY of Fresno Board of Supervisors previously has
determined, and by its approval and execution of this Agreement hereby reiterates, that
the public health, safety and welfare of its residents require that certain Solid Waste
Collection Services, as specified in this Agreement, be provided by an Exclusive
3
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Service Area contract.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
promises herein, the COUNTY and the CONTRACTOR agree as follows:
ARTICLE 1
DEFINITIONS
For purposes of this Agreement the following words or phrases shall have the
following meanings unless any such word is otherwise specifically defined herein or
unless it is obvious from the context hereof that another meaning is necessarily
intended. To the extent of any inconsistency between the definitions of the following
terms provided in this Article and the use or definition of those terms that may appear in
related COUNTY ordinances or regulations, the following definitions shall be used in the
interpretation of this Agreement.
“AB32” means the California Global Warming Solutions Act of 2006, (Chapter 488,
Statutes of 2006), which requires California to reduce its greenhouse gas emissions to
1990 levels by 2020.
“AB 341” means the California legislation (Stats. 2006, Ch. 476), as it may be
amended from time to time, that, among other things, added Chapter 12.8 of Part 3 of
Division 30 of the Public Resources Code (commencing with section 42649) imposing
mandatory commercial recycling requirements and mandating that each jurisdiction
implement an outreach and education program and monitor compliance with the
mandatory commercial recycling requirements.
“AB 939” means the California Integrated Waste Management Act of 1989 (California
Public Resources Code, Division 30, commencing with Section 40000), as amended,
supplemented, superseded, and replaced from time to time.
“AB 939 Service Fee” means the portion of Rate Revenues specified in Section 3.5
and due and payable to the COUNTY from Rate Revenues.
“AB 1826” means Chapter 727, Statutes of 2014 [Chesbro, AB 1826], commonly
referred to as “AB 1826”, as amended, supplemented, superseded, and replaced from
4
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
time to time, that, among other things, added Chapter 12.9 (commencing with Section
42649.8) to Part 3 of Division 30 of the Public Resources Code imposing requirements
that each jurisdiction implement an organic waste recycling program and provide for
education, outreach and monitoring of businesses subject to the requirements.
“Agreement” means this Amended and Successor Agreement between the COUNTY
and CONTRACTOR for the provision of the Collection Services as specified herein,
including all exhibits and future amendments.
“Applicable Law” means all Federal, State and local laws, ordinances, regulations,
rules, orders, judgments, decrees, resolutions, permits, approvals, or other type of
requirement imposed by any governmental agency having jurisdiction over the
collection and disposition of Solid Waste, Recyclable Materials, Green Waste and
Organic Materials, including those that are in force and effective as of the Effective
Date, as well as such additions and changes thereto as become effective by means of
their enactment, amendment, issuance or promulgation at any time after the Effective
Date and during the Term of this Agreement.
“Base Term” means the initial twelve (12)-year Term of the Original Contract, pursuant
to which CONTRACTOR’s performance thereunder commenced on its operative date of
February 27, 2006.
“Best Efforts” as used in this Agreement with regard to performance of
CONTRACTOR’s obligations to Divert materials, shall mean at a minimum to
competently undertake each of the programs for which materials Diversion is required
hereunder and to perform materials Diversion activities for the program in a manner
which is equal to or exceeds industry standards within California for communities which
are in compliance with AB 939, AB341 and AB1826 diversion requirements.
“Bin” means a receptacle for Solid Waste provided by the CONTRACTOR unless
owned by the Customer, having a capacity less than ten (10) cubic yards and that
generally has wheels, a handle for ease of movement and a tight -fitting, attached lid,
and is designed to be dumped mechanically into a front-loading or rear-loading
5
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Collection vehicle.
“Bin Service” means the provision of Collection Services using Bins.
“Board of Supervisors” means the governing legislative body of the County of Fresno.
“Bulky Items” means all discarded household waste matter that is too large to be
placed in a Cart, including large household appliances, appliances containing
chlorofluorocarbons, furniture, carpets, mattresses, and similar large items that require
special handling due to their size, and which typically will be discarded by Customers in
connection with Community Clean-Up Services. Bulky Items shall not include Excluded
Waste.
“Cart” means wheeled Containers of approximate thirty (30)-, sixty (60)-, and ninety
(90)-gallon capacity provided by CONTRACTOR to Customers for Collection of Solid
Waste, Recyclables, Green Waste and Organic Materials.
“Cart Service” means provision of Collection Services using Carts, and charged at a
Rate based on Solid Waste Cart size.
“CERCLA” means the Comprehensive Environmental Responsibility Compensation
and Liability Act, 42 United States Code Section 9601, et seq., as amended or
superseded, and the regulations promulgated thereunder.
“Change in Law” means the following events or conditions that have a material and
adverse effect on the performance by CONTRACTOR of its obligations (other than its
remittance obligations) under this Agreement:
1. Enactment, adoption, promulgation, issuance, modification, or written
change in administrative or judicial interpretation of any Applicable Law
occurring on or after the Effective Date; or
2. Order or judgment of any governmental body, issued on or after the
Effective Date, to the extent such order or judgment is not the result of
willful or negligent action, error or omission or lack of reasonable diligence
of COUNTY or of CONTRACTOR, whichever is asserting the occurrence
of a Change in Law; provided, however, that the contesting in good faith or
6
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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.
“Change in Scope” is a significant change in the type or level of Collection Services for
which CONTRACTOR may be compensated under Article 7, as provided in Section 5.6.
“Collection” (and “Collect,” “Collected,” and “Collecting”) means the pickup and
removal by CONTRACTOR from its Customers’ premises of Solid Waste, Recyclable
Materials, Green Waste, Organic Materials or other material specified in this Agreement
and transportation of such material to a Disposal or Transfer Facility, Green Waste or
Organic Materials Processing Facility, or a Recycling Facility, as appropriate and
consistent with CONTRACTOR’s obligations hereunder.
“Collection Materials” means all Solid Waste, Recyclables, Green Waste, Organic
Materials or other materials specified in this Agreement generated in the Exclusive
Service Areas of the COUNTY and included within the scope of this Agreement as
provided in Section 3.2. The term “Collection Materials” specifically does not include
Hazardous Waste or any other type of Excluded Waste.
“Collection Services” means all of the duties and obligations of CONTRACTOR
relating to its responsibilities for Collection as specified in this Agreement, and
associated with this Agreement.
“Community Clean-Up Services” means the collection of non-Excluded Waste items
for residential Cart Customers, separate from those gathered through weekly Collection
Services. The amount and type of materials are specified in Exhibit A. CONTRACTOR
shall charge Customers Rates, separate from and in addition to the Rate Revenues.
“Compactor,” “Compactors,” “Compactor Service” means any Bin or other similar
Container incorporating a built-in mechanism to reduce waste volume by crushing
action or other compacting method.
“Construction and Demolition Debris” means the debris from used construction
materials, dredging, grubbing, and rubble resulting from constructing, remodeling,
7
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
repair, razing, renovation, demolition, excavation or construction clean-up activities at
residential, commercial or governmental buildings, and any other structure or pavement.
“Consumer Price Index” or “CPI” means the Consumer Price Index, All Urban
Consumers for San Francisco-Oakland-San Jose, CA, Standard Metropolitan Statistical
Area as published by the United States Department of Labor, Bureau of Labor
Statistics, or any successor index.
“Containers” means Bins and Carts used to provide Solid Waste, Recyclables, Green
Waste or Organic Materials Services.
“CONTRACTOR” means the Party identified as CONTRACTOR on page 1 of this
Agreement.
“COUNTY” means the legal entity known as the COUNTY of Fresno, California, a
political subdivision of the State of California.
“County” means the geographical area within the territorial boundaries of the County of
Fresno, as it exists now or in the future.
“COUNTY Representative” means the Director of the Department of Public Works and
Planning, or his/her designee, who may be a COUNTY official or an agent of COUNTY
specifically designated to serve as the COUNTY Representative and authorized to
enforce the terms of this Agreement on COUNTY’s behalf, as further set f orth in Section
11.15, below.
“COUNTY Solid Waste Surcharges” means the charges imposed by the COUNTY on
all Solid Waste generated within the Southeast Regional Solid W aste Commission area
for closure and post-closure maintenance of the closed COUNTY landfill(s) in the
Southeast Regional Solid Waste Commission area and the charges imposed by the
COUNTY on all Solid Waste generated and Collected in the County, including the
fifteen (15) incorporated cities, for which the Solid Waste is Disposed in non-COUNTY
operated facilities and used for Countywide Solid Waste management program
activities.
“CPI Adjustment Factor” means 75 percent (75%) for Cart Rates and 65 percent
8
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
(65%) for Bin Rates, of one hundred percent (100%) of the percentage of CPI by which
each Rate is adjusted annually.
“Customer” means the person or entities receiving Collection Services.
“Debris Box Services” means the collection, transportation, and disposal of materials
placed in containers of ten (10) cubic yards or greater.
“Delivery” means a Customer’s deposit of Solid Waste, Recyclables, Green Waste or
Organic Materials in a Container at a location designated for Collection consistent with
COUNTY’s codes or ordinances.
“Director” means the Director of the Department of Public Works and Planning of
Fresno County.
“Disposal,” “Disposing,” “Dispose,” or “Disposed” means the final disposition of
Solid Waste Collected by CONTRACTOR at a Disposal or Transfer Facility.
“Disposal or Transfer Facility” means the fully permitted Disposal or Transfer
facility(ies) designated by CONTRACTOR to which the CONTRACTOR will transport all
Solid Waste required to be Collected by CONTRACTOR under this Agreement.
“Disposal Tipping Fee Component” means the component of each Rate related to
the COUNTY’s Disposal tipping fee, as provided in Article 7.
“Diversion,” “Divert” means the tonnage or percentage of Collected Collection
Materials that are not Disposed.
“Effective Date” means the date on which this Agreement is fully executed by the
Parties, which shall be deemed to be the date of its approval on behalf of COUNTY by
its Board of Supervisors, as reflected on page 1 of this Agreement. (Unless it is either
expressly specified otherwise or the context clearly requires a different interpretation, all
references herein to “Effective Date” will be to this Amended and Successor Agreement,
and not to the Original Contract.)
“Excluded Waste,” means
x Hazardous Waste,
x Medical and Infectious Waste,
9
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
x Volatile, corrosive, biomedical, infectious, biohazardous, and toxic substances or
material,
x Household Hazardous Waste,
x Waste that CONTRACTOR reasonably believes would, as a result of or upon
disposal, be a violation of Federal, State, or local law, regulation or ordinance,
including land use restrictions or conditions,
x Waste that in CONTRACTOR's reasonable opinion would present a significant
risk to human health or the environment, cause a nuisance or otherwise create or
expose CONTRACTOR or COUNTY to potential liability, and
x Special Waste.
“Exclusive Service Area” means the territory within which the CONTRACTOR shall
conduct Collection Services identified within COUNTY unincorporated area, as
described in Exhibit C and as such limits may change from time to time due to
annexations or other means. When used in the plural in this Agreement, the term
(“Exclusive Service Areas”) refers to all such regions within the County considered
collectively, within which exclusive Collection Services are to be provided, either by
CONTRACTOR pursuant to this Agreement, or by another solid waste enterprise
pursuant to a substantially identical agreement with COUNTY.
“Extension” or “Extended Term” means the Extension of the Term, for the period of
ten (10) years beyond the Base Term, which has been offered by the COUNTY and
accepted by the CONTRACTOR.
“Fee for Service Recycling” means any activity relating to the collection of
Recyclables and Recyclable Materials that is solicited, arranged, brokered, or provided
by any person or combination of persons utilizing a bin, barrel, or other container in
exchange for the payment, directly or indirectly, of a fee, charge, rebate, discount,
commission, or other consideration, in any form or amount.
“Green Waste” means biodegradable materials including branches (less than three [3]
inches in diameter), brush, cut flowers, dead plants, grass clippings, house plants,
10
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
leaves, prunings, shrubs, weeds, wood (uncoated and untreated), wood chips, yard
trimmings, Christmas trees (placed in Carts/Bins, with no stands, flocking, and/or
decorations, and cut into two [2]-foot sections), provided that larger items such as tree
stumps and intact dead trees are considered Bulky Items as defined herein. Green
Waste shall not include Excluded Waste.
“Green Waste Processing Facility” means the fully permitted facility(ies) used by
CONTRACTOR for handling, processing, and preparing Green Waste for marketing
through beneficial reuse such as mulching, composting, or processing for alternative
daily cover, and/or for use as biomass fuel.
"Hazardous Waste" shall have the meaning set forth in California Code of Regulations,
Title 14, Division 7, Chapter 3, Article 4, (most notably Section 17225.32) and Health
and Safety Code Section 25117, or in CERCLA, or in their successor laws and
regulations as may be amended from time to time, whichever definition is in the opinion
of the COUNTY more inclusive.
“Household Hazardous Waste” shall have the meaning set forth in California Code of
Regulations, Title 14, Division 7, Chapter 7, Article 1.1, Section 18502 or successor
laws and/or regulations, as such provisions may be amended from time to time.
“Liquidated Damages” means the damages for specified violations of the terms of the
Agreement as enumerated in Exhibit E and levied by COUNTY against CONTRACTOR.
“Material Breach” shall have the meaning set forth in Section 10.1.A.1.
“Medical and 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.
“Operative Date” means the date from and after which CONTRACTOR shall be
responsible to provide Collection Services to Customers in accordance with the terms of
this Amended and Successor Agreement, which shall be no later than sixty (60) days
after the Effective Date of this Amended and Successor Agreement. The Operative
11
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Date shall be specified by COUNTY in a letter to CONTRACTOR, sufficiently in
advance thereof to allow CONTRACTOR’s compliance with the requirement in Section
5.1 to provide thirty (30) days’ notice to Customers. It shall be CONTRACTOR’s
responsibility to make all necessary and appropriate preparations, between the Effective
Date and the Operative Date, to ensure that CONTRACTOR’s readiness to provide all
Services to Customers as required hereunder by the Operative Date.
“Organic Materials” or “Compostable Materials” food waste, Green Waste,
landscape and pruning waste, nonhazardous wood waste, and food-soiled paper that is
mixed in with food waste.
“Organic Materials Processing” means the fully permitted facility(ies) selected by
CONTRACTOR for handling, processing, and preparing Organic Materials for
marketing.
“Original Contract” means the ESAP Agreement entered into between the Parties on
August 30, 2005 (Agreement No. 05-419) for performance by CONTRACTOR of solid
waste collection services within a designated Exclusive Service Area as specified
therein, which provided for a twelve (12) year Base Term with CONTRACTOR’s
performance thereunder to commence on the operative date of February 27, 2006.
“Party” or “Parties” means COUNTY or CONTRACTOR individually, or COUNTY and
CONTRACTOR.
“Pass-Through Expenses” means, and is strictly limited to include only, (i) facility
tipping fees at COUNTY-owned or COUNTY-operated Disposal Facilities, (ii) increases
in COUNTY Solid Waste Surcharges from their level on the Effective Date, and (iii)
increases in the AB 939 Service Fee from its level on the Effective Date.
“Quarterly Remittance(s)” means the quarterly payment made to the COUNTY by the
CONTRACTOR as specified in Article 6.
“Rate Revenues” means the revenues billed to and received from Customers by
CONTRACTOR for provision of Collection Services, Special Services, and from
Community Clean-Up Services under Article 3, subject to the COUNTY’s approved and
12
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
published maximum rate schedules. The term “Rate Revenues” includes all such
revenues received under this Agreement, regardless of whether the Solid Waste
collected by CONTRACTOR for which such payment was received is ultimately
landfilled in Fresno County or at a disposal site located in another county.
“Rates” or “Rate” means the amount each Customer is billed by CONTRACTOR,
subject to the COUNTY’s approved and published maximum rate schedules (as such
rate schedules may be adjusted during the Term under Articles 5 and/or 7).
"Recyclable Materials" or "Recyclables" means discarded materials from the
Customer intended for and capable of being Recycled, and that are separated, set
aside, handled, packaged, offered, or otherwise Delivered for Collection by a Customer
in a manner different from Solid Waste. Exhibit A includes the list of Recyclable
Materials that may be set out for Collection by Customers receiving Single-Stream
Recycling Service. Recyclable Materials and Recyclables shall not include Excluded
Waste. The Parties intend that Solid Waste and Solid Waste Handling, as those terms
are defined herein, shall be broadly interpreted and include, without limitation, any
activity relating to the collection of Recyclables and Recyclable Materials that is
solicited, arranged, brokered, or provided by any person or combination of persons
utilizing a bin, barrel, or other container in exchange for the payment, directly or
indirectly, of a fee, charge, rebate, discount, commission, or other consideration, in any
form or amount (“fee for service recycling”).
“Recycle”, “Recycled”, “Recycling” means the process of Collection, sorting,
cleansing, treating and reconstituting of Recyclable Materials that would otherwise be
disposed of, and returning them to the economy in the form of raw materials for new,
reused, repaired, refabricated, remanufactured, or reconstituted products. The
Collection, transportation, or Disposal of Solid Waste that is neither intended for nor
capable of effective and advantageous reuse does not constitute Recycling, as that
term is defined and employed in this Agreement.
“Recycling Facility” means the fully permitted facility(ies) selected by CONTRACTOR
13
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
for handling, processing, and preparing Recyclable Materials for marketing.
“Refuse” means waste material intended for Disposal and including: (1) all putrescible
and non-putrescible wastes, except liquid-carried industrial wastes or sewage hauled as
an incidental part of septic tank or cesspool-cleaning service; (2) garbage (i.e.,
putrescible animal, fish, food, fowl, fruit or vegetable matter, or any residual material
thereof, resulting from the preparation, storage, handling or consumption of such
substances); and (3) rubbish (such as printed materials, paper, pasteboard, rags, straw,
used and discarded clothing, packaging materials, ashes, floor sweepings, glass, and
other waste materials). Refuse shall not include any Excluded Waste.
“Residual” or “Residue” means materials which remain after processing Recyclable
Materials which cannot be Recycled, marketed, or otherwise utilized, including, but not
limited to, materials such as rocks, contaminated paper, putrescibles, and other debris.
All such Residue shall be subject to the provisions of Section 4.8 as they pertain to
materials delivered by CONTRACTOR to be processed for Recycling.
“SB 1383” means Chapter 395, Statutes of 2016 (Lara, SB1383), commonly referred to
as “SB1383”, as amended, supplemented, superseded, and replaced from time to time,
that, among other things, adopted methane emissions reduction goals that include the
following targets to reduce the landfill disposal of organics:
(1) A 50-percent reduction in the level of the statewide disposal of organic waste from
the 2014 level by 2020.
(2) A 75-percent reduction in the level of the statewide disposal of organic waste from
the 2014 level by 2025.
“Self-Haul” or “Self-Hauler” means that any residential or commercial generator of
Solid Waste may itself (for a commercial generator, this means performance of its
Disposal Services by an individual listed on its payroll as an employee), but not through
an agent, transport and dispose of those Collection Materials generated within the
unincorporated area of the COUNTY by the household or business enterprise of that
generator only. Any such “Self-Hauler” who elects to forego the Collection Services
14
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
offered by CONTRACTOR shall be obligated to comply with all applicable legal
requirements governing such transport and disposal, including but not limited to
COUNTY reporting requirements.
“Service Rate Area” or “Service Rate Areas” means the four territorial zones within
the County’s unincorporated area identified in Exhibit C-1 (designated therein as “Zone
1”, “Zone 2a”, “Zone 2b” and “Zone 3”.”. When used in the plural in this Agreement, the
term refers to all four zones identified in Exhibit C-1 considered collectively, and when
used in the singular the term shall be deemed to refer solely to the specific “Service
Rate Area” zone that may encompass CONTRACTOR’s Exclusive Service Area.
“Single-Stream Recycling” means the use of a single Container to collect two or more
types of Recyclables.
"Solid Waste" generally means Solid Waste as defined in California Public Resources
Code, Division 30, Part 1, Chapter 2 (particularly Section 40191) and regulations
promulgated thereunder (except as to any types of waste specifically excluded from the
scope of the definition by the terms of this Agreement), and without limitation includes
the following: (1) Refuse; (2) Bulky Items; and (3) electronic materials classified as
universal wastes pursuant to CCR Title 22, Division 4.5 (e-waste). For purposes of this
Agreement, Solid Waste shall not include Excluded Waste.
“Solid Waste Handling Services” means the collection, transportation, storage,
transfer, or processing of Solid Waste for residential, commercial, institutional, or
industrial users or customers.
“Special Services” means those various Collection Services that CONTRACTOR is
not required to provide under this Agreement, but which CONTRACTOR shall offer to its
Customers upon the Customer’s request for the charges specified in Exhibit D-2.
Examples of such optional Special Services may include on-call Bulky Items pick-up (in
addition to the required Bulky Items pick-up provided as part of periodic Community
Clean-Up Services), or side-yard services for Customers other than the disabled and
elderly. The Special Services that CONTRACTOR offers to its customers will be the
15
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
same as those offered by other exclusive provider(s) of Collection Services within the
Service Rate Area. Those Special Services that CONTRACTOR chooses to offer to its
Customers, and the Special Service Fees to be charged therefor, are listed in Exhibit D-
2 hereto.
“Special Service Fees” are charges for Special Services, which are specific services
that CONTRACTOR may provide to its customers at its option, as defined above. Such
fees may be charged in addition to the Rates CONTRACTOR may charge Customers
for those Collection Services that CONTRACTOR is required to provide hereunder. Any
increase in Special Service Fees for those Special Services for which a specific charge
is established in Exhibit D shall be determined as provided in Paragraph 7.2.C.
“Special Waste” includes any materials that under current or future statute, ordinance
or regulation require the application of special treatment, handling, or disposal practices
beyond those normally required for Solid Waste. As defined for purposes of this
Agreement, “Special Waste” shall be deemed to include, without limitation, all of the
following: flammable waste; liquid waste transported in a bulk tanker; sewage sludge;
pollution control process waste; residue and debris from cleanup of a spill or release of
chemical substances, contaminated soil, waste, residue, debris, and articles from the
cleanup of a site or facility formerly used for the generation, storage, treatment,
Recycling, reclamation, or Disposal of any other Special Wastes; dead animals;
manure; waste water; explosive substances; radioactive substances; fluorescent tubes;
Construction and Demolition Debris; and abandoned or discarded automobiles, trucks,
motorcycles or parts thereof, including tires.
“Substantial Evidence” means such evidence as would convince a reasonable person
and on which reasonable persons would concur as to the inference or conclusion to be
drawn from such evidence.
“Term” means the Base Term (12 years) and any Extension (10 years, which
hereinafter may be referenced as the “Extension Term”), as provided in Article 3.
“Uncontrollable Circumstance” means an act of God, including landslides, lightning,
16
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
fires, storms, floods, pestilence, and earthquakes; explosions, sabotage, civil
disturbances, acts of a public enemy, wars, blockades, eminent domain, condemnation
or other taking, or other events of a similar nature, not caused or maintained by the
COUNTY or CONTRACTOR, which event is not reasonably within the control of the
CONTRACTOR, and only to the extent such event has a material adverse effect on the
ability of the CONTRACTOR to perform Collection Services. Events that could or
should have been prevented through reasonable precaution, including compliance with
agreements and applicable laws, shall not be considered Uncontrollable Circumstances.
Labor unrest, including but not limited to strike, work stoppage or slowdown, sick-out,
picketing, or other concerted job action conducted by the CONTRACTOR’s employees
or directed at the CONTRACTOR, or a subcontractor, shall not be considered an
Uncontrollable Circumstance.
“Unforeseen Circumstance” means an event beyond the CONTRACTOR’s
reasonable control that may support the initiation of an annual Rate review request.
Examples of such events include: a change in the cost of providing Collection Services
due to an increase in Federal, State or local fees or surcharges at the Disposal or
processing site or a Change in Law; a Change in Scope as provided in Article 5; and a
Change in Law for which CONTRACTOR compliance is mandatory, and that results in
significant documented increases in the specific cost of providing Collection Services.
“Working Days” means, unless otherwise specified, Monday through Friday.
ARTICLE 2
CONTRACTOR’S REPRESENTATIONS AND WARRANTIES
2.1 RELIANCE BY COUNTY
CONTRACTOR understands and acknowledges that, in entering into this Agreement
and performing obligations set forth therein, COUNTY is relying on the representations
and warranties made or confirmed herein by CONTRACTOR, including but not limited
to those listed in this Article 2. In the event any of such representations or warranties
are not satisfied or are found by reasonable and good faith determination of COUNTY to
17
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
be materially inaccurate or untrue, such occurrence or determination shall constitute a
Material Breach and grounds for termination of this Agreement, at COUNTY’s option,
under Article 10. Provided, however, that if COUNTY elects to declare
CONTRACTOR’s default on the basis of a violation of this Article 2, such default may be
subject to the cure provisions set forth in Article 10.
2.2 BUSINESS STATUS
CONTRACTOR is a California limited liability company duly organized, validly existing,
and in good standing under the laws of the State of California. CONTRACTOR is
registered with the California Secretary of State and is qualified to transact business in
the State of California, and CONTRACTOR agrees to deliver to COUNTY the name and
California-based address of CONTRACTOR’s agent for receipt of service of process.
CONTRACTOR has the power to own its properties and to carry on its business as now
owned and operated and as required by this Agreement. CONTRACTOR must also be
a business lawfully permitted by the COUNTY to conduct Collection Services, as
prescribed by the terms and conditions of this Agreement. CONTRACTOR agrees that
this Agreement is not made in the interest of, or on behalf of, any undisclosed person,
partnership, company, association, organization, or corporation. CONTRACTOR has
not unlawfully colluded, conspired, connived, or agreed directly or indirectly with any
person, partnership, company, association, organization, or corporation to secure any
improper advantage against COUNTY, or in contravention of the public interest.
2.3 LEGAL AUTHORITY TO BIND CONTRACTOR
CONTRACTOR has the authority to enter into and perform its obligations under this
agreement. CONTRACTOR has taken all actions required by law, its articles of
organization and/or written operating agreement, or otherwise, in order to authorize the
execution of this agreement. Each individual signing this agreement represents and
warrants that he or she is duly authorized to execute and deliver this agreement on
behalf of CONTRACTOR in accordance with CONTRACTOR’s articles of organization
and/or written operating agreement. This agreement shall constitute a valid and binding
18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
obligation of CONTRACTOR enforceable in full accordance with its terms, except only
to the extent limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other laws of general application relating to of affecting enforcement of creditors’ rights.
2.4 NO CONFLICT
CONTRACTOR warrants and represents that neither the execution nor the delivery by
CONTRACTOR of this Agreement nor the performance by CONTRACTOR of its
obligations hereunder: (i) conflicts with, violates, or results in a breach of any law or
governmental regulation applicable to CONTRACTOR; (ii) conflicts with, violates, or
results in a breach of any term or condition of any judgment, decree, agreement
(including, without limitation, the certificate of incorporation of CONTRACTOR), or
instrument to which CONTRACTOR is a party or by which CONTRACTOR or any of its
properties or assets are bound, or constitutes a default under any such judgment,
decree, agreement or instrument; or (iii) will result in the creation or imposition of any
encumbrance of any nature whatsoever upon any of the properties or assets of
CONTRACTOR.
2.5 NO LITIGATION
CONTRACTOR warrants and represents that, as of the Operative Date of the
Agreement, there is no action, suit, or other proceeding at law or in equity, or to the best
of CONTRACTOR’s knowledge, any investigation, before or by any court or
governmental authority, pending or threatened against CONTRACTOR which is likely to
result in an unfavorable decision, ruling, or finding which would materially and adversely
affect the validity or enforceability of this Agreement or any such agreement or
instrument entered into by CONTRACTOR in connection with the transactions
contemplated hereby, or which could materially and adversely affect the ability of
CONTRACTOR to perform its obligations hereunder or which would have a material
adverse effect on the financial condition of CONTRACTOR.
2.6 NO LEGAL PROHIBITION
CONTRACTOR has no knowledge of any applicable law in effect on the Operative Date
19
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
that would prohibit the performance by CONTRACTOR of this Agreement and the
transactions contemplated hereby.
2.7 CONTRACTOR’S INVESTIGATION
CONTRACTOR has made an independent investigation of the conditions and
circumstances relating to the Agreement and the work to be performed by
CONTRACTOR hereunder.
2.8 INFORMATION SUPPLIED BY CONTRACTOR
The information supplied by CONTRACTOR in all written submittals made in connection
with procurement of CONTRACTOR’s services, including CONTRACTOR’s proposal,
and negotiation and execution of this Agreement, and all representations and warranties
made by CONTRACTOR throughout this Agreement are true, accurate, correct, and
complete in all material respects on and as of the Effective Date of this Agreement.
2.9 INSURANCE AND PERFORMANCE ASSURANCE REQUIREMENTS
CONTRACTOR hereby represents that CONTRACTOR has the capability and intent,
and accordingly shall submit, no later than thirty (30) days prior to the Operative Date,
the endorsements of insurance coverage required pursuant to Article 9; and further
represents that CONTRACTOR shall maintain all such insurance coverage, to the
satisfaction of COUNTY, throughout the Base Term and any Extension thereof.
CONTRACTOR additionally represents that CONTRACTOR has the capability and
intent, and accordingly shall submit pursuant to Article 9 and no later than thirty (30)
days prior to the Operative Date, a letter of credit or performance bond equal to the
lesser of fifty thousand dollars ($50,000) or twenty-five percent (25%) of
CONTRACTOR's Annual Gross Receipts over the previous three years under this
Agreement, or other performance guarantee; and further represents that
CONTRACTOR shall maintain such performance guarantee to the satisfaction of
COUNTY, throughout the Base Term and any Extension thereof.
2.10 CONTRACTOR’S REPRESENTATIVE
As required by Section 11.15, CONTRACTOR shall, by the Operative Date, designate
20
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
in writing a responsible officer who shall serve as the representative of CONTRACTOR
and who shall have authority in all daily operational matters related to the Agreement.
COUNTY may rely upon action taken by such designated representative as the action
of CONTRACTOR except for actions not taken within the scope of this Agreement. The
Managing Agent (or such other officer as may have been specifically designated by
CONTRACTOR), shall be the initial designated representative of CONTRACTOR.
CONTRACTOR shall notify COUNTY Representative prior to, or at the time of a
change, in the designated representative.
2.11 WAIVER OF CERTAIN RIGHTS
CONTRACTOR hereby waives any right it may possess to contest the legal right,
power, or the authority of COUNTY to enter into and implement this Agreement; and the
Parties agree to cooperate if CONTRACTOR elects, pursuant to Section 11.17, to
defend the legal validity of this Agreement, and authorization for specific provisions
hereof, in the event of any legal challenge thereto brought or made in any manner by a
third party.
2.12 AGREEMENTS REGARDING CONTINUATION RIGHTS AND
ACKNOWLEDGEMENT OF RELIANCE THEREON
CONTRACTOR acknowledges having received from COUNTY, in or about September
2003, its five (5)-year notice under California Public Resources Code Section 49520,
dated September 25, 2003. Such five (5)-year notice was intended by COUNTY to
initiate the period within which solid waste enterprises operating pursuant to duly
authorized permit and otherwise lawfully (including CONTRACTOR), throughout the
three (3)-year period prior thereto, could exercise any “continuation rights” that may
have existed in their favor under such statutory provision. CONTRACTOR further
acknowledges that its voluntary participation in COUNTY’s program for creation and
implementation of Exclusive Service Areas provides a benefit to CONTRACTOR that
exceeds and thus fully satisfies any statutory five (5)-year “continuation rights” to which
CONTRACTOR may have been entitled in the absence of its participation in COUNTY’s
21
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
program, by granting CONTRACTOR the exclusive right to provide such services in its
Exclusive Service Area, throughout the anticipated Base Term (and any Extension)
hereof, so long as CONTRACTOR satisfactorily performs its duties and obligations
under this Agreement. In consideration thereof, CONTRACTOR specifically agrees as
follows:
(1) that CONTRACTOR forever shall and hereby expressly does forego any right it
otherwise may have to provide such services in any portion of the County other than the
Exclusive Service Area within which CONTRACTOR is granted the exclusive right to
provide such services hereunder; (2) that CONTRACTOR’s rights to provide, within the
unincorporated area of the County, any of the services specified in this Agreement, shall
be governed solely by the provisions of this Agreement, the anticipated Base Term of
which extends far beyond and is intended by the Parties to supersede the minimum
continuation rights that otherwise may be provided by statute; and (3) that any of
CONTRACTOR’s rights to provide such services within the unincorporated area of the
County (including CONTRACTOR’s Exclusive Service Area) shall cease and forever
terminate upon termination or expiration of this Agreement or any Extension hereof.
CONTRACTOR understands that COUNTY, and the other providers to other Exclusive
Service Areas within the County, have relied upon CONTRACTOR’s agreement to
voluntarily relinquish and disclaim any subsequent claim on the basis of such limited
continuation rights that CONTRACTOR otherwise might claim against them under
statute, in favor of the substantially greater rights (in terms of both duration and
territorial exclusivity) conferred on CONTRACTOR by the terms of this Agreement.
Provided, however, and notwithstanding the foregoing, nothing in this Section 2.12 is
intended as a waiver of any statutory continuation rights that may exist in
CONTRACTOR’s favor against any city, municipal corporation or public entity (other
than COUNTY), as to any portion of CONTRACTOR’s Exclusive Service Area that may
be annexed, incorporated or otherwise acquired by such public entity during the Base
Term or any Extension hereof.
22
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2.13 ESTABLISHMENT OF EXCLUSIVE SERVICE AREA BOUNDARIES
Pursuant to specific delegations of authority from the State of California under Sections
40001, 40002, 40057, and 40059 of the Public Resources Code, together with other
provisions of California law, during a period of time predating the approval and
execution of the Original Contract the COUNTY requested and considered the collective
advice of the current commercial and residential haulers concerning recommended
boundaries for the Exclusive Service Area boundaries. CONTRACTOR participated in
the process created by and under the supervision of the COUNTY. The
recommendations were strictly advisory and the COUNTY reserved full authority to
accept, reject or modify those recommendations, to establish Exclusive Service Area
boundaries of its choosing, or to continue to operate without Exclusive Service Areas
consistent with its obligations under applicable law. CONTRACTOR stipulates that it
participated in the COUNTY’s process in good faith, and CONTRACTOR hereby
warrants its good faith belief in its disclosures and representations regarding its
Customer base in the unincorporated area of the COUNTY, as of May 2004, in
connection therewith.
ARTICLE 3
COLLECTION SERVICES AGREEMENT
3.1 AGREEMENT TERM AND EXTENSIONS
A. Base Term
The Collection Services granted in this Agreement shall continue in force for a period of
twelve (12) years (“Base Term”) commencing on 12:00 a.m. on the Operative Date of
the Original Contract, which unless extended, shall expire at Midnight on the twelve
(12)-year anniversary of such Operative Date. CONTRACTOR will receive no
compensation under this Agreement prior to such Operative Date. However, the Parties
acknowledge that the CONTRACTOR, prior to such Operative Date, will undertake all
necessary implementation measures at CONTRACTOR’s own cost, to ensure
commencement of services hereunder on such Operative Date.
23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
B. Extension
Following the Base Term, in the reasonable exercise of COUNTY’s discretion,
CONTRACTOR was offered one (1) ten (10)-year Extension of this Agreement and its
full rights and responsibilities. The COUNTY provided CONTRACTOR written notice of
the offer of Extension no less than one (1) year prior to the conclusion of the Base
Term. CONTRACTOR accepted the COUNTY’s offer within sixty (60) days following
the date on which CONTRACTOR received the offer.
3.2 COLLECTION SERVICES AGREEMENT
A. Services Provided
1. COUNTY hereby grants CONTRACTOR, and CONTRACTOR shall have
throughout the duration of this Agreement, the exclusive right within the
geographical boundaries of the Exclusive Service Area specified in Exhibit C to
engage in Collection, transportation, processing, transport for transfer and
Disposal, and material sales related to the following:
2. Solid Waste placed in Carts by residential and commercial Customers.
3. Solid Waste placed in Bins by residential and commercial Customers.
4. Single-Stream Recyclables placed in Carts or Bins by residential and
commercial Customers.
5. Other Recyclables placed for Collection by residential and commercial
Customers.
6. Green Waste placed in Carts by residential Customers.
7. Organic Materials placed for Collection by Customers.
8. Community Clean-Up Services for the collection of non-Excluded Waste
items for all residential Cart Customers. These drop-off events are to occur once
during each calendar year. The maximum amount of materials to be collected
from each Cart Customer shall be limited to two (2) cubic yards, and one (1)
Bulky Item (which may be a Freon-containing appliance). Provided, however,
that if CONTRACTOR is providing Collection Services in the Zone 1 Service
24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Rate Area, the materials collected from each Cart Customer in the Zone 1
Service Rate Area may exceed the maximum amount specified in the preceding
sentence, for an appropriate charge as specified in Exhibit D-3 to this
Agreement.
9. It is hereby further agreed, in connection with and to facilitate
CONTRACTOR’s provision of the recycling services specified in Subparagraphs
3 and 4 above, that COUNTY hereby appoints CONTRACTOR to act as its
Authorized Recycling Agent (as that term is defined in Public Resources Code
Section 40105) within the geographical boundaries of the Exclusive Service Area
specified in Exhibit C. The Parties specifically intend and agree that the scope of
this Agreement and the right to provide Collection Services granted to
CONTRACTOR hereunder includes the sole and exclusive right to offer or
provide the recycling services detailed in this Agreement within the geographical
boundaries of the Exclusive Service Area specified in Exhibit C in exchange for a
fee or other consideration, in any form or amount.
B. Compensation
The collection of Rate Revenues by CONTRACTOR from Customers for Collection
Services, Special Services, and from Community Clean-Up Event Services, provided to
Customers consistent with the Rates listed in Exhibit D (or any successor Exhibit D
approved hereafter) shall be CONTRACTOR’s sole compensation for provision of
Collection Services. CONTRACTOR shall be entitled to retain all revenue from the sale
of Recyclable Materials.
3.3 PROVISION OF SERVICE
A. General
The work to be done by CONTRACTOR pursuant to this Agreement shall include the
furnishing of all labor, supervision, vehicles, Containers, other equipment, materials,
supplies, and all other items necessary to perform all Collection Services, and the
payment of all related expenses including all taxes, utility charges, etc. The Collection
25
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Services shall be performed in a thorough and professional manner that constitutes
reliable, high-quality and litter-free service. CONTRACTOR shall at all times provide
Collection Services using standard industry practice for comparable operations,
performed at all times in full accordance with Exhibit A (“Scope of Services”) and Exhibit
B (“Performance Standards”). Unless otherwise specifically stated in this Agreement,
the Rates are the only compensation to CONTRACTOR for provision of Collection
Services. CONTRACTOR shall comply, and assist its Customers in achieving
compliance, with State goals detailed in Section 3.8 consistent with the provisions of
Section 3.8.
B. Hours of Collection
CONTRACTOR shall limit Collection to 6 a.m. to 7 p.m. in residential zones.
CONTRACTOR shall limit Collection to 4 a.m. to 6 p.m. in commercial zones except
that the COUNTY reserves the right to require later morning Collection in areas near
residences.
3.4 EXCEPTIONS TO COLLECTION SERVICES AGREEMENT
Only the CONTRACTOR may lawfully undertake Solid Waste Handling services in the
Exclusive Service Area. The parties intend that Solid Waste and Solid Waste Handling,
as those terms are defined herein, shall be broadly interpreted in accordance with the
provisions of the Agreement and include, without limitation, any activity relating to the
collection of Recyclables or Recyclable Materials that is solicited, arranged, brokered or
provided by a person or combination of persons utilizing a bin, barrel, or other container
in exchange for the payment directly or indirectly, of a fee, charge, rebate, discount,
commission or other consideration, in any form or amount (“Fee for Service Recycling”).
Notwithstanding any other provision of this Agreement, the following services and
materials are expressly excluded from this Agreement. The COUNTY’s approval of this
Agreement and provision herein for exclusive Collection Services shall not preclude the
services and materials described hereinafter in this Section 3.4 from being provided, or
delivered to, Collected and/or transported within the Exclusive Service Area by non-
26
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
parties to this Agreement.
1. Materials which otherwise would constitute Collection Materials that are
removed from premises by a landscaping, gardening or construction contractor
as an incidental part of a gardening, landscaping, tree trimming, cleaning,
maintenance, construction or similar service offered by that contractor rather than
as a hauling service.
2. Self-Haul materials, which are delivered by an individual directly to a
transfer station or Disposal facility in a manner consistent with COUNTY
ordinances and codes and other applicable laws.
3. Construction and Demolition Debris collected by private companies with
such permits as are required by the COUNTY, operating within the COUNTY on
a non-exclusive basis. COUNTY agrees that CONTRACTOR may provide such
services on a non-exclusive basis in the unincorporated areas of the COUNTY.
4. Debris Box and Compactor Services which are provided at least on a
weekly basis by private companies with such permits as are required and issued
by the COUNTY operating within the COUNTY on a non-exclusive basis.
COUNTY agrees that CONTRACTOR may provide such services on a non-
exclusive basis in the unincorporated areas of the COUNTY pursuant to
Ordinance Code Chapter 8.24.
Provided however, that nothing in this Section 3.4 is intended to preclude the donation
of recyclable materials that are source-separated at the point of generation, by the
generator thereof, and which may be freely donated by the generator to persons other
than CONTRACTOR without violating the provisions of this Agreem ent.
3.5 AB 939 SERVICE FEE AND COUNTY SOLID WASTE SURCHARGES
A. Amount
CONTRACTOR shall pay to the COUNTY an AB 939 Service Fee equal to three
percent (3%) of Rate Revenues for the first and second year of the Extension Term.
CONTRACTOR shall pay to the COUNTY an AB 939 Service Fee equal to four percent
27
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
(4%) of Rate Revenues for the third and all subsequent years of the Extension Term.
The COUNTY reserves the right to modify the AB 939 Service Fee at any time during
the Term (including any Extension Term) of this Agreement. The COUNTY shall give
the CONTRACTOR at least ninety (90) days’ written notice prior to the date on which
any such charge becomes effective, but in no event less notice than is necessary to
permit CONTRACTOR to request an increase in the Rates in an amount that would fully
offset the amount of the increase in the AB 939 Service Fee.
B. Payment by CONTRACTOR
CONTRACTOR shall compute and pay the AB 939 Service Fee on the basis of the
CONTRACTOR's receipt of Rate Revenues from Customers for each calendar quarter.
CONTRACTOR shall remit the AB 939 Service Fee as part of the Quarterly Remittance
specified in Article 6. If the CONTRACTOR fails to pay the entire amount of
compensation due the COUNTY through error or otherwise, the difference due the
COUNTY shall be paid by the CONTRACTOR within thirty (30) days from discovery of
the error or determination of the correct amount. In addition, the CONTRACTOR shall
pay interest on the amount of any payment not timely remitted to COUNTY (including
the amount of any underpayment) at the rate of ten percent (10%) per annum, from and
after the date such payment was due, up to the date of receipt of full payment and
accrued interest thereon. Any overpayment to the COUNTY, whether attributable to
error or other cause and regardless of fault, shall be offset (without interest) against the
next payment due from the CONTRACTOR (except if made at the end of the Extension
Term, in which case COUNTY shall promptly refund such overpayment). Acceptance
by the COUNTY of any payment due under this Article 3 shall not be deemed to be a
waiver by the COUNTY of any breach of this Agreement, nor shall the acceptance by
the COUNTY of any such payments preclude the COUNTY from later establishing that
a larger amount was actually due, or from collecting any balance due to the COUNTY.
In case of dispute between the COUNTY and the CONTRACTOR regarding any
amounts due, the CONTRACTOR shall pay the amount claimed by the COUNTY as
28
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
due and notify the COUNTY in writing at the time of payment as to any portion that is
paid under protest, specifying in detail the basis of its claim of overpayment.
C. COUNTY Solid Waste Surcharges
CONTRACTOR shall pay the COUNTY Solid Waste Surcharges, for Solid Waste
generated in the COUNTY, which as of the date of execution of this Agreement are
currently in the following amounts:
1. Three Dollars and Fifty Cents ($3.50) per-ton closure/post-closure
maintenance fee for Solid Waste generated and collected within the Southeast
Regional Solid Waste Commission Area as identified in Fresno County
Ordinance Code Section 8.20.035; and
2. Three Dollars and Forty-One Cents ($3.41) per-ton surcharge for Solid
Waste management program activities (NOTE: this surcharge is incorporated
into American Avenue Landfill tipping fee).
3.6 GROWTH IN ACCOUNTS
CONTRACTOR shall provide Collection Services to all Customers within its Exclusive
Service Area located within the unincorporated area of the COUNTY requesting service
during the Base Term and any Extension Term and shall be compensated on a per-
account basis by the Rates then in effect.
3.7 TITLE TO COLLECTED MATERIALS
It is expressly understood that, to the fullest extent consistent with Applicable Law, all
Collection Materials shall become the property of CONTRACTOR upon placement by
the Customer at the point of Collection, subject to the provisions of Section 5.5(B) and
the requirements of Article 4 to ensure proper delivery of specified Collection Materials
to properly permitted facilities, and subject to the provisions of Section 12.8 regarding
protection of Customers’ privacy interests and requests from courts and law
enforcement concerning Collection Materials.
3.8 STATE GOALS
CONTRACTOR acknowledges that it shall provide a package of Collection Services,
29
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
including Single-Stream Recycling and Green Waste and Organic Materials Collection
with related public education, rate incentives and Customer service programs that are
designed to achieve and maintain a level of Diversion for the COUNTY that is in
compliance with the State’s goals of:
1. Fifty percent (50%) Diversion under AB939.
2. Each jurisdiction implementing an outreach and education program and monitor
compliance of businesses with the mandatory commercial recycling requirements
under AB 341.
3. Each jurisdiction implementing an organic waste recycling program and providing for
education, outreach and monitoring of businesses subject to the requirements of
AB1826.
4. A fifty 50 percent (50%) reduction by 2020 and a seventy-five percent (75%)
reduction by 2025 in the level of the statewide disposal of organic waste from the
2014 level as required under SB 1383.
The foregoing Diversion levels, programs and requirements are to be implemented
hereunder for all Zones as mandated by the State laws cited above. If CONTRACTOR
fails to achieve these required performance levels, the COUNTY will require the
CONTRACTOR, without additional compensation, to conduct twenty (20) waste audits
per quarter for Bin Customers, provide additional incentives to Bin Customers to
increase Diversion and prepare and mail one (1) public education/outreach packet per
quarter to Bin Customers (to be reviewed and authorized by the COUNTY), and place
three (3) advertisements or articles per quarter in a newspaper of general circulation in
the Service Area or comparable media outlets until such time as CONTRACTOR
achieves the State goals. The CONTRACTOR’s Diversion rate will be assessed by the
COUNTY one (1) year after the date that the CONTRACTOR was informed by the
COUNTY that it had not met the required Diversion rate. If, at that time, the
CONTRACTOR has not achieved the required Diversion goal, the COUNTY will require
the CONTRACTOR to conduct additional education/outreach activities, which will be
30
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
determined by the COUNTY, after consultation with CONTRACTOR.
This Section of the Agreement reflects the Parties’ understanding that there are
practical limits to what each can do to ensure compliance with the State’s waste
diversion and recycling goals. Even with the most comprehensive public education and
outreach program, consumer behavior can be influenced, but cannot be completely
managed or controlled. The Parties further agree and acknowledge that (i) effective
waste processing requires the availability of adequate processing capacity; (ii) the
availability of markets to receive processed material is essential, and (iii) neither party to
this Agreement is in a position to unconditionally guarantee the availability of either
processing capacity or markets. It is accordingly agreed between the Parties that
CONTRACTOR will have fulfilled its compliance obligation to the COUNTY under this
Section if it has offered the programs and services described in this Agreement to each
of its Customers subscribing for Collection Services; and has conducted waste audits;
and has prepared and mailed the public education and outreach materials authorized by
the COUNTY, as more thoroughly provided in the preceding provisions of this Section.
In such event, it is agreed that CONTRACTOR shall not be considered to be in breach
of its obligations under this Agreement, and that no Event of Default will be declared
hereunder, based solely upon CONTRACTOR’s failure to achieve the waste reduction,
diversion or recycling goals specified by the laws referenced in this Section.
3.9 EMERGENCY SERVICES
Notwithstanding any other provisions of this Agreement (including but not limited to
CONTRACTOR’s scope of services under Article 3 and basis for compensation under
Articles 6 and 7), COUNTY reserves the right, in the event of a declared emergency for
an Uncontrollable Circumstance and if CONTRACTOR is unable or unwilling to provide
such services, to use COUNTY staff, agents, contractors, and/or subcontractors as
necessary to clear debris from the CONTRACTOR’s Exclusive Service Area.
CONTRACTOR agrees to not contest COUNTY’s use of other parties to collect,
transport, and dispose of any debris resulting from such emergency. In the event of
31
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
such a declared emergency, CONTRACTOR shall upon notice from the COUNTY make
all reasonable effort to provide vehicles and crews to assist in clearing and/or
transporting debris, and CONTRACTOR’s reasonable compensation therefor (including
a reasonable margin of profit under the circumstances), shall be determined through
good-faith negotiation between the Parties. Provided, however, that in the absence of
mutual agreement between the Parties on an equitable compensation amount, then the
amount shall be determined by arbitration under the rules of the American Arbitration
Association and shall be limited to that amount shown to equal the out-of-pocket costs
incurred by CONTRACTOR in providing such vehicles and/or crews, including a
reasonable margin of profit under the circumstances.
3.10 INFORMATION MANAGEMENT SYSTEMS
CONTRACTOR shall maintain such information management systems as are needed to
collect, store, and organize operational and financial data, and to produce the reports
and plans as specified in this Agreement. All data shall be backed up to the satisfaction
of the COUNTY, so as to ensure no loss of data due to computer failure.
ARTICLE 4
SCOPE OF SERVICES
4.1 CART SERVICE
The following services are to be provided by CONTRACTOR to Cart Customers. All
materials are to be collected at the curb or a centralized service location, on a weekly
basis on the same day (except as necessary to accommodate holidays, Uncontrollable
Circumstances, or permitted changes in Collection dates), within the Zone 1 and Zone 2
Service Rate Areas; provided, however, that Zone 3 Service Rate Area Contractors will
not be required to provide same-day service. Services to be provided shall include the
minimum level of Single-Stream Recycling Service as well as a minimum level of Green
Waste Service as specified in Exhibit A.
A. Solid Waste Collection
Collection of Solid Waste using approximate sixty (60)- or ninety (90)-gallon Carts with
32
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
the provision of approximate thirty (30)-gallon Carts at Customer request in the Zone 1
Service Rate Area.
B. Single-Stream Recyclables Collection
Collection of the Recyclables specified in Exhibit A, using approximate ninety (90)-
gallon Carts as the default size for basic service, or approximate sixty (60)-gallon Carts
at Customer request.
C. Green Waste Collection
Collection of Green Waste using approximate ninety (90)-gallon Carts as the default
size for basic service, or approximate sixty (60)-gallon Carts at Customer request.
CONTRACTOR shall bill each Customer according to the size Container used for Solid
Waste Service, as provided in Exhibit D, regardless of the Recycling Cart and Green
Waste Cart sizes requested by Customer.
4.2 BIN SERVICE
The following services are to be provided by CONTRACTOR to residential or
commercial Bin Customers. Services shall include the minimum level of Single-Stream
Recycling, Green Waste and Organic Materials Services specified in Exhibit A. All
materials are to be collected at the curb or centralized service location, on a weekly
basis on the same day within the Zone 1 and Zone 2 Service Rate Areas; provided,
however, that Zone 3 Service Rate Area Contractors will not be required to provide
same-day service. The current maximum size Bin Rate is for six (6) cubic yards of
service on Exhibit D-1. To offer to service containers over six (6) and less than ten (10)
cubic yards, CONTRACTOR must first apply to the Director for an approved rate.
Unless and until such approval is sought and obtained, CONTRACTOR can charge no
more than the approved maximum rate for six (6) cubic yards.
A. Solid Waste Collection
Collection of Solid Waste using one or more bins, the size(s) of which, as to each
container, is one (1) cubic yard to less than ten (10) cubic yards, at Customer request.
///
33
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
B. Recyclables Collection
Collection of the Single Stream and other Recyclables specified in Exhibit A, using
approximate ninety (90)-gallon Carts as the default size for basic service, or
approximate sixty (60)-gallon Carts at Customer request. Upon request from Customer
or COUNTY, CONTRACTOR shall provide Recyclable Materials Collection service to
Customers up to the equivalent volume of Solid Waste Collection service subscribed by
Customer at no additional charge to Customer. In the event a Customer requests
Recyclable Materials Collection service in excess of their subscribed level of Solid
Waste Collection service, CONTRACTOR may charge Customer for that additional
recycling service up to fifty percent (50%) of the Rate for the equivalent level of Solid
Waste Collection service approved under this Agreement after adjusting the service
level to allow for the amount of service that must be provided at no charge. For
example, if CONTRACTOR provides two (2) cubic yards of Solid Waste and four (4)
cubic yards of Recyclables services, the first two (2) cubic yards of Recyclables service
is free and the additional two (2) cubic yards may be charged up to 50% of the Solid
Waste Collection rate.
C. Green Waste Collection
Collection of Green Waste for residential Customers only, using approximate ninety
(90)-gallon Carts as the default size for basic service, or approximate sixty (60)-gallon
Carts at Customer request. CONTRACTOR shall bill each Customer according to the
size Container used for Solid Waste Service, as provided in Exhibit D, regardless of the
Recycling Cart and Green Waste Cart sizes requested by Customer.
D. Mandatory Commercial Recycling
AB 341 imposed mandatory commercial recycling requirements statewide on all
businesses, which includes public entities. Under AB341, a business that generates four
cubic yards or more of commercial solid waste per week or is a multifamily residential
dwelling of five units or more shall arrange for recycling services. It is understood and
acknowledged between the Parties that businesses can use one or any combination of
34
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
the following practices to reuse, recycle, compost or otherwise divert solid waste from
disposal: 1) Self-haul; 2) Subscribe to a hauler’s recycling service; 3) Arrange for the
pickup of recyclable materials independent of waste hauling services; or 4) Subscribe to
a recycling service that may include mixed waste processing that yields diversion
results comparable to source separation.
In addition, each jurisdiction must implement an outreach and education program and
monitor compliance with the statewide mandatory commercial recycling requirements.
CONTRACTOR shall, within no more than sixty (60) days after the Operative Date,
make available collection and processing of Recyclable Materials for Customers that
must comply with the State-imposed commercial recycling requirements as mandated
by AB 341. CONTRACTOR also shall identify in its Quarterly Report those Customers
that fail or refuse to comply with the mandatory commercial recycling requirements of
AB 341.
E. Organic Materials Collection and Processing
CONTRACTOR shall, within no more than six (6) months after the Operative Date,
make available collection and processing of Organic Materials f or at least 25% of
CONTRACTOR’s Customers that must comply with AB1826 and/or SB1383 (including
Green Waste). Currently those laws apply to Commercial Customers. During the life of
this Agreement it is expected that those laws will include requirements for Residential
Customers as well. Within no more than three (3) months after the Operative Date,
CONTRACTOR shall submit to the COUNTY Representative its implementation plan
for the provision of such services (for commercial, multi-family and single-family
residential). That implementation plan shall detail how quickly the CONTRACTOR will
roll out the required Organic Materials Collection and Processing program for all of the
Customers that need to comply with State goals in its Service Area and all other
Customers, not to exceed 5 years from the Effective Date. The rate for
CONTRACTOR to provide Organic Materials Collection and Processing Services shall
be calculated on the following basis: 60% of the maximum Rates hereunder for Solid
35
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Waste Collection of comparable size and frequency, plus the actual cost per ton for
transfer and/or Organic Materials Processing. Prior to the implementation of this
service, the CONTRACTOR and the COUNTY will meet and confer to establish the
maximum Rates for Organic Material Collection, transfer and Processing services for
both Commercial and Residential Customers services for both commercial and
residential customers based on the use of an Organic Material Processing Facility
mutually agreed upon by the CONTRACTOR and the COUNTY in determining the
actual cost per ton. The COUNTY will solicit proposals from all ESAP haulers and
Organic Material Processing Facilities that serve Fresno COUNTY communities and/or
businesses to arrange a Master Service Agreement for such processing services and a
commitment that all ESAP haulers could use that processing service at a price not to
exceed the maximum Rate in the Master Service Agreement. For Organic Materials
Collection provided at a frequency of more than once per week, rates for an additional
Organic Materials Collection service shall not exceed 90% of the rate for once per
week service. These Organic Materials Collection, transfer and processing rates may
be adjusted annually, upon request from CONTRACTOR to the COUNTY, following
the procedure detailed in Section 7.2.B or as otherwise mutually agreed upon by
COUNTY and CONTRACTOR. A review to consider adjustment of these rates may be
initiated at any time during the year, but will be limited to no more than one adjustment
per calendar year. This review could include both known and anticipated changes in
processing costs. These rates will also be adjusted the same way that Solid Waste
rates are adjusted.at 65% of CPI for bins and 75% of CPI for carts based on fixed vs.
variable costs. The adjusted rates must be approved by the COUNTY Board of
Supervisors by the end of February or as part of the Annual CPI adjustment in March,
to start on July 1.
4.3 COMMUNITY CLEAN-UP SERVICES
CONTRACTOR shall provide Community Clean-Up Services for the collection of non-
Excluded Waste items for all residential Cart Customers. The maximum amount of
36
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
materials that will be collected from each Cart Customer shall be limited to two (2) cubic
yards (including white goods and e-waste), and one (1) Freon-containing appliance.
These drop-off events shall occur once a year during each calendar year within each
exclusive Service Area Boundary. CONTRACTOR will promote and manage its own
cleanups, which will be funded by the COUNTY’s American Avenue Trust Fund cleanup
coupon program as long as such funds are available. Provided, however, that if the
materials collected from each Cart Customer exceed the maximum amount previously
specified in this Section 4.3, then CONTRACTOR shall impose upon that Customer the
additional charge specified in Exhibit D-3 to this Agreement. CONTRACTOR will also
accept material from non-Customers who present COUNTY cleanup coupons.
CONTRACTOR will follow COUNTY guidelines for the use of such coupons and for
reports that CONTRACTOR agrees to provide to the COUNTY on all tons and materials
types collected. CONTRACTOR will charge Bulky Item Special Service Rates after
COUNTY’s Coupon Program funding is expended. CONTRACTOR shall also provide
up to 50 tons per year of roll-off services, per Exclusive Service Area Boundary (as
identified in Exhibit C), and within such Exclusive Service Area Boundary within its
territory for free service for homeless encampments and/or litter abatement, upon
request by the COUNTY.
CONTRACTOR shall make Best Efforts to recycle or divert from Disposal fifty percent
(50%) of all materials collected through Community Clean-Up Services.
4.4 ON-CALL BULKY ITEM PICK-UP
Upon notice by a Customer, CONTRACTOR will schedule pick-up of Bulky Items.
CONTRACTOR shall make all reasonable efforts to Recycle or to provide reuse
opportunities for the materials collected on-call and specified in Exhibit A, and shall
transport remaining materials to the Disposal or Transfer Facility. CONTRACTOR will
provide on-call Bulky Item pick-ups as requested within any calendar year for the
Special Service Fee provided in Exhibit D-3.
///
37
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4.5 CHRISTMAS TREE COLLECTION
In the Zone 1 and Zone 2 a Service Rate Areas, CONTRACTOR will, without additional
compensation, collect all Christmas trees discarded by all Customers during the first
three (3) regularly scheduled Collection days after Christmas Day for each collection
route. CONTRACTOR shall deliver all Christmas trees collected during this period to a
Green Waste/Organics Processing Facility. Customers shall be instructed to cut the
Christmas trees into two (2)-foot sections and place the Christmas trees without
flocking, decoration, or metal or plastic stands in the Green W aste Cart.
4.6 FREE SIDE-YARD SERVICE
CONTRACTOR shall provide free side-yard Service to disabled or elderly Customers
that are physically unable to move Carts, as reasonably determined by CONTRACTOR
in good faith. Provided, however, that COUNTY reserves the right to direct the
provision of such free side-yard Service to a Customer if the COUNTY Representative
determines that CONTRACTOR’s denial of such a request by that Customer was
arbitrary or unreasonable.
4.7 TRANSPORT AND DISPOSAL OF SOLID WASTE
The Parties acknowledge that COUNTY is responsible under California law to provide
for the collection of solid waste within its jurisdictional boundaries and has the authority
to control by ordinance the disposition of solid waste collected in the unincorporated
area of the County. It is agreed between COUNTY and CONTRACTOR, commencing
with the Operative Date of this Amended and Successor Agreement and continuing
throughout the Extended Term, as follows:
A. Flow Control – Delivery of Solid Waste to Designated Disposal Site
CONTRACTOR expressly agrees to deliver to the American Avenue Disposal Site
(AADS), for disposal at said Designated Disposal Site, all of the Solid Waste
CONTRACTOR collects within the unincorporated areas of Fresno County.
B. Application for Limited Exemption from Flow Control Requirement
At any time between the Effective Date and the one-year anniversary of the Operative
38
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Date, CONTRACTOR may make an application to the Director of Pu blic Works and
Planning (Director) for an exemption from the Flow Control requirement set forth in the
immediately preceding Paragraph 4.7A.
1. The application must provide sufficient factual justification to support the
requested exemption, which in the first instance shall be granted upon the reasonable
determination by the Director that the applicant/CONTRACTOR’s application
establishes facts sufficient to meet any of the following circumstances:
a. Extreme economic inefficiencies attributable to geographical hardship;
b. The applicant/CONTRACTOR owns or operates a landfill and has
established, to the satisfaction of the COUNTY Representative, a history of timely and
accurate compliance with the reporting and payment requirements to the COUNTY
under this Amended and Successor Agreement over the course of the Extended Term;
c. The applicant/CONTRACTOR provides, in support of its application for
an exemption, a copy of its separate agreement with the operator of a legally permitted
transfer station that either: (i) establishes to the COUNTY’s satisfaction that all Solid
Waste delivered by that CONTRACTOR to said transfer station will be disposed of by
the transfer station operator at AADS; or (ii) requires compliance with the
CONTRACTOR’s reporting requirements and payment obligations to the COUNTY
under this Amended and Successor Agreement, by the CONTRACTOR and/or the
operator of the transfer station with regard to such Solid Waste, and expressly identifies
the COUNTY as a third party beneficiary of such separate agreement, at least with
respect to that particular provision of the agreement between the hauler and the transfer
station operator; or
d. CONTRACTOR may utilize a Third-Party Transfer Station and a Third-
Party Landfill that meet all of the following: (i) CONTRACTOR may choose to deliver
Solid Waste collected in the COUNTY to a Third Party Transfer Station located in
Fresno COUNTY, or a facility approved by the Director; (ii) CONTRACTOR provides
reports to the COUNTY in a frequency and format requested by the COUNTY, as well
39
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
as all other information reasonably required by COUNTY for reporting on Solid Waste
disposal tonnage to the California Department of Resources Recycling and Recovery or
its successor agency; (iii) CONTRACTOR remits payment to the COUNTY of all
COUNTY Solid Waste Surcharges that become due and payable to COUNTY from
CONTRACTOR under Section 3.5, Paragraph C of this Agreement, in the same amount
as would be paid by CONTRACTOR if CONTRACTOR’s Solid Waste were delivered to
AADS; and (iv) CONTRACTOR’s Solid W aste is delivered to a Third Party Landfill
which, in turn, is obligated to deliver or cause its affiliates to deliver the same amount of
tonnage of Solid Waste delivered to the Third-Party Landfill to a landfill operated by the
CONTRACTOR or an affiliate of CONTRACTOR.
e. Extenuating circumstances which are not encompassed by any of the
preceding Subdivisions a. through d. of this Subparagraph 4.7.B.1, but which in the
determination of the Director provide sufficient justification for approval of such
exemption application.
Any exemption granted to CONTRACTOR shall be valid only for a period of three (3)
years following the date on which it is granted, at which time the exemption will expire
by its terms. Provided, however, that CONTRACTOR may submit an application,
together with sufficient explanatory factual justification, to support an extension of the
exemption, not more than six (6) months and not less than 45 days prior to its
expiration. The extension may be granted, in the discretion of the Director, based on the
facts presented in the application and other relevant factors, which may include
economic considerations relating to AADS operations. If any exemption granted to
CONTRACTOR expires by its terms, CONTRACTOR may submit an application
seeking issuance of a new exemption no sooner than 90 days following the expiration of
the prior exemption. If any exemption granted to CONTRACTOR is revoked pursuant to
the provisions of the immediately following Paragraph 4.7C, CONTRACTOR will not be
eligible to apply for issuance of a new exemption until 24 months have passed following
the revocation of the prior exemption.
40
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
C. Revocation of Exemption
In the event CONTRACTOR applies for and is granted an exemption, the subsequent
failure, by CONTRACTOR to comply with the payment and reporting requirements listed
in Subparagraph 14 of Paragraph 10.2.A, may result in revocation of the exemption.
The submittal by CONTRACTOR of records or reports that are untimely, or are
determined by the COUNTY Representative to be insufficient or inaccurate, shall result
in COUNTY giving notice to CONTRACTOR that: (i) any such deficiencies or errors
must be cured within 30 days of the mailing of such notice, and (ii) that a second
instance of submittal by CONTRACTOR of untimely, insufficient or inaccurate reports
during any period of time encompassing the four most recent submittals by
CONTRACTOR or within a period of fifteen (15) consecutive months, shall constitute
grounds for revocation of CONTRACTOR's exemption. From and after the date of
delivery to CONTRACTOR of notice of such revocation of the exemption,
CONTRACTOR shall be required to deliver all Solid Waste collected by CONTRACTOR
under this Agreement to AADS in accordance with the provisions of Section 4.7.A.
4.8 TRANSPORTATION / PROCESSING / MARKETING OF RECYCLABLES
CONTRACTOR shall provide directly or indirectly for the transportation, processing and
marketing of all Recyclable Materials collected pursuant to this Agreement, and is
responsible for payment of all costs relating thereto. CONTRACTOR shall select the
Recycling Facility, and is responsible to report how much Residual was generated by
weight of the materials processed for Recycling. Residual may be disposed of at a
Disposal Facility(ies) selected either by CONTRACTOR or the operator of the Recycling
Facility.
4.9 TRANSPORT / PROCESSING: GREEN WASTE AND ORGANIC MATERIALS
A. Green Waste. CONTRACTOR shall provide directly or indirectly for the
transportation, processing and marketing of all Green Waste for use through beneficial
reuse such as mulching, composting, or processing for alternative daily cover, and/or for
use as biomass fuel. CONTRACTOR is responsible for payment of all costs for these
41
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
services from Rate Revenues collected by CONTRACTOR pursuant to this Agreement
B. Organic Materials. CONTRACTOR shall provide directly or indirectly for the
transportation, processing and marketing of all Organic Materials for use through
beneficial reuse such as composting or anaerobic digestion. CONTRACTOR is
responsible for payment of all costs for these services from Rate Revenues collected by
CONTRACTOR pursuant to this Agreement. The rate for CONTRACTOR to provide
Organic Materials Collection and Processing Services shall be 60% of the comparable
size and frequency of Solid Waste Collection rates plus the actual cost per ton for
transfer and/or Organic Materials Processing, pursuant to (and as more thoroughly set
forth in) Section 4.2, Paragraph E.
4.10 EXCLUSIVE SERVICE AREA BOUNDARY “TRUE UP” PROCESS
Section 4.10 is inapplicable to this Amended and Successor Agreement. (Any request
under that Section was required to have been submitted by an ESAP Contractor within
six (6) months after commencement of Collection Services under the Original Contract,
and no such request was ever submitted by any of the Contractors.) Provided,
however, that to the extent any minor boundary changes may have been requested and
approved by COUNTY staff during the process of negotiating and drafting this
Agreement, such revisions (if any) shall be reflected in Exhibits C and C-1 hereto.
4.11 COUNTY FACILITIES
CONTRACTOR shall continue to provide Collection Services to those facilities that are
owned or operated by the COUNTY as to which CONTRACTOR provided such
Collection Services during the Base Term of the Original Contract. CONTRACTOR
shall provide such Collection Services based on the terms, rates, and conditions
stipulated in this Amended and Successor Agreement. This Section does not apply to
any services that are specifically excluded from the scope of this Agreement (e.g.,
servicing Containers 10 cubic yards or more).
///
///
42
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
ARTICLE 5
OTHER COLLECTION SERVICES
5.1 CUSTOMER INFORMATION AND PUBLIC EDUCATION
CONTRACTOR is responsible for distribution of public education materials, including
the reproduction and mailing of start-up information kits for new Customers (describing
CONTRACTOR’s services), quarterly newsletter and residential, multi-family and
commercial information based on COUNTY templates. Exhibit A specifies the minimum
standards for CONTRACTOR’s performance of these activities. CONTRACTOR shall
distribute public education materials and notices as directed by the COUNTY.
CONTRACTOR will provide via direct mail to all County residents who subscribe to
services within their specific Zones, at least thirty (30) days’ notice of the following:
changes to services and rates; community clean-up program; and information related to
local, state, or federally mandated requirements (e.g., AB341, AB1826, and SB1383).
COUNTY will be responsible to notice non-subscribing residents and businesses of
local, State, and Federal mandates and compliance with these mandates. All
information and materials (including telephone messages, as provided in Section 5.2)
shall be conveyed, at a minimum, in both English and Spanish for the CONTRACTORS
operating in Zones 1, 2a and 2b Service Rate Areas. CONTRACTOR further
acknowledges its responsibility, and the important role of the CONTRACTOR’s
consumer information and public education efforts, in causing the COUNTY to reach
and maintain State goals detailed in Section 3.8.
5.2 CUSTOMER SERVICE AND ACCESSIBILITY
CONTRACTOR shall maintain and provide to all Customers a telephone number for
Customer service, and shall provide all telephonic services specified in this Section 5.2,
at a minimum, in both English and Spanish. CONTRACTOR shall install and maintain
telephone equipment, and shall have on staff a sufficient number of dedicated service
representatives to handle the volume of calls typically experienced on the busiest days.
Such dedicated customer service representatives shall be available to answer calls from
43
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
8 a.m. to 5 p.m., Monday through Friday. CONTRACTOR shall also maintain an after-
hours telephone message system to record calls received outside CONTRACTOR’s
normal business hours. CONTRACTOR shall provide the COUNTY a means of
contacting a representative of the CONTRACTOR on a twenty-four (24) hour basis.
5.3 SERVICE COMPLAINTS AND RESOLUTION
A. Customer Complaint Log
CONTRACTOR shall maintain a written log of all oral and written service complaints
registered with CONTRACTOR from Customers within COUNTY (“Complaint Log”).
CONTRACTOR shall be responsible for prompt and courteous attention to, and prompt
and reasonable resolution of, all Customer complaints. CONTRACTOR shall record in
the Complaint Log all written and oral complaints, noting the name and address of
complainant, date and time of complaint, nature of complaint, identity of supervisor, and
nature and date of resolution. COUNTY has the right under this Agreement to inspect
the Complaint Log upon written request. Unless the COUNTY Representative provides
CONTRACTOR with express written authorization for its disposal, such log shall be
retained by CONTRACTOR for three (3) years following the end of the year in which the
complaint was made; provided, however, that any log incidental to an assessment of
Liquidated Damages, a breach, a default, or a cause of termination shall be retained
until the end of the remaining Term of this Agreement, or three (3) years following the
end of the year in which the complaint was made, whichever is later.
B. Resolution of Complaints
CONTRACTOR shall respond to all Customer complaints within twenty-four (24) hours,
Saturdays, Sundays, and holidays excluded, as specified in Exhibit A. CONTRACTOR
shall make every reasonable effort to resolve all complaints within five (5) Working
Days, with the exception of missed Customer pickups. If a complaint involves a missed
pick up of Solid Waste, Recyclables, Green Waste or Organic Materials provided by the
Customer for Collection in accordance with COUNTY Ordinances, CONTRACTOR shall
Collect the Solid Waste, Recyclables, Green Waste or Organic Materials in question by
44
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
the same day if the complaint is received by 12:00 p.m. (noon), or by 12:00 p.m. (noon),
the following Working Day if the complaint is received after 12:00 p.m. (noon).
5.4 CHANGE IN COLLECTION OPERATIONS, ADMINISTRATION, OR SCHEDULE
A. COUNTY Notice
Changes to Solid Waste, Recycling, Green Waste and Organic Materials Collection
routes, Collection days, or other changes to Collection operations that have potential to
create Customer confusion (hereafter “Changes in Service”), are subject to prior
approval by the COUNTY Representative, which approval, if such changes are useful to
improve the efficiency of CONTRACTOR’s operations, shall not be unreasonably
withheld. COUNTY shall respond to such a request within five (5) business days of the
request from CONTRACTOR. For purposes of this Section 5.4, only a change in
Collection route or day that affects more than ten (10%) percent of CONTRACTOR’s
Customers shall constitute a Change in Service.
B. Customer Notice
CONTRACTOR shall make the following notifications regarding any Changes in
Service:
1. Notify all affected Cart Customers at least fourteen (14) calendar days prior to
any change in their scheduled day of Solid Waste, Recyclables, Green Waste
and Organic Materials Collection Service. CONTRACTOR shall not permit any
Cart Customer to go without service during any Collection week, in connection
with a Collection schedule change, excluding scheduled holidays.
2. Notify all affected Bin Customers at least fourteen (14) calendar days prior to any
Change in Service. Except by prior arrangement with Customer, no Change in
Service shall result in any permanent reduction of the weekly frequency of
Collection required under this Agreement.
5.5 HAZARDOUS AND OTHER EXCLUDED WASTE
A. General
If CONTRACTOR determines that waste placed in any Container for Collection or
45
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
delivered to any facility is Hazardous Waste, Medical and Infectious Waste, or other
Excluded Waste, CONTRACTOR shall have the right to refuse to accept such waste.
Customer shall be contacted by CONTRACTOR and requested to arrange proper
disposal. If Customer cannot be reached immediately, CONTRACTOR staff shall, prior
to leaving the premises, leave a tag on the top of the Cart or Bin indicating the reason
for refusing to collect the waste.
B. Ownership of Hazardous Waste
The Parties agree and intend that upon Collection, all Collection Materials (which
specifically does not include Hazardous Waste or other Excluded Waste) shall become
the property of CONTRACTOR. All other materials (including Hazardous and other
Excluded Waste) shall remain the property of the Customer or other generator(s) that
disposed of such materials, and such person(s) shall remain solely responsible for such
materials, including without limitation for their transportation and proper disposal,
retrieval of such materials from any location to which CONTRACTOR may have
transported them, and for any and all damages, losses, liabilities, fines, penalties,
forfeitures, claims, demands, actions, proceedings or suits arising out of relating to the
generation, transportation, handling, cleanup, remediation or disposal of such materials,
whether under California Health and Safety Code Section 25189.5 or other Applicable
Law.
C. Hazardous Waste Disposal Responsibility
If Hazardous Waste is nonetheless collected by CONTRACTOR during
CONTRACTOR’s normal Collection Service and the Customer cannot be identified or
fails to remove the waste after being requested to do so, CONTRACTOR shall arrange
for its proper disposal at no cost to COUNTY.
5.6 CHANGE IN SCOPE
A. General
COUNTY may require a Change in Scope, consisting of changes in, or modifications to,
existing Collection Services, request that CONTRACTOR provide new services, or may
46
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
consider a CONTRACTOR’s request for a Change in Scope.
1. Should the Change in Scope result in documented increases in CONTRACTOR’s
operating or capital expenses that are not Pass-Through Expenses, the
COUNTY shall consider requests to increase Rates, as provided in Article 7 as
necessary to compensate CONTRACTOR for the additional documented
expenses.
2. Should the Change in Scope result in documented decreases in
CONTRACTOR’s operating or capital expenses that are not Pass-Through
Expenses, the COUNTY shall consider a decrease in Rates, as provided in
Article 7, as necessary to reflect such decrease in costs.
B. Good Faith Negotiation
In the event of a Change in Scope, the Parties agree to negotiate in good faith to
determine the applicable distribution for the reasonable costs of reviewing the proposed
Change in Scope, and for the resulting increase or decrease in Rates. CONTRACTOR
shall promptly provide any documentation requested by COUNTY and reasonably
necessary to identify and quantify any added or reduced expenses related to the
Change in Scope. Either Party may, at its own cost, seek independent third-party
assistance in determining the nature of any costs or savings. Any increase or decrease
in Rates will require approval by the Board of Supervisors. COUNTY will make a good
faith effort to present to the Board of Supervisors the submitted rate adjustment request
within four (4) months from the resolution date of negotiation provided that
CONTRACTOR submits the request and provides all supporting information in a timely
manner. All determinations of added or reduced expenses shall be based on
reasonable industry standards and averages for providing such services established in
the locality within which the Collection Services are provided hereunder. If a Change in
Scope results in a reduction or shift in equipment needs, CONTRACTOR, including any
applicable parent or any affiliates, shall make every reasonable effort to redeploy or sell
vehicles, Containers, equipment, and materials that are not fully amortized in order to
47
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
minimize capital expenditures. With regard to any Change in Scope, COUNTY reserves
the right to adjust CONTRACTOR’s compensation through a mutually agreeable
alternative method.
C. Fluctuation in Pass-Through Expenses Not A Change in Scope
It is expressly agreed between the Parties that any increase or decrease in Pass-
Through Expenses during the Base Term or Extension generally should result in an
appropriate upward or downward adjustment in the Rate commensurate with such
change. It is agreed and acknowledged that an increase or decrease in
CONTRACTOR’s cost of providing Collection Services that is attributable to an increase
or decrease in Pass-Through Expenses shall not constitute a Change in Scope, but
rather shall be considered an irrebuttable presumption that Substantial Evidence
justifies approval by the Board of Supervisors of a commensurate upward or downward
change in the Rate, to which CONTRACTOR’s charges to Customers hereunder shall
be subject.
ARTICLE 6
BILLING, COLLECTION, AND REMITTANCE
6.1 BILLING RESPONSIBILITIES
A. General
CONTRACTOR is responsible for billing and collecting Rates for all Collection Services.
CONTRACTOR shall not charge any amount in excess of the maximum Rates for any
services required or permitted to be performed by the terms of this Agreement. Those
Rates are those set forth in Exhibit D, "Schedule of Maximum Rates," or as they may be
adjusted by COUNTY during the Term.
B. Specific Requirements
In billing the Rates, CONTRACTOR shall:
1. Levy Special Service Fees as provided in Exhibit D. Special Service Fees
shall not be levied except at the Customer’s request for services for which
fees shall be charged and after prior notification to the Customer of the
48
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
amount to be charged therefor.
2. Not bill for side-yard service for eligible Customers as specified in Article 4
and Exhibit A.
All Bin Customers shall be billed monthly, and may be invoiced in advance of service, at
CONTRACTOR’s discretion. Cart Customers may be billed in advance, either on a
monthly basis or on a two (2)- or three (3)-month basis, at CONTRACTOR’s discretion.
In the event that a customer receives Collection Service without being billed,
CONTRACTOR may charge for no more than three months of service once that
customer is identified and notice is sent to Customer. CONTRACTOR shall inform
COUNTY prior to noticing Customer, and the due date specified in such notice for
payment by the Customer of such previously unbilled Rate charges shall be no less
than 60 days after date of mailing of the notice to Customer. Except as provided in this
paragraph for previously unbilled Rate charges, CONTRACTOR shall not impose any
other retroactive Rate charges on any Customer.
6.2 RECEIPT OF PAYMENT
CONTRACTOR shall record all amounts received from Customers into a special
bookkeeping account to be established by CONTRACTOR entitled "Fresno County
Unincorporated Area Rate Revenues."
6.3 CONTRACTOR’S QUARTERLY BILLING STATEMENT AND REMITTANCE
For each calendar quarter, and by the forty-fifth day following the end of the preceding
quarter, CONTRACTOR shall prepare and submit a quarterly statement to COUNTY
together with the Quarterly Remittance. The quarterly statement shall include the
following information and calculations as supporting documentation for the proffered
amount of the Quarterly Remittance:
A. Reported Revenues
All revenues collected during that month by CONTRACTOR from its Customers
resulting from the imposition of any and all Rates (including payments for both current
and past due accounts) shall be reported in the Quarterly Statement as “Reported
49
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Revenues.” Provided, that the AB 939 Service Fee shall be based only on Rate
Revenues actually collected by CONTRACTOR for all the Rates CONTRACTOR may
charge its Customers for Collection, Disposal and processing Services provided within
its Exclusive Service Area(s) that CONTRACTOR is required to provide hereunder and
Special Services provided within its Exclusive Service Area(s), including Rates for
Community Cleanup Services and Organic Materials Collection and Processing
Services. The AB 939 Service Fee shall not reflect any accounts receivable (i.e.,
delinquent accounts and bad debts) or other uncollected amounts (e.g., Special Service
Fees and Community Clean-Up Event Service charges that have not yet been
collected). Documentation shall be provided to support all Reported Revenues
including, at a minimum, the total number of accounts for each applicable charge, the
total number of Customers billed for each such amount, and all revenues collected from
any Community Clean-Up Event Services, and Special Service Fees.
B. AB 939 Service Fee
CONTRACTOR shall provide calculations in support of the amount of the quarterly AB
939 Service Fee obligation included in its Quarterly Remittance. The AB 939 Service
Fee shall be calculated on the following basis and paid by CONTRACTOR in
accordance therewith:
AB 939 Service Fee = 0.03 x Rate Revenues actually collected that month within the
Exclusive Service Area for the first and second year of the Extension Term.
AB 939 Service Fee = 0.04 x Rate Revenues actually collected that month within the
Exclusive Service Area for the third and all subsequent years of the Extension Term.
C. Southeast Regional Fee
Fresno County Ordinance Code Section 8.20.075 authorizes the COUNTY to collect a
fee from permitted haulers to cover the costs for closure and post-closure maintenance
of closed COUNTY landfills in the Southeast Regional Solid Waste Commission Area.
The charges imposed by the COUNTY will be on all Solid Waste generated within the
Southeast Regional Solid Waste Commission area. The Southeast Regional Fee
50
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Component of each Rate for Customers within the Southeast Regional Solid Waste
Commission Area will be calculated as provided in Exhibit I, which is attached hereto
and incorporated by this reference, and which explains the manner in which the
adjusted Southeast Regional Fee Component is to be determined.
D. Liquidated Damages
Any Liquidated Damages CONTRACTOR is obligated to pay to COUNTY, as provided
for in Article 10 and Exhibit E, shall be reported separately in the Quarterly Statement.
E. Other Payments
Any other payments due to COUNTY hereunder (if applicable).
F. Quarterly Remittance
The Quarterly Remittance to COUNTY shall be calculated as follows:
Quarterly Remittance = COUNTY fees (AB 939 Service Fee and COUNTY Solid Waste
Surcharges) + Liquidated Damages or Other Payments (if applicable). An illustration of
the manner in which the Quarterly Remittance is calculated is set forth in Exhibit F
attached hereto and incorporated by this reference.
6.4 CONTRACTOR RESPONSIBILITY FOR BAD DEBT AND DELINQUENT
PAYMENTS
CONTRACTOR shall solely bear all expenses and losses related to collecting or failing
to collect bad debt from delinquent Customer accounts. Notwithstanding the foregoing,
the AB 939 Service Fee shall be based only on Rate Revenues actually collected by
CONTRACTOR within its Exclusive Service Area and shall not reflect any delinquent
accounts, bad debts or other uncollected amounts. Upon reasonable effort to collect
delinquent payments, CONTRACTOR may stop service to Customers whose accounts
are delinquent by sixty (60) days or more.
It is understood and hereby acknowledged by the Parties that CONTRACTOR may not
impose a retroactive Rate charge on any Customer, except in accordance with and
under the limited circumstances expressly authorized by the last paragraph of Section
6.1.
51
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6.5 AUDIT OF BILLINGS AND FINANCIAL REPORTS
A. Scope of Audit.
COUNTY may at its sole discretion select a qualified independent firm to perform an
audit of CONTRACTOR’s records and data directly relevant to matters relating to
CONTRACTOR’s performance of its obligations under th is Agreement, as set forth in
this Paragraph 6.5.A. Upon demand, the CONTRACTOR shall permit the firm specified
by COUNTY to audit and inspect all financial, statistical and accounting records,
pertaining to CONTRACTOR’s billing records and all revenues a ssociated with
CONTRACTOR’s delivery of Collection Services. CONTRACTOR shall, upon request
and written notification by COUNTY, permit the audit and inspection of all of such
records and data by the firm specified by COUNTY. The frequency and timing of the
audits shall be determined at COUNTY’s discretion, but shall not exceed a maximum of
three (3) audits during the Base Term and two (2) during the Extension Term. COUNTY
shall be responsible for payment of all audits during the Base Term of the Agreement
and any Extension of the Agreement. COUNTY shall provide CONTRACTOR thirty (30)
days’ notice of each audit. COUNTY shall determine the scope of any audits consistent
with the purposes specified below and may elect to conduct either one or both of the
following types of audit:
1. Audit of Billings. The auditor shall review the billing practices of
CONTRACTOR with relation to delivery of Collection Services. The
independent auditor would utilize randomized Customer sampling, across
service sectors. The intent of this audit is to use sampling to verify that
CONTRACTOR’s charges to its Customers do not exceed the maximum
Rates and that all customer types are receiving the type and level of
service for which they are billed. Complete customer listings, by type, from
which randomized case audits would be selected, would be provided
through the CONTRACTOR.
2. Audit of Revenue Reporting. The auditor shall review relevant financial
52
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
reports and data submitted by CONTRACTOR pursuant to Article 8. The
purpose of this audit is to verify that CONTRACTOR is correctly
calculating Rate Revenues, and is properly remitting AB 939 Service Fees
and Liquidated Damages.
All documents and records to which the auditor is given access shall remain within the
ownership and control of CONTRACTOR at all times. To the extent that COUNTY
obtains copies of such records that are marked as “confidential” and/or “trade secret,” or
of notes created by the auditor utilizing information contained in such records, all such
copies and/or notes shall be returned promptly to CONTRACTOR at the conclusion of
the audit.
B. Confidentiality. CONTRACTOR understands that although all materials reviewe d
by the COUNTY pursuant to this Section 6.5 are intended for sole use by the COUNTY,
they are potentially subject to disclosure under the provisions of the California Public
Records Act (“CPRA”). Provided, however, that if any document provided by
CONTRACTOR for review by the independent auditor to assist with the audit process is
identified by CONTRACTOR at the time it is provided to the specified auditing firm as
“confidential” and/ or “trade secret” information, then COUNTY shall be given access to
review such document(s) at the local office of the CONTRACTOR.
For any document(s) marked “confidential” and/ or “trade secret” (hereinafte r
“Confidential Documents”), COUNTY may not obtain and retain copies thereof. It is
agreed between the Parties hereto that any subsequent access and review by COUNTY
personnel with regard to any such Confidential Document(s) shall take place only at the
CONTRACTOR’s local office, and any copies of such Confidential Document(s) shall at
all times remain in the sole custody and control of the independent auditor, unless and
until such Confidential Document(s) become subject to production under Applicable
Law, whether pursuant to the CPRA or by means of a subpoena or its legal equivalent.
In such event, COUNTY and its independent auditor may undertake such analysis as
COUNTY deems appropriate, pertaining to any request for disclosure made by a
53
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
member of the public pursuant to the CPRA, which is addressed in the immediately
following Section 6.5.C.), or by means of a subpoena or its legal equivalent.
C. Public Accessibility to Records Pursuant to the CPRA
Notwithstanding any other provision of this Agreement, any Records/Documents that
are provided by CONTRACTOR to COUNTY pursuant to any provision of this
Agreement, or that are provided by CONTRACTOR to the independent auditor to assist
with the audit process, which thereafter become the subject of a request for access
thereto by a member of the public that would qualify as a request under the CPRA, will
be handled as follows:
1. If COUNTY or the independent auditor receives any Records/Documents from
the CONTRACTOR that are not labeled as “confidential” or “trade secret,” such
Records/Documents shall not be determined exempt from disclosure to the public under
the CPRA on that basis, and will be made available to the requesting party in
accordance therewith, unless determined to be exempt from disclosure on some other
basis.
2. If COUNTY or the independent auditor receives any Records/Documents from
the CONTRACTOR that are labeled as “confidential” or “trade secret,” then COUNTY or
the independent auditor, as applicable, will promptly notify CONTRACTOR, in writing, of
any request made by any member of the public for access to such Records/Documents.
CONTRACTOR shall promptly respond to COUNTY or the independent auditor, as
applicable, in writing (but in no event more than three (3) calendar days from the date
that COUNTY or the independent auditor notifies CONTRACTOR of the request), by
informing COUNTY or the independent auditor, as applicable, as to whether
CONTRACTOR is agreeable or objects to the release of such Records/Documents to
the member of the public. If CONTRACTOR objects to such release, then the response
provided by CONTRACTOR to COUNTY or the independent auditor, as applicable,
must describe in detail the factual and legal grounds for such objection, by identifying
the specific facts and citing the relevant legal authorities in support of CONTRACTOR’s
54
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
position that the Records/Documents should not be released. If CONTRACTOR fails to
timely object to the release of the Records/Documents to the requesting member of the
public in accordance with this Subparagraph 6.5.C.2, then CONTRACTOR shall be
deemed to have waived any and all rights, if any, to claim that the Records/Documents
are confidential or otherwise exempt from disclosure to members of the public under the
applicable provisions of the CPRA.
1. If the Records/Documents that are the subject of a request under the
CPRA may arguably include any Confidential Documents as defined in the immediately
preceding Paragraph 6.5.B, then COUNTY shall review such Confidential Documents at
the local office of the CONTRACTOR. In such a case, COUNTY shall consult with the
independent auditor in considering the grounds upon which CONTRACTOR based its
objection to the release of such Records/Documents, but COUNTY, in its reasonable
judgment, shall determine whether to direct the independent auditor to release or not to
release such Records/Documents.
2. If COUNTY or the independent auditor, as applicable, chooses not to
release any Records/Documents, or portion(s) thereof, which arguably are
encompassed by the scope of a request under the CPRA and as to which
CONTRACTOR objected to the release of such Records/Documents, CONTRACTOR
shall, in addition to any other indemnification and defense provisions in this Agreement,
protect, defend, indemnify and hold harmless the COUNTY and its elective and
appointive boards, officers, agents and employees, and the independent auditor from
any and all claims, suits, liabilities, expenses, costs, damages, or judgments of any
nature, including attorney’s fees, arising out of, or in any way c onnected with the failure
or refusal by COUNTY or the independent auditor to release such Records/Documents
to such member of the public. In addition, if the member of the public requesting access
to the Records/Documents pursues legal action against the COUNTY or the
independent auditor in order to obtain access to the Records/Documents,
CONTRACTOR shall, at its own expense, appear through legal counsel in such court
55
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
action by joining in the defense of the COUNTY and the independent auditor.
3. It is understood and acknowledged by the Parties that CONTRACTOR’S
labeling or characterization of any Records/Documents as confidential, or
CONTRACTOR’S requesting that COUNTY and/or the independent auditor treat any
Records/Documents as confidential or otherwise exempt from disclosure to any
member of the public cannot, in and of itself, confer upon such Records/Documents
“confidential” status under Applicable Law, or otherwise exempt such
Records/Documents from disclosure to members of the public under the CPRA.
ARTICLE 7
CONTRACTOR COMPENSATION AND CUSTOMER RATES
7.1 RATES
A. General Provisions
The collection of Rate Revenues by CONTRACTOR (together with other revenues
described in Section 3.2(B)) shall be the only compensation to CONTRACTOR for
provision of Collection Services to Customers. (It is expressly understood and
acknowledged that no payment whatsoever shall be made to CONTRACTOR by
COUNTY for the provision of such services.) CONTRACTOR shall bill Customers for
charges as appropriate, and in no event shall any of such charges exceed the
applicable Rate for that service listed in the Schedule of Maximum Rates (Exhibit D
hereto), as may be adjusted from time to time pursuant to the terms of this Agreement.
CONTRACTOR shall collect payments in accordance with the provisions of Article 6.
CONTRACTOR shall be entitled to retain all revenue from charges to customers for
Special Services and the sale of Recyclable Materials.
B. Determination of Maximum Rates Dependent on Applicable Schedule
Section 7.1, Paragraph B is inapplicable to this Amended and Successor Agreement.
(Unlike the Original Contract, this Amended and Successor Agreement will list only one
set of maximum Rates that may be implemented by the Board of Supervisors.)
///
56
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
7.2 ADJUSTMENT OF RATES
A. One-Time Rate “True-Up” Adjustment Process
Section 7.2, Paragraph A, is inapplicable to this Amended and Successor Agreement.
(Any request under that Section was required to have been submitted by an ESAP
Contractor within six (6) months after commencement of Collection Services under the
Original Contract, and no such request was ever submitted by any of the Contractors.)
B. Unforeseen Circumstance Rate Adjustment
Either Party hereto may, subject to the terms of this Section 7.2, initiate a request for
consideration of a Rate adjustment in the Service Rate Area encompassing
CONTRACTOR’s Exclusive Service Area, based on Unforeseen Circumstances;
provided, however, that CONTRACTOR may initiate a request under this Paragraph not
more than once annually, beginning one year after the Operative Date of this Amended
and Successor Agreement, and any premature request by CONTRACTOR shall be
deemed invalid and void. CONTRACTOR’s request for such a Rate adjustment shall be
prepared in a format acceptable to the COUNTY Representative, and shall be submitted
to COUNTY no later than 180 days after the anniversary of such Operative Date
(beginning with the first such anniversary in calendar year 2019). Each such Rate
adjustment request is to be based on data from the preceding twelve (12)-month period.
COUNTY will make a good faith effort to present to the Board of Supervisors the
submitted rate adjustment request within four (4) months from the date of submittal of
CONTRACTOR’s initiating request, provided that CONTRACTOR submits the initiating
request, and all supporting information is provided to COUNTY, in a timely manner.
1. Eligible Items
Eligible Items are divided into two general classifications, as explained in Parts (a) and
(b) of this Subparagraph 7.2.B.1. Eligible Items include (but are not limited to) those
events, listed in Part (a) of this Subparagraph, that will justify approval of an Unforeseen
Circumstances Rate Adjustment, to the extent the request is supported by Substantial
Evidence. While it is neither possible, nor reasonable to attempt, to provide an
57
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
exhaustive listing of all other events that may, in the reasonable exercise of the
discretion of the Board of Supervisors, justify approval of an Unforeseen Circumstances
Rate Adjustment, examples of such Items are listed in Part (b) of this Subparagraph.
Part (b) of this Subparagraph shall apply to all requested rate adjustments submitted
under this Paragraph 7.2.B for all Eligible Items, to the extent such request is not
covered by Part (a) of this Subparagraph. For purposes of clarification, to the extent
any request submitted under this Paragraph 7.2.B is not based on an event properly
classified as either a Change in Scope, Change in Law or Pass-Through Expense (each
of which is covered by Part (a) of this Subparagraph), then Part (b) shall be applicable
to COUNTY’s consideration of such request, and in such cases the extent to which
Substantial Evidence may provide support for a requested Rate Adjustment is merely
one of the factors the Board of Supervisors, in the reasonable exercise of its discretion,
may consider relevant to its determination.
(a) The following events will support CONTRACTOR’s application to
COUNTY for consideration of an annual Unforeseen Circumstance Rate
Adjustment, or COUNTY’s initiation of such a review. Subject only to the
irrebuttable presumption applicable solely to Pass-Through Expenses
under Subdivision (iii), any requested Rate Adjustment that is based on
any of the events listed in Subdivisions (i) through (iii) inclusive of this Part
(a) shall be approved only to such extent (if any), and in such amount, as
is supported by Substantial Evidence to justify a change in the Rates
applicable to the Service Rate Area.
(i) Change in Scope.
A Change in Scope (as provided in Article 5) shall justify approval
of an upward or downward change in the Rate to the extent, if any,
that is supported by Substantial Evidence.
(ii) Change in Law.
A Change in Law for which CONTRACTOR’s compliance is
58
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
mandatory, and that results in a significant and documented
change in the specific cost of providing Collection Services, shall
justify approval of an appropriate upward or downward change in
the Rate to the extent, if any, that is supported by Substantial
Evidence.
(iii) Pass-Through Expenses.
A change in the cost of providing Collection Services, to the extent
it is due to an increase or decrease in the cost of any Pass-Through
Expense(s), shall be deemed to create an irrebuttable presumption
that Substantial Evidence justifies approval of a commensurate
upward or downward change in the Rate.
(b) The following are examples of events that may, in the reasonable
discretion of the Board of Supervisors support CONTRACTOR’s
application to COUNTY for consideration of an annual Unforeseen
Circumstance Rate Adjustment, or COUNTY’s initiation of such a review.
The following subdivisions (i) through (v), inclusive, are not intended as an
exhaustive listing of Eligible Items to which this Part (b) is applicable, but
only as examples of such events, which include, but are not limited to:
(i) Substantial changes in fuel cost, to the extent such fuel cost
changes may reasonably be described as substantial, after
considering the extent to which they are or may be offset by the
CPI Adjustment provisions of Paragraph 7.2.C below.
(ii) Increases in disposal surcharges, taxes, fees and other charges
imposed after the Operative Date by a governmental agency other
than COUNTY, at a Disposal Facility that is neither owned nor
operated by COUNTY and is utilized by CONTRACTOR for
Disposal of Collection Materials generated by Customers pursuant
to this Agreement.
59
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
(iii) Increases in the tipping fee charged at a Disposal Facility that is
neither owned nor operated by COUNTY and is utilized by
CONTRACTOR for Disposal of Collection Materials generated by
Customers pursuant to this Agreement, that are imposed on
CONTRACTOR after the Operative Date of this Agreement, by the
operator of such Disposal Facility.
(iv) Subdivision (b)(iv) of this Subparagraph 7.2.B.1 is inapplicable to
this Amended and Successor Agreement.
(v) A substantial change in character of the Service Rate Area or
portion thereof, when attributable to an annexation, incorporation or
de-annexation, may justify a redesignation of the impacted area(s)
to allow application of the Rate schedule most appropriate to the
area’s changed character, as provided in Subparagraph 7.3.D.1.
2. Ineligible Items
Examples of items for which CONTRACTOR shall not be additionally compensated as
Unforeseen Circumstance Rate Adjustments, except as resulting from a Change in
Scope, include, but are not limited to:
(a) Changes in the number of Customers due to changes in population or
housing/business development (unless eligible under Subdivision
7.2.B.1(b)(v) as a change in character attributable to an annexation,
incorporation or de-annexation).
(b) Shifts in the number of accounts between larger and smaller Cart sizes,
large and smaller Bins, or more or less frequency of Cart and Bin pickup.
(c) Increases in transportation time and/or costs related to provision of
Collection Services that may reasonably be described as either
foreseeable or insubstantial, or that may be addressed appropriately by
the CPI Adjustment provisions that immediately follow this Subparagraph.
(d) If CONTRACTOR receives a Poor Performance Rating, and COUNTY
60
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
requires reasonable changes to CONTRACTOR's operations, at
CONTRACTOR’s cost, in order to remedy identified deficiencies in
CONTRACTOR’s performance, pursuant to Subparagraph 8.6.D.1. (It is
acknowledged and agreed that exercise of such right by COUNTY is not a
Change in Scope, in that the costs incurred by CONTRACTOR are
intended to remedy deficiencies in its performance as measured against
satisfactory performance of the scope of duties encompassed by the
terms of this Agreement.)
3. Implementation of Approved Rate Adjustments
(a) Approval of a requested rate adjustment for any Pass-Through Expenses
and Changes in Scope shall include payment for any time periods from the date
CONTRACTOR incurred an actual increase in costs as a result of the act or event on
which the request was based, through and including the date of approval of the Rate
Adjustment (such interim period shall be referenced for purposes hereof as the
“Retroactive Adjustment”).
(b) COUNTY will make a reasonable attempt to give CONTRACTOR
sufficient advance notice of any proposed action that is anticipated to result in a Change
in Scope or an increase in any Pass-Through Expenses, which thereby may avoid the
necessity of any Retroactive Adjustment (if the date of the proposed action and the Rate
Adjustment resulting therefrom are made to coincide). COUNTY may, in its reasonable
discretion, make such Retroactive Adjustment as is required hereunder by: (i) including
appropriate compensation therefor as a component of the Rate Adjustment; (ii)
permitting CONTRACTOR to charge a temporary surcharge; or (iii) such other method
as is reasonably calculated to permit CONTRACTOR to receive the full Retroactive
Adjustment.
(c) Approval of a requested Rate Adjustment attributable either to a Change
in Law, or to any of those Eligible Items that are covered by the provisions of Part (b) of
Subparagraph 7.2.B.1, shall not include any Retroactive Adjustment if determined within
61
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
a reasonable time from the date of the initiating request therefor: and such rate
Adjustment shall be effective on a prospective basis only from the date of approval by
COUNTY’s Board of Supervisors, subject only to CONTRACTOR’s compliance with the
requirements of Section 7.3 regarding advance notice to Customers. Provided,
however, and notwithstanding the foregoing, if the initiating request for such a
requested Rate Adjustment (i.e., attributable either to a Change in Law or an Eligible
Item covered by the provisions of Part (b) of Subparagraph 7.2.B.1) and all supporting
information are submitted timely by CONTRACTOR and the Other Interested Providers,
and if approval by the Board of Supervisors occurs more than six months after the
initiating request, then only under such limited circumstances a Retroactive Adjustment
shall be allowed; and in such case, the Retroactive Adjustment shall apply only to that
period commencing 120 days after submission of the initial request, through and
including the date of approval by the Board of Supervisors.
C. CPI Adjustment
Each Rate (including Solid Waste, Organic Materials Collection, transfer and
Processing costs, Special Services rates, and Community Cleanup rates after the
COUNTY’s coupons are exhausted) shall be adjusted up or down, by COUNTY, on an
annual basis beginning on July 1 after the first anniversary of the Operative Date of this
Amended and Successor Agreement, and on July 1 of each year thereafter for the
remainder of the Extension Term, to reflect the product of the change in the annual
inflation rate measured as the percentage increase in the CPI over the previous twelve
(12)-month period ending on December 31 of the preceding calendar year. COUNTY
Representative shall seek approval of adjustments by the COUNTY Board of
Supervisors during the month of March to facilitate issuance of notices to customers
with hauler billing cycles. For purposes of illustration, the calculation of the change in
the CPI for a Rate adjustment taking effect on July 1, 2019 after the first anniversary of
the Operative Date of this Amended and Successor Agreement shall be based on the
change in the CPI over the period between December 31, 2017, and December 31,
62
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2018. The CPI is then adjusted by the applicable percentage of the CPI (the “CPI
Adjustment Factor”), which is 75 percent (75%) for Cart Rates. 65 percent (65%) for Bin
Rates and 65 percent (65%) for Special Services rates, and Community Cleanup rates.
The adjusted Rate shall be calculated as follows:
Adjusted Rate = Current Rate x [(Current CPI/12-month previous CPI) -1]
x CPI Adjustment Factor) + 1]
An illustration of the calculation of the adjusted CPI Component is attached as Exhibit G
and incorporated by this reference. The CPI Adjustment is independent of any other
Rate Adjustment request that either Party may initiate, and is neither intended to
preclude the availability nor to supplant the procedures provided in this Agreement for
Rate adjustments that may be justified on other bases (including without limitation for
Pass-Through Expenses).
D. Change in the CPI Index
If the CPI is discontinued or revised during the Term by the United States Department of
Labor, such other government index or computation with which it is replaced shall be
used in order to obtain substantially the same result as would be obtained if the CPI had
not been discontinued or revised.
E. Adjustment of the Disposal Tipping Fee Component
The Disposal Tipping Fee Component of each Rate will be adjusted to reflect any
percentage change in the per-ton tipping fee at the Disposal facilities owned and/or
operated by COUNTY, and that will be in effect during the new Rate period.
For each Rate, the adjusted Disposal Tipping Fee Component shall be calculated
as follows:
Adjusted Disposal Tipping Fee Component = (Current Disposal Tipping Fee
Component) x [(New Disposal tipping fee/Old Disposal tipping fee)/(1-AB 939
Service Fee percentage)]
If COUNTY’s new Disposal Tipping Fee will only be in effect for a portion of the new
Contract Year, the adjustment to the Disposal Tipping Fee Component shall be prorated
63
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
accordingly. Examples of the manner in which the adjusted Disposal Tipping Fee
Component is calculated are provided in Exhibit H hereto and incorporated by this
reference.
7.3 NOTICE OF ADJUSTED RATES
CONTRACTOR shall provide all Customers with advance written notice of approved
Rate adjustments, in the form of a bill insert or appropriate notification on the invoice, at
least thirty (30) days prior to the effective date of each Rate adjustment.
A. Review of Costs
Should either Party request a Rate adjustment review, COUNTY shall have the right to
review any or all costs associated with CONTRACTOR's services under this
Agreement. A Rate adjustment review may, at COUNTY's discretion, occur in
conjunction with a performance review pursuant to Article 8.
B. Submittal of Request
CONTRACTOR must submit, at least six (6) months prior to the proposed effective date
of any Rate adjustment, any request for an Unforeseen Circumstance review of Rates,
together with sufficient supporting cost and operational data in a form and manner
acceptable to the COUNTY Representative.
C. Burden of Justification
CONTRACTOR shall bear the burden of justifying to COUNTY by Substantial Evidence
any request by CONTRACTOR for consideration of a Rate adjustment under this Article
7. The request shall be addressed to the COUNTY Representative, and on its face
shall reflect that CONTRACTOR also has sent copies of such request to all other
exclusive providers of Collection Services operating within the Service Rate Area at
issue (for purposes of this Paragraph 7.3.C, hereinafter “Other Interested Providers”),
pursuant to agreements substantially identical to this Agreement. The recommendation
of the COUNTY Representative as to approval or disapproval of the request shall be
based upon the accompanying supporting information submitted together with the
initiating request submitted by CONTRACTOR to the COUNTY Representative and
64
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
such additional supporting information as may be presented to the COUNTY
Representative, in a reasonably timely manner, by any Other Interested Providers.
The submittal of such additional supporting information by Other Interested Providers
shall be considered timely if submitted within 45 days after CONTRACTOR’s initiating
request. The supporting information submitted by CONTRACTOR and any Other
Interested Providers, or an appropriate summary thereof, shall be presented to the
Board of Supervisors as part of the agenda packet in advance of the hearing on the
request. The Board of Supervisors, in its discretion and only for good cause shown,
may consider additional evidence not previously presented to the COUNTY
Representative, in accordance with the provisions of this Paragraph 7.2.C, by
CONTRACTOR and any Other Interested Providers. If the Board of Supervisors
determines that CONTRACTOR has not met its burden, to present Substantial
Evidence to justify a Rate Adjustment in the Service Rate Area at issue (whether based
on CONTRACTOR’s initial submission of supporting documentation or any additional
evidence allowed in the Board of Supervisors’ discretion), the decision of the Board of
Supervisors on that issue shall be final for administrative purposes, subject only to
limited judicial review as specified in Section 7.4.
D. Grant of Request
The extent to which Substantial Evidence supports a requested Rate adjustment may
be a factor (and in certain cases, as specified in Paragraph 7.2, will presumably be the
controlling factor) in the Board of Supervisors’ determination as to whether to grant
some, all or none of the requested Rate adjustment.
1. The Evidentiary Standard Applies to the Entire Service Rate Area
Because Rates are intended to be uniform throughout the entire Service Rate Area that
includes CONTRACTOR’s Exclusive Service Area, the CONTRACTOR is required to
provide evidence that supports or justifies application of the requested Rate Adjustment
throughout the entire Service Rate Area, consistent with the provisions of Paragraph
7.3.C. Notwithstanding the foregoing, in the event of an annexation, incorporation or
65
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
de-annexation, as contemplated by Subdivision 7.2.B.1(b)(v), COUNTY may (and if
requested by CONTRACTOR shall) determine whether the Service Rate Area or some
portion thereof should be redesignated from its existing designation (Zone 1, Zone 2a,
Zone 2b and Zone 3) to one of the other designations, because of a substantial change
in the character thereof caused by the annexation, incorporation or de-annexation, in
which case CONTRACTOR and the COUNTY shall cooperate in taking all actions
reasonably necessary to implement the redesignation expeditiously, including without
limitation making the necessary modifications to the Agreement and providing
reasonable notice to CONTRACTOR’s Customers.
2. Consideration of Unforeseen Rate Adjustment Requests
(a) For those Eligible Items that are considered under Part (a) of Subparagraph
7.2.B.1, the extent to which Substantial Evidence supports the requested Rate
Adjustment may properly be characterized as the controlling factor in the Board of
Supervisors’ determination. To the extent a request is based on a properly
characterized Pass-Through Expense, Change in Law or Change in Scope, then such
request shall be approved, but only to the extent (if any), and in such amount, as is
supported by Substantial Evidence, as applied to the entire Service Rate Area at issue.
(b) All Eligible Items other than a properly characterized Pass -Through Expense,
Change in Law or Change in Scope may, in the reasonable discretion of the Board of
Supervisors, support a requested Rate Adjustment, as provided in Part (b) of
Subparagraph 7.2.B.1. However, as to Eligible items considered under Part (b) of
Subparagraph 7.2.B.1, the extent to which Substantial Evidence may provide support
for a requested Rate Adjustment is merely one of the factors the Board of Supervisors
may, in the reasonable exercise of its discretion, consider in making its determination.
The Board of Supervisors may consider and weigh such evidence, and further may
consider any and all other factors it deems relevant in making its determination
(including but not limited to the extent to which evidence of increased costs may be
offset or outweighed by other factors, or fairly attributable to CONTRACTOR’s own
66
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
business decision rather than properly characterized as an Unforeseen Circumstance),
all in the reasonable exercise of its discretion.
E. Unspecified Special Service Fees
Notwithstanding the foregoing, CONTRACTOR and any one or more of its Customers
may agree to any reasonable charge for unspecified Special Services for which no
specific charge is established in Exhibit D, and no prior notice or approval by the
COUNTY shall be required for such charge.
7.4 RESOLUTION OF DISPUTES REGARDING RATE ADJUSTMENT REVIEW
This Section 7.4 pertains only to Rate adjustment review requested by CONTRACTOR
under the provisions of Article 7. CONTRACTOR expressly agrees that
CONTRACTOR’s sole cause of action and exclusive remedy for any allegedly improper
action or inaction by COUNTY in response to CONTRACTOR’s timely request for Rate
Adjustment shall be a petition for writ of mandate under Code of Civil Procedure Section
1085. CONTRACTOR understands and acknowledges that the applicable standard of
judicial review for any such petition filed by CONTRACTOR will be whether the Board of
Supervisors abused its discretion, in denying all or some portion of the requested Rate
adjustment. The Parties further agree that they will join in a request for priority setting
of the trial court’s hearing, of any petition for writ of mandate that is filed by
CONTRACTOR pursuant to and in full accordance with the provisions of this Section
7.4, and that each Party will bear its own costs in connection therewith. If
CONTRACTOR’s challenge to COUNTY’s determination in such a writ of mandate
proceeding is successful, then CONTRACTOR’s recovery shall be calculated in such
manner to permit CONTRACTOR to receive the full Retroactive Adjustment to which it
is entitled, consistent with the provisions of this Agreement (including but not limited to
Section 7.2.B.3(b)).
///
///
///
67
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
ARTICLE 8
RECORD KEEPING, REPORTING, AND PERFORMANCE REVIEWS
8.1 RECORD KEEPING
A. Accounting Records
CONTRACTOR shall maintain full, complete and separate financial, statistical and
accounting records, pertaining to cash, billing, and provisions of all Collection Services,
prepared on an accrual basis in accordance with generally accepted accounting
principles. Such records shall be subject to audit, copy, and inspection by COUNTY
Representative or designee upon request. Rate Revenues, Special Service Fees,
Community Clean-Up Event Services, and Recycling revenues derived from provision of
the Collection Services, whether such services are performed by the CONTRACTOR or
by a subcontractor(s), shall be recorded as revenues in the accounts of
CONTRACTOR. CONTRACTOR shall maintain and preserve all cash, billing and
Disposal records for a period of not less than five (5) years following the close of each
of CONTRACTOR's fiscal years. Provided, however, that as to any record relating to an
assessment of Liquidated Damages, or to declaration of a breach, a default, or a
specified cause of termination, any and all such record(s) shall be retained for a
minimum of five (5) years, or for four (4) years following the expiration or termination of
this Agreement, whichever is earlier, unless the COUNTY Representative gives express
written authorization for its disposal.
B. Collection Materials Records
CONTRACTOR shall maintain, and preserve for the time period specified in the
immediately preceding Paragraph 8.1.A, records of the quantities of each of the
following: (i) Solid Waste Collected and Disposed under the terms of this Agreement; (ii)
Recyclable Materials, by type, Collected, purchased, processed, sold, donated or given
for no compensation, and Residual Disposed; (iii) Green Waste and Organic Materials
Collected, received, purchased, processed, sold, donated or given for no compensation;
(iv) Residual Disposed; and (v) unit counts for Bulky Items collected.
68
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
C. Public Education and Information
CONTRACTOR shall maintain, and preserve for the time period specified in Paragraph
8.1.A, records of its customer information and public education activities as detailed in
Article 5.1 and Exhibit A of this Agreement. Such records shall be subject to audit, copy,
and inspection by COUNTY Representative or designee upon request.
D. AB 341 and AB 1826 Compliance
CONTRACTOR shall maintain, and preserve for the time period specified in Paragraph
8.1.A, records of all public education, outreach, and monitoring activities, for all
commercial accounts as required by AB 341 and AB 1826, and other applicable laws.
Such records shall be subject to audit, copy, and inspection by COUNTY
Representative or designee upon request.
E. Customer Complaint Log
CONTRACTOR shall maintain, and preserve for the time period specified in Paragraph
8.1.A, the customer complaint log pursuant to Article 5.
F. Operations Data
CONTRACTOR shall maintain, and preserve for the time period specified in Paragraph
8.1.A, full, complete and separate operations data, pertaining to residential, commercial,
industrial and institutional customers and provisions of all Collection Services. Data
shall include: account names, addresses, and phone numbers; size of containers
provided; frequency of Collection Services provided; days of Collection Services; route
maps; other services provided; and history of customer complaints. Data shall be
provided in a format and software acceptable to COUNTY, Such records shall be
subject to audit, copy, and inspection by COUNTY Representative or designee. Such
records shall be provided to the COUNTY Representative in the event of an Emergency
(as determined under Section 3.9) or one (1) year prior to the conclusion of the Term of
this Agreement (including this Extension) in order to assist with the competitive bid
process to award Collection Services at the conclusion of the current Term.
CONTRACTOR shall provide COUNTY with such other information as may reasonably
69
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
be requested.
G. Other Records
CONTRACTOR shall maintain all other records reasonably related to provision of
Collection Services, whether or not specified in this Article 8 or elsewhere in this
Agreement.
8.2 REPORTING
A. General
Quarterly reports shall be submitted in hard copy, based upon COUNTY format, and
shall be provided electronically in a format acceptable to COUNTY, unless otherwise
directed by COUNTY Representative.
As set forth in this Article, CONTRACTOR shall submit reports to the COUNTY on Solid
Waste Collection and Disposal, Recyclables Collection, Green Waste and Organic
Materials Collection to assist the COUNTY in meeting the reporting requirements of AB
939, SB 1016, AB 341, AB 1826, SB1383 and other new laws or requirements.
CONTRACTOR shall provide all necessary reporting data requested by the COUNTY
relating to the COUNTY’s compliance requirements as per the aforementioned laws.
The quarterly reports are due to the COUNTY by the 45th day following the end of the
preceding quarter. The CONTRACTOR shall provide, upon request, all additional
reporting data requested by the COUNTY relating to the COUNTY’s compliance
requirements as per the aforementioned laws. Such additional reports shall be provided
to the COUNTY within thirty (30) days following each request.
B. Accuracy of Reports
The failure of the CONTRACTOR to file accurate and timely reports, the inclusion of any
inaccurate or misleading data in reporting, or statement of misrepresentation by
CONTRACTOR in such report(s), shall be subject to Liquidated Damages as set forth in
Exhibit E.
The submittal by CONTRACTOR of records or reports that are untimely, or are
determined by the COUNTY Representative to be insufficient or inaccurate pursuant to
70
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
the provisions of Paragraph 4.7C shall also constitute grounds for revocation of
CONTRACTOR’s exemption from the requirement of Paragraph 4.7A to deliver to the
American Avenue Disposal Site all of the Solid Waste CONTRACTOR collected within
the unincorporated areas of Fresno County. CONTRACTOR shall ensure that reports
submitted to processing and disposal facilities match reports submitted to the COUNTY,
to the satisfaction of the COUNTY. CONTRACTOR’S drivers will provide the same
county of origin information to processing and disposal facilities as provided to the
COUNTY.
C. Quarterly Reports to COUNTY
Quarterly reports to COUNTY shall be due forty-five (45) days after the end of the
respective quarter and shall include.
1. Amount (in tons) of Solid Waste, Recyclables, Green Waste and Organic
Materials Collected;
2. Amount (in tons) and type of materials deposited in a permitted facility and
identification of permitted facility.
3. Amount (in tons) of Recyclables, Green Waste and Organic Materials
Diverted.
4. Customer count and tons by type of service including Special Services
and Community Clean-Up Services and coupons accepted from
Customers and Non-Customers.
5. Unit counts, material types and tonnages of bulky items collected from
residential customers, indexed by zipcode+4 coding.
6. Customer participation rates by type of service (i.e., Solid Waste,
Recyclables, Green Waste and Organic Materials collection services) by
customer service sector (residential and commercial). Residential
participation rate to be measured by the percentage of customers setting
out a cart in a given month. Commercial account participation rate
calculation to be mutually agreed upon by the CONTRACTOR and
71
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
COUNTY.
7. COUNTY Fees and supporting data and calculations as detailed in Exhibit
F.
8. Public education and information activities undertaken during the quarter
by category (electronic, print, and direct contact), including distribution of
bill inserts, number of issued collection notification tags, community
information and events, quarterly newsletters, and other activities related
to the provision of Collection Services.
9. Information on commercial recycling technical assistance including listing
waste audits/business assessments conducted and new commercial
accounts offered service.
10. AB 341 and AB 1826 compliance and monitoring reporting, including a
listing of the businesses and institutions subject to the requirements of
each law, and the actual businesses and institutions with Recycling and
Organic Material Collection Services. CONTRACTOR additionally shall list
the informational notices, as applicable, and the non-compliance notices
(including identification of the non-compliant Customer), as applicable,
distributed each quarter throughout its service area.
11. State-mandated reporting data required under AB341, AB1826, SB1383
or any new laws or requirements.
12. Separate tonnage data (Solid Waste, Recyclables, Green Waste,
Organics Materials) for all schools, colleges, universities, Special Districts,
COUNTY, State and Federal facilities that CONTRACTOR serves in the
County (even if not a Customer under this Agreement).
13. Residual rates for the amount of Residual generated by weight of
materials processed for Recycling.
14. Customer complaint logs for the specified time period.
15. Summary of Liquidated damages assessed for the specified time period.
72
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Fourth Quarter reports to COUNTY due on February 15th of each year
additionally shall include data by category (electronic, print, and direct contact),
for Electronic Annual Reports to the State under AB341 Mandatory Commercial
Recycling (MCR) and data for Electronic Annual Reports to the State under AB
1826 Mandatory Commercial Organics Recycling (MORe) as indicated in Exhibit
J and below:
1. All quarterly data as detailed above.
2. A summary assessment of the delivery of services in the
CONTRACTOR’S service area. The intent of the report is for the
CONTRACTOR to assess how well services and programs are operating
in terms of efficiency, and meeting the COUNTY’s diversion requirements.
This is an opportunity for the CONTRACTOR to highlight significant
accomplishments and provide recommendations for service and program
improvements.
3. A summary of the prior year’s quarterly Rate Revenues, COUNTY Fees,
Liquidated Damages, any other payments to COUNTY, and Quarterly
Remittances.
4. An estimated annual Diversion rate for CONTRACTOR’s Customers
calculated for the previous calendar year by customer service sector
(residential, commercial and bulky items) and overall.
5. Customer account data by service level and customer service sector
including the number of accounts, number of carts and bins by service
level,
amount (in tons) and type of materials collected, amount and type of
materials deposited in a permitted facility, amount and type of materials
Diverted, applicability of mandatory commercial recycling (MCR) and
mandatory organics recycling (MORe) for each account, and customer
count by type of service, including Special Services and Community
73
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Clean-Up Services.
6. Compilation of all quarterly reports information on public education and
information activities undertaken during the year by category (electronic,
print, and direct contact), including distribution of bill inserts, number of
issued collection notification tags, community information and events,
quarterly newsletters, and other activities related to the provision of
Collection Services.
7. Amount of Solid Waste removed by CONTRACTOR for Collection
purposes from locations within the COUNTY and taken by CONTRACTOR
for Disposal to landfills located outside the COUNTY.
8. Compilation of all quarterly reports information on the number and type of
complaints received over the past year, including how they were resolved
and the elapsed time between receipt of the first complaint and final
resolution of the complaint. CONTRACTOR shall propose, and COUNTY
shall approve in advance the format to be used for this portion of the
annual report.
9. CONTRACTOR shall include a listing of markets for Recyclable Materials
and the end use of these materials in general categories requested by
COUNTY (such as broad categories of “domestic” or “export”, not specific
purchasers of the materials). This type of information is used to help the
COUNTY gauge the sustainability of Recycling markets and to assist in
the development of new markets.
8.3 OTHER RELATED REQUIREMENTS
A. Waste Characterization and Waste Diversion Studies
CONTRACTOR shall, upon reasonable advanced notice from COUNTY, fully and in a
timely manner cooperate with and assist COUNTY in COUNTY’s preparation and
performance (if and as needed and at COUNTY’s own cost), of periodic waste
characterization and waste diversion studies to be conducted in a manner agreed upon
74
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
by CONTRACTOR and COUNTY.
B. Collection Monitoring
CONTRACTOR shall monitor its Collection of Solid Waste, Recyclable Materials, Green
Waste and Organic Materials to identify occurrences of, and to prevent, contamination
of Recyclable Materials, Green W aste and Organic Materials. COUNTY may also
monitor CONTRACTOR while on route by observing collection activities and practices.
COUNTY Representative will inform CONTRACTOR at least one (1) week in advance
prior to date of such route monitoring. COUNTY Representative will make such
observations at a safe distance from CONTRACTOR’s vehicles, equipment and
employees and otherwise comply with all policies and procedures of CONTRACTOR
when making such observations.
8.4 INSPECTION BY THE COUNTY
COUNTY Representative, or designee(s), shall have the right to observe and review
any of CONTRACTOR's records, operations, and equipment, relevant to a
determination of CONTRACTOR’s compliance with the requirements of this Agreement
pertaining to the provision of Collection Services, and to enter premises during normal
business hours for the purposes of such observations, and to conduct such review at
any time upon reasonable prior notice. COUNTY Representative shall notify
CONTRACTOR’s representative upon arrival. COUNTY Representative will comply
with all policies and procedures of CONTRACTOR when on CONTRACTOR’s
premises. CONTRACTOR may condition any such entry in or upon CONTRACTOR’s
premises, by COUNTY Representative or designee(s), on the prior execution of a
waiver of any liability of CONTRACTOR for any injury or damages suffered by COUNTY
Representative or designee(s), or their respective heirs and assigns, or others claiming
by, through or under them, arising out of or relating to such entry. Provided, however,
that any such waiver that CONTRACTOR may require COUNTY Representative or
designee(s) to sign, shall include a provision confirming that it shall not apply to the
extent any such injury or damages are attributable to CONTRACTOR’s gross
75
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
negligence or intentional wrongdoing.
8.5 PERIODIC REVIEW
COUNTY will periodically review the performance of CONTRACTOR based on
Customer complaints, timely payment of sums due, statistical reporting, program
progress, compliance with AB 939 and all other statutory and regulatory requirements,
and Quarterly and Annual reports.
8.6 PERFORMANCE REVIEW
Subject to issues listed below, COUNTY may require a "Performance Review" of
CONTRACTOR up to three (3) times during the Base Term of the Agreement and two
(2) times during the Extension Term of the Agreement. (Provided, however, that a
Remedial Performance Review, whether scheduled by the COUNTY Representative
pursuant to Subparagraph 8.6.D.2, or by the Board of Supervisors pursuant to
Subparagraph 10.7.A.2, shall not count against the maximum allotted number of
Performance Reviews specified in the preceding sentence.) COUNTY shall be
responsible for payment for all Performance Reviews during the Base Term and any
Extension Term of the Agreement. (Provided, however, that CONTRACTOR is
responsible for any costs incurred by CONTRACTOR in cooperating and participating in
the Performance Review process, and CONTRACTOR shall not be entitled to
reimbursement therefor.) The Performance Review shall be conducted as set forth in
the following provisions of this Section 8.6.
A. Scope of Performance Review. The Performance Review shall:
1. Be performed by a qualified firm under contract to COUNTY. The
qualified firm shall be selected by COUNTY.
2. Address all appropriate areas of concern to COUNTY, and shall provide
specific recommendations, as appropriate, for improvement in each area,
including but not limited to the following:
a. Compliance with the terms of this Agreement and Applicable Laws.
b. Overall organizational structure and management systems and
76
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
procedures.
c. Efficiency of Collection operations, including an analysis of routes,
schedules, and the impact of the requirements of this Agreement.
d. Timeliness and thoroughness of Collection Services.
e. Staffing practices, including the deployment of management and
supervisory personnel.
f. Financial management practices, including billing and collection
system and policies regarding uncollected Customer accounts.
g. Personnel management practices, including compensation policies
and the resolution of employee grievances.
h. Employee training, with respect to safety and management of
Hazardous Waste.
i. Procedures for receiving and resolving Customer complaints and
concerns.
j. Procedures for the acquisition, maintenance, safety check, and
replacement of equipment.
k. Utilization and management of facilities, equipment and personnel.
l. Comparison with practices of businesses deemed similar to
CONTRACTOR.
CONTRACTOR shall cooperate fully with the Performance Review, and provide within
thirty (30) days of request, all operational, financial, and other information related to its
obligations and performance under this Agreement and deemed reasonable or
convenient by COUNTY or the firm selected by COUNTY for purposes of conducting
the Performance Review. CONTRACTOR's failure to cooperate, or CONTRACTOR’s
willful or continuing failure to provide all requested information, shall be considered an
Event of Default as provided in Section 10.2.A.4.
B. Performance Review Rating
1. At the conclusion of the Performance Review, the CONTRACTOR’s performance
77
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
of its duties and obligations under this Agreement shall be accorded one of the following
ratings by COUNTY (in consultation with the firm selected pursuant to Subparagraph
8.6.A.1): “Satisfactory,” “Needs Improvement,” or “Poor.” Determination of the rating
given to the CONTRACTOR shall be based on the factors and concerns specifically
enumerated in Subparagraph 8.6.A.2, and the extent to which CONTRACTOR’s
performance meets or exceeds generally accepted industry standards and COUNTY’s
reasonable expectations regarding the quality of service and responsibility to the
general public demonstrated by CONTRACTOR in its performance of a critical public
service.
2. Either of the following circumstances shall be considered presumptive evidence
of poor performance, based on unacceptably high Liquidated Damages:
(a) Both (i) - Assessment of cumulative Liquidated Damages totaling more than
five thousand dollars ($5,000.00) in any twelve (12)-month period; and
(ii) six (6) or more separate and unrelated events within any twelve (12)-month
period, leading to the imposition of Liquidated Damages; or
(b) Both (i) - Assessment of cumulative Liquidated Damages totaling more than
eight thousand dollars ($8,000.00) in any twenty-four (24)-month period; and
(ii) ten (10) or more separate and unrelated events within any twenty-four (24)-
month period, leading to the imposition of Liquidated Damages.
C. Determination of Breach
If COUNTY determines, to its satisfaction, based upon the results of a particular
Performance Review (including consideration of problems and frequency of occurrence,
recommended improvements and any implementation efforts, as well as any evidence
presented by the CONTRACTOR in connection therewith), that any significant event of
Breach has occurred, and if such Breach is not (or cannot be) cured by CONTRACTOR,
then the COUNTY Representative may initiate proceedings recommending COUNTY’s
termination of this Agreement at its option pursuant to Subparagraph 10.7.A.1, and
without prejudice to any other remedy to which it may be entitled to either at law, in
78
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
equity, or under this Agreement.
D. Determination of Required Changes to Operations, Probation or Default
1. In the event CONTRACTOR receives a rating of “Poor” in its Performance
Review, the COUNTY reserves the right to require such reasonable changes to
CONTRACTOR's operations as COUNTY determines to be necessary or
appropriate, at CONTRACTOR’s cost, in order to remedy identified deficiencies
in CONTRACTOR’s performance of its duties and obligations hereunder, and
thereby carry out the intent of the terms and conditions of this Agreement.
2. In the event CONTRACTOR receives a rating in its Performance Review other
than “Satisfactory” (i.e., either “Improvement Needed” or “Poor”), then the
COUNTY Representative, in his or her discretion, may place the CONTRACTOR
on probationary status, and in such case a Remedial Performance Review shall
be scheduled to be conducted approximately six (6) months after the date of
CONTRACTOR’s placement on probationary status. If the CONTRACTOR
receives a rating of “Satisfactory” in the Remedial Performance Review, the
CONTRACTOR automatically shall be removed from probationary status.
3. In the event CONTRACTOR receives a rating of “Poor” in its Performance
Review, then the COUNTY Representative, in his or her discretion, may declare
an Event of Default and initiate proceedings recommending COUNTY’s
termination of the Agreement, pursuant to the provisions of Subparagraph
10.7.A.2. If the COUNTY Representative declares an Event of Default and
recommends termination of this Agreement (rather than placement of
CONTRACTOR on probationary status under the immediately preceding
Subparagraph 8.6.D.2), based on CONTACTOR’s “Poor” performance rating,
then that recommendation shall proceed to the Board of Supervisors for its
consideration in accordance with the provisions of Subparagraph 10.7.A.2.
4. In the event CONTRACTOR receives two (2) consecutive ratings of “Poor” (first
in a standard Performance Review and subsequently in the Remedial
79
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Performance Review), then the COUNTY Representative shall declare an Event
of Default and recommend termination of this Agreement, and that
recommendation shall proceed to the Board of Supervisors for its consideration
in accordance with the provisions of Subparagraph 10.7.A.2.
ARTICLE 9
INDEMNITY, INSURANCE, BOND
9.1 INDEMNIFICATION OF THE COUNTY
CONTRACTOR agrees to and shall indemnify, defend, with Counsel acceptable to
COUNTY, and hold harmless COUNTY, its officers, officials, employees, volunteers,
agents and assigns (indemnitees) from and against any and all costs (including
attorneys’ fees) and damages (whether special, gen eral or punitive), loss, liability, fines,
penalties, forfeitures, claims, demands, actions, proceedings or suits (whether
administrative or judicial), in law or in equity, of every kind and description (including,
but not limited to, injury to and death of any person and damage to property, strict
liability, product liability, or for contribution or indemnity claimed by third parties), arising
or resulting from or in any way connected with: (i) subcontractors, in performing or
failing to perform this Agreement; (ii) the failure of the CONTRACTOR, its agents,
employees, and/or subcontractors to comply in all respects with applicable laws,
ordinances and regulations, and/or applicable permits and licenses; (iii) the acts of
CONTRACTOR, its officers, employees, agents, and/or subcontractors in performing
services under this Agreement for which strict liability is imposed by law; (iv) the
processing, marketing, and end use of Recyclable Materials, Green Waste and Organic
Materials; and (v) CONTRACTOR’s acts or omissions in performance of its duties
hereunder resulting in the improper disposal of any Hazardous W aste at any place
where CONTRACTOR transports, stores or disposes of Collection Materials pursuant to
this Agreement. In the event such loss, liability, penalty, forfeiture, claim, demand,
action, proceeding, suit, injury, death or damage is also caused in part by any of the
indemnitees’ negligence, the foregoing indemnity shall apply to the full extent
80
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
permissible under California Public Resources Code Section 40059.1 and other
Applicable Law.
In instances where CONTRACTOR and COUNTY are both named defendants,
CONTRACTOR shall provide a defense for COUNTY, unless after meeting and
conferring on the issue, it appears that sufficient conflicts between CONTRACTOR and
COUNTY exist so as to reasonably prevent a joint defense of CONTRACTOR and
COUNTY by counsel for CONTRACTOR. If a final decision, judgment, or settlement
allocates liability to CONTRACTOR and to the COUNTY, or to one or more other
COUNTY contractors, CONTRACTOR shall have no obligation to the COUNTY for
indemnification or otherwise with respect to any liability allocated to COUNTY for
intentional wrongful acts or sole negligence of the COUNTY. CONTRACTOR’s
responsibility for indemnification of one or more other COUNTY contractors, if any, shall
be based on legal principles regarding allocation of fault, contribution and equitable
indemnity.
9.2 INSURANCE SCOPE AND LIMITS
General Requirements. CONTRACTOR shall, without additional charge to COUNTY
or Customers, maintain in effect at all times during the Term of this Agreement not less
than the following coverage and limits of insurance:
A. Coverages and Requirements. The comprehensive general liability insurance
shall include broad form property damage insurance.
1. Insurance coverage shall be provided by CONTRACTOR with limits not
less than the following:
Comprehensive General Liability - $2,000,000 combined single limit per
occurrence for bodily injury, personal injury, and property damage.
Automobile Liability - $2,000,000 combined single limit per accident for
bodily injury and property damage (include coverage for Hired and Non-
owned Vehicles).
///
81
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Workers’ Compensation - Statutory Limits/Employers' Liability -
$1,000,000/accident for bodily injury or disease.
Employee Blanket Fidelity Bond - $500,000 per employee covering
dishonesty, forgery, alteration, theft, disappearance, and destruction
(inside or outside).
Pollution Legal Liability - $1,000,000 per claim/occurrence and
$2,000,000 aggregate for bodily injury, property damage, and remediation
of contaminated site.
2. The COUNTY, its officers, agents, employees, and volunteers shall be
named as additional insureds on all but the workers' compensation and
pollution liability coverages.
3. Said policies shall remain in force throughout the entire Term (including
any Extension Term) of this Agreement and, with the exception of pollution
liability coverage, shall be payable on a "per occurrence" basis unless the
COUNTY's Risk Manager specifically consents in writing to a "claims
made" basis. 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
encompassing the entire Term of this Agreement and an additional period
extending not less than three (3) years after expiration of the Extension
Term. Proof of such "tail" or other continuous coverage shall be required
at any time that the CONTRACTOR changes to a new carrier prior to
receipt of any payments due.
4. The CONTRACTOR shall declare all aggregate limits on the coverage
before commencing performance under this Amended and Successor
Agreement.
5. The deductibles or self-insured retentions are for the account of
CONTRACTOR and shall be the sole responsibility of the CONTRACTOR.
82
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6. CONTRACTOR shall notify COUNTY Representative in writing within
thirty (30) calendar days of any planned nonpayment of premium or
planned reduction in coverage.
7. Insurance is to be placed with insurers with a current A.M. Best's rating of
no less than A-Vll, unless otherwise approved by the COUNTY Risk
Manager.
8. The policies shall cover all activities of CONTRACTOR, its officers,
employees, agents and volunteers arising out of or in connection with this
Agreement.
9. For any claims relating to this Agreement, the CONTRACTOR's insurance
coverage shall be primary, including as respects the COUNTY, its officers,
agents, employees, and volunteers. Any insurance maintained by the
COUNTY shall apply in excess of, and not contribute with, insurance
provided by CONTRACTOR's liability insurance policy.
10. The CONTRACTOR shall waive all rights of subrogation against the
COUNTY, its officers, employees, agents, and volunteers related to the
performance of services under this Agreement.
B. Endorsements. Prior to the Effective Date of this Amended and Successor
Agreement, CONTRACTOR shall furnish the COUNTY Representative with
certificates or original endorsements reflecting coverage required by this
Agreement. The certificates or endorsements are to be signed by a Person
authorized by that insurer to bind coverage on its behalf. All certificates or
endorsements are to be received by, and are subject to the approval of, the
COUNTY Risk Manager before work commences.
C. Renewals. Throughout the entire Term of this Agreement, CONTRACTOR shall
furnish the COUNTY Representative 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
83
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
(including any Extension Term) of this Agreement. The certificates or
endorsements are to be signed by a Person authorized by that insurer to bind
coverage on its behalf.
D. Workers' Compensation. CONTRACTOR shall provide workers' compensation
coverage as required by State law, and prior to the Effective Date of this
Amended and Successor Agreement, CONTRACTOR shall file the following
statement with the COUNTY.
"I am aware of the provisions of Paragraph 3700 of the Labor Code that
require every employer to be insured against liability for workers'
compensation or to undertake self-insurance in accordance with the
provisions of that code, and I will comply with such provisions before
commencing any services required by this Agreement.
The Person executing this Certificate on behalf of CONTRACTOR
affirmatively represents that she/he has the requisite legal authority to do
so on behalf of CONTRACTOR, and both the Person executing this
Agreement on behalf of CONTRACTOR and CONTRACTOR understand
that the COUNTY is relying on this representation in entering into this
Agreement.”
9.3 INSTRUMENT FOR SECURING PERFORMANCE
Within seven (7) calendar days of the COUNTY's notification to CONTRACTOR that the
COUNTY has executed this Amended and Successor Agreement, CONTRACTOR shall
file with the COUNTY a bond, payable to the COUNTY, securing the CONTRACTOR's
performance of its obligations under this Agreement and such bond shall be renewed
annually if necessary so that the performance bond is maintained at all times during the
Term. The principal sum of the bond shall be the lesser of fifty thousand dollars
($50,000) or twenty-five percent (25%) of CONTRACTOR's Annual Gross Receipts over
the previous three years under this Agreement.
84
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
The bond shall be issued by a surety company designated as an admitted surety insurer
in good standing with and authorized to transact business in this state by the California
Department of Insurance, and that has a record of service and financial condition
acceptable to the COUNTY. In its discretion, when determining the sufficiency of
a proposed surety company, the COUNTY may require the surety company to provide
additional information supported by documentation. The COUNTY generally requires
such information and documentation whenever the proposed surety company has either
a Best's Key Rating Guide of less than A or a financial size designation of less than VIII.
Provided, however, that the COUNTY expressly reserves its right to require all
information and documentation to which the COUNTY is legally entitled from any
proposed surety company.
The COUNTY, in its discretion, may accept an alternative form of performance security
(e.g., a letter of credit or certificate of deposit), in a form approved by the COUNTY's
Risk Manager, if requested by the CONTRACTOR; and the CONTRACTOR agrees that
the COUNTY may require a higher amount of security in such a case. In all events, the
premium for such bond or letter of credit or any other charges related in any way to
CONTRACTOR's obtaining or maintaining any and all such instruments, shall be fully
borne and paid by CONTRACTOR.
ARTICLE 10
BREACH, DEFAULT, AND TERMINATION
10.1 EVENTS OF BREACH
The Parties acknowledge that provision of consistent, reliable Collection Services is of
critical importance to COUNTY and that COUNTY has considered and relied on
CONTRACTOR’s representations as to its ability and commitment to the provision of
service in awarding this Agreement. In the event that CONTRACTOR fails to perform
fully any of its obligations under this Agreement, CONTRACTOR shall be in breach of
this Agreement, and a default may thereupon be declared by COUNTY, as set forth in
this Article 10.
85
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
A. Definitions
1. Material Breach. “Material Breach” shall mean the failure by
CONTRACTOR to perform any obligation under this Agreement which: (i) constitutes a
significant hazard to the public health, safety, or welfare or (ii) is reasonably likely to
impose civil or criminal liability on the COUNTY. Additionally, when a pattern of
otherwise “standard” breaches occurs over time, such that in combina tion, the breaches
constitute a significant failure by CONTRACTOR to perform its obligations hereunder,
the latest in such a series of repetitive-type breaches may be deemed a Material Breach
in the discretion of the COUNTY Representative, in which event CONTRACTOR may
be required to take immediate action to correct the repeated deficiencies in performance
to cure the default, as provided in Section 10.2.A.1.
2. Standard (Non-Material) Breach. “Standard Breach” shall mean any
breach by CONTRACTOR of any of its obligations under this Agreement that is not
encompassed by the definition of “Material Breach” set forth in the preceding
Paragraph.
B. Liquidated Damages
1. Assessment of Liquidated Damages for Specified Types of Breaches
The Parties recognize that some quantified standards of performance are
necessary and appropriate to ensure consistent and reliable service and performance,
and to serve as a specific measure of successful performance under the Agreement.
The Parties further recognize that if CONTRACTOR fails to perform its obligations,
COUNTY and residents of COUNTY will suffer damages that are and will be impractical
and extremely difficult to ascertain and determine. The Parties agree that the
Liquidated Damage amounts provided in Exhibit E represent a reasonable estimate of
the amount of such damages for the types of breaches specified therein, without
prejudice to COUNTY’s right to treat uncorrected non -performance as an Event of
Default under this Article 10. It is acknowledged and agreed that the assessment and
payment of Liquidated Damages hereunder shall constitute damages, and are neither
86
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
intended nor considered to be a penalty. COUNTY may determine the occurrence of
events giving rise to Liquidated Damages through the observation of its own employees
or representatives, or by investigation of Customer or resident complaints.
2. Notice of Assessment of Liquidated Damages
Prior to assessing Liquidated Damages, and in addition to any other available
remedies COUNTY may impose, COUNTY shall give CONTRACTOR written notice of
its intention to do so. The notice shall include a brief description of the incident or
nonperformance. CONTRACTOR may review (and copy at its own expense) all
information in the possession of COUNTY relating to the assessment of Liquidated
Damages. CONTRACTOR may, within ten (10) Working Days after receiving the
notice, request a meeting with COUNTY Representative. CONTRACTOR may present
evidence in writing and through testimony of its employees and others relevant to the
incident or nonperformance. COUNTY Representative shall provide CONTRACTOR
with a brief written explanation of his or her determination on each breach prior to
authorizing the assessment of liquidated damages. The decision of COUNTY
Representative shall be final. The assessment of Liquidated Damages issued by the
COUNTY shall appear on the next quarterly statement and the CONTRACTOR shall, at
its own expense, remit to the COUNTY the amount of damages specified in said
assessment as part of the Quarterly Remittance.
10.2 EVENTS OF DEFAULT
A. Circumstances Constituting an Event of Default
Each of the following circumstances or events shall constitute, and shall justify
COUNTY’s election to declare, an Event of Default (“Event of Default”) hereunder:
1. Uncured Material Breach. Failure by CONTRACTOR to take immediate
actions as necessary, appropriate and sufficient to cure a Material Breach
once CONTRACTOR becomes cognizant thereof, whether as a result of
receipt of notice thereof from COUNTY or otherwise, and whether based
on the significant nature of the breach or its characterization as the latest
87
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
in a repeated pattern of otherwise standard breaches (either of which may
constitute a Material Breach as defined in Section 10.1 above).
2. Uncured Standard Breach. A standard (non-material) breach of this
Agreement that appears to be accidental, inadvertent, and occasional (i.e.,
that is not indicative of a pattern or repetitive practice of CONTRACTOR
based on past performance hereunder) may constitute a basis for
declaration of an Event of Default if, within thirty (30) days after receipt of
notice of the breach, CONTRACTOR: (a) fails to correct its deficient
performance, or (b) fails to commence appropriate corrective action and
provide written notice to COUNTY specifying the estimated time-frame for
completion of the corrective action; or (c) CONTRACTOR’s estimated
time-frame for completion of corrective action is not reasonable, based on
the nature and consequences of the breach; or (d) CONTRACTOR fails
to complete the corrective action within the estimated reasonable time-
frame previously provided by CONTRACTOR.
3. Misrepresentation or False Warranty. Any representation, disclosure,
assurance, or warranty made to COUNTY by CONTRACTOR in
connection with, or as an inducement to entering into or performing this
Agreement or any future amendment to this Agreement, or that is a
condition to the effectiveness of the Agreement, that proves to be false or
misleading in any material respect as of the time the representation,
disclosure, assurance, or warranty is made.
4. Failure to Cooperate, or to Provide Information for Performance
Review. Willful Failure by CONTRACTOR to cooperate, or willful or
continuing failure to provide information for performance review, as
provided in Paragraph 8.6. A.
5. Result of Performance Review. As a result of a rating of “Poor” in
CONTRACTOR’s performance review, in which case the default and cure
88
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
provisions of this Article 10 shall be read together with those provided in
Section 8.6 (and specifically Paragraphs C and D thereof), and to the
extent of any inconsistency, the provisions of Section 8.6 shall control.
6. Seizure or Attachment of Equipment. There is a seizure or attachment
(other than a prejudgment attachment) of, or levy affecting possession on,
the operating equipment of CONTRACTOR, including without limit its
vehicles, maintenance or office facilities, or any part thereof of such
proportion as to materially impair CONTRACTOR’s ability to perform
under this Agreement and which cannot be released, bonded, or
otherwise lifted within forty-eight (48) hours excluding weekends and
holidays.
7. CONTRACTOR Debt. CONTRACTOR files a voluntary petition for debt
relief under any applicable bankruptcy, insolvency, or other similar law, or
consents to the appointment of, or taking of possession by, a receiver,
liquidator or sequestrator (or similar official) of any part of
CONTRACTOR’s operating assets or any substantial part of
CONTRACTOR’s property, or shall make any general assignment for the
benefit of CONTRACTOR’s creditors, or shall become insolvent and
unable to pay its debts generally as they become due. Provided,
however, that (as is the case with any default) COUNTY may, in its
discretion, may waive or choose not to declare such default. In order for
COUNTY to give any serious consideration to the exercise of its option to
waive or refrain from declaring a default under this Subparagraph (or the
following Subparagraph 8), the CONTRACTOR would have to provide
notification to COUNTY in advance of its bankruptcy filing (or similar
action), provide strong assurances that there will be no disruption of
Collection Services to Customers, and all supporting facts that would be
reasonably necessary to establish CONTRACTOR’s continuing ability to
89
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
perform its obligations under this Agreement.
8. Court Order or Decree. Any court having jurisdiction enters a decree or
order for relief in respect of CONTRACTOR, in any involuntary case
brought under any bankruptcy, insolvency, or similar law, or any such
court shall enter a decree or order appointing a receiver, liquidator,
sequestrator (or similar official) of any part of CONTRACTOR’s operating
equipment or assets, or order the winding up or liquidation of
CONTRACTOR’s affairs.
9. Failure to Provide Performance Assurances. CONTRACTOR fails to
provide reasonable assurances of performance as required under Section
10.9.
10. Failure to Notify COUNTY. CONTRACTOR fails to notify COUNTY in a
timely manner of any receipt of notice of violation or official communication
from those regulatory agencies regulating Solid Waste, Recyclables,
Green Waste, Organic Materials Collection, transportation, processing or
Disposal activities that might materially affect CONTRACTOR’s ability to
perform all of the Collection Services.
11. Lapse of Financial Requirement. Lapse of any insurance, letter of
credit, bond or other financial instrument required under this Agreement.
12. Regulatory Violation. CONTRACTOR violates in any material respect
any orders or filings of any regulatory body having jurisdiction over
CONTRACTOR relative to this Agreement, provided CONTRACTOR may
contest any such orders or filings by appropriate proceedings conducted in
good faith, in which case no breach of this Agreement shall be deemed to
have occurred until the later of a final order or judgment has been issued.
13. Cessation of Services. CONTRACTOR ceases to provide Collection
Services as required under this Agreement for a period of three (3)
consecutive Working Days or more, for any reason within the control of
90
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
CONTRACTOR.
14. Failure to Meet Payment or Reporting Requirements. CONTRACTOR
fails to make any payment of any sum owed to COUNTY that is required
under Section 3.5 of this Agreement and/or refuses to provide COUNTY
with required information, reports, and/or records in a timely manner as
provided for in this Agreement, including but not limited to the
requirements of Sections 8.1 and 8.2.
15. Unremedied Acts or Omissions. Any act or omission relative to this
Agreement by CONTRACTOR which violates in any significant respect the
material terms, conditions, or requirements of this Agreement, the
provisions of AB 939, AB341, AB1826 and SB1383 applicable to
CONTRACTOR as they may be amended from time to time, or any other
provision of Applicable Law as it relates to this Agreement, and which is
not corrected or remedied within the time set in the written notice of the
violation.
16. Criminal Activity of CONTRACTOR. Should CONTRACTOR or any of
its officers, directors or contract manager, or other employees in position
to supervise or influence actions under this Agreement, be “found guilty”
under Federal law or California law of a felony for conduct within the State
of California relating to the performance or non-performance of obligations
similar to those imposed on CONTRACTOR directly or indirectly by its
execution of this Agreement. The term “found guilty” shall be deemed to
include any judicial determination that CONTRACTOR or any of
CONTRACTOR’s officers, directors or employees is guilty, and any
admission of guilt by CONTRACTOR, or any of CONTRACTOR’s officers,
directors or employees including, but not limited to, the pleas of “guilty,”
“nolo contendere,” “no contest,” or “guilty to a lesser felony” entered as
part of any plea bargain. Such felonious conduct includes, but is not
91
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
limited to, any activities related to or carried out pursuant to this
Agreement for: (i) price fixing, (ii) illegal transport or disposal of
hazardous or toxic materials, (iii) bribery of public officials, (iv) fraud, or (v)
jury tampering. In the event of any such felonious conduct, COUNTY
reserves the right to exercise one or more of the remedies specified below
in Article 10. Such action shall be taken only after CONTRACTOR has
been given notice and an opportunity to present evidence in mitigation.
COUNTY shall not terminate this Agreement as a result of a determination
of felonious conduct within the meaning of this Paragraph, if
CONTRACTOR dismisses or removes officers, directors or employees
found guilty of felonious behavior and takes all action necessary and
appropriate to remedy any breach of its obligations hereunder.
17. Assignment. CONTRACTOR assigns this Agreement, or any portion of
its duties or obligations hereunder, in violation of either Section 11.5 or
Section 11.8.
B. Notice of Default
CONTRACTOR shall be in default from the date of receipt of a notice from COUNTY
identifying such default. The notice shall include a brief description of the default.
CONTRACTOR may review (and copy at its own expense) all information in the
possession of COUNTY relating to the Event(s) of Default. CONTRACTOR may, within
three (3) Working Days after receiving the notice, request a meeting with COUNTY
Representative. CONTRACTOR may present evidence in writing and through
testimony of its employees and others relevant to the Event(s) of Default. The decision
of COUNTY Representative regarding determination of any noticed Event(s) of Default
shall be final for administrative purposes. Accordingly, there shall be no appeal from
the COUNTY Representative’s determination, unless CONTRACTOR receives a
subsequent notice of COUNTY’s intent to terminate the Agreement on the basis of that
Event of Default, in which case the appeal of the proposed termination would proceed in
92
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
accordance with the applicable provisions of Section 10.7.
C. Cure of Default
Notwithstanding any other provision of this Agreement to the contrary, the COUNTY
shall provide CONTRACTOR with reasonable notice of and a reasonable opportunity to
cure any breach of this Agreement if: (i) the breach is reasonably subject to cure (i.e.,
not of a type that would undermine the public trust or confidence in CONTRACTOR’s
fitness and ability to perform its obligations under this Agreement), and (ii) the COUNTY
is not materially and adversely affected by providing the CONTRACTOR with an
opportunity to cure. Any breach that is timely cured by CONTRACTOR, consistent with
the provisions of this Article 10, shall not be determined to constitute an Event of
Default.
CONTRACTOR shall begin cure of any Event of Default as soon as it becomes aware
of the Event of Default, whether discovered by CONTRACTOR or through notice from
COUNTY. Upon becoming cognizant of the default, CONTRACTOR shall proceed to
cure such default as follows:
1. Immediately, if the default is such that in the determination of COUNTY,
the health, safety, or welfare of the public is endangered thereby; or
2. Within thirty (30) Working Days of giving or receiving notice of default;
provided that if the nature of the default is such that it will reasonably
require more than thirty (30) days to cure, CONTRACTOR shall have such
additional time as is reasonably needed to expeditiously complete a cure,
and only upon written agreement from COUNTY. During any default cure
period, CONTRACTOR shall provide COUNTY weekly written status of progress
in curing such default.
10.3 COUNTY DETERMINATION OF CURE OF BREACH OR DEFAULT
A Breach or an Event of Default shall be considered remedied and/or cured upon
execution of a written acknowledgment, executed both by the COUNTY Representative
and CONTRACTOR’s representative, specifying the event and stating that remedy
93
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
and/or cure of such event has been satisfactorily completed.
10.4 COUNTY’S RIGHT TO PERFORM
A. General
In addition to any and all other legal or equitable remedies, in the event that
CONTRACTOR, for any reason whatsoever, fails, refuses or is unable to provide any
Collection Service for a period of more than three (3) consecutive Working Days, and if,
as a result thereof, should Solid Waste accumulate in COUNTY to such an extent, in
such a manner, or for such a time that COUNTY should find that such accumulation
endangers or menaces the public health, safety, or welfare, then COUNTY shall have
the right, but not the obligation, without payment to CONTRACTOR after twenty-four
(24) hours prior notice to CONTRACTOR, during and throughout the period of such
emergency as determined by COUNTY, to perform or cause to be performed, with its
own or other personnel, all such services as COUNTY deems necessary or appropriate,
without liability to CONTRACTOR.
Notice of CONTRACTOR’s failure, refusal, or neglect to provide Collection Services
may be given orally by telephone to CONTRACTOR and shall be effective immediately.
Written confirmation of such oral notification shall be sent to CONTRACTOR within
twenty-four (24) hours of the oral notification.
CONTRACTOR further agrees that in such event:
1. CONTRACTOR will fully cooperate with COUNTY to effect the temporary
transfer of possession of property, as necessary and appropriate for
COUNTY’s use, to provide for the resumption of Collection Services.
2. CONTRACTOR will, if COUNTY so requests, and to the extent feasible,
keep in good repair and condition all of such property, provide all motor
vehicles with fuel, oil and other service, and provide such other service,
and provide such other service as may be necessary to maintain said
property in operational condition.
3. CONTRACTOR shall provide all necessary billing information to the
94
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
COUNTY. COUNTY shall determine how to bill, in what amounts, and the
distribution of amounts received. COUNTY shall provide CONTRACTOR
reasonable compensation for provision of CONTRACTOR’s land,
equipment, or other property, if COUNTY’s exercise of the right to perform
is the result of an Uncontrollable Circumstance.
CONTRACTOR hereby acknowledges and agrees that COUNTY’s exercise of its rights
under this Section 10.4 in the circumstances specified herein: (i) does not constitute a
taking of private property for which compensation must be paid; (ii) will not create any
contract, tort, or common count liability on the part of COUNTY to CONTRACTOR; and
(iii) does not exempt CONTRACTOR from the indemnity provisions of Section 9.1,
which are intended by the Parties to extend to circumstances arising under this Section
10.4. COUNTY shall make good faith efforts to coordinate use of CONTRACTOR’s
land, equipment and other property with CONTRACTOR in order to minimize
interference with or disruption of other business activities of CONTRACTOR.
B. Duration of COUNTY’s Possession
COUNTY has no obligation to maintain or continue in possession of CONTRACTOR’s
property and/or continue its use in providing any Collection Services for any specific
period of time and may, at any time, in its discretion, relinquish possession to
CONTRACTOR. COUNTY’s right to retain temporary possession of CONTRACTOR’s
property, and to provide one or more Collection Services, shall continue until
CONTRACTOR can demonstrate to COUNTY’s satisfaction that it is ready, willing, and
able to resume such services.
10.5 COUNTY REMEDIES FOR CONTRACTOR DEFAULT
Upon CONTRACTOR’s failure to cure a default pursuant to Section 10.2, COUNTY
shall have the following rights:
1. Waive Default. At its discretion (and subject to the provisions of Section
10.6), to waive CONTRACTOR’s default.
2. Termination. Terminate the Agreement in accordance with Section 10.7.
95
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3. All Other Available Remedies. In addition to, or in lieu of termination, to
exercise all of its remedies in accordance with this Article 10 and any
other remedies at law and in equity, to which COUNTY shall be entitled,
according to proof.
4. Damages Survive. If CONTRACTOR owes any damages upon
COUNTY’s termination of the Agreement, CONTRACTOR’s liability under
this Section 10.5 shall survive such termination.
Whether or not COUNTY exercises its right to terminate, COUNTY shall have the right
to: (i) seek performance by the surety under the performance bond (or demand payment
under the letter of credit), and (ii) make a claim on any insurance policy or policies.
10.6 COUNTY WAIVER OF BREACH OR DEFAULT
A waiver by COUNTY of any breach or default by CONTRACTOR shall not be deemed
to be waiver of any other breach or default by CONTRACTOR, including such
occurrences with respect to identical or similar obligations hereunder, and including new
incidents of the same breach or default. The subsequent acceptance by COUNTY of
any damages or other money paid by CONTRACTOR hereunder shall not be deemed
to be a waiver by COUNTY of any preexisting or concurrent breach or default by
CONTRACTOR.
10.7 TERMINATION
A. Termination for Cause
Any of the following circumstances shall constitute grounds for COUNTY’s exercise of
its unilateral right to terminate this Agreement, for cause, by action of its Board of
Supervisors at any regularly scheduled (or special) meeting of that body.
CONTRACTOR shall be given reasonable notice of such meeting and an opportunity to
respond and to offer testimonial and documentary evidence during the hearing of the
matter at such meeting.
1. Uncured Default. An uncured Event of Default by CONTRACTOR.
2. Poor Performance Review. If the uncured Event of Default that is the basis for
96
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
the proposed termination is a Poor Performance Review, under the procedures
governing Performance Reviews as provided in Section 8.6, the Board of Supervisors
shall have the following options in considering a recommendation for termination of the
Agreement on the basis of a Poor Performance Review.
(i) Terminate the Agreement for cause, or
(ii) Place CONTRACTOR on probationary status and direct staff to conduct a
Remedial Performance Review in six (6) months (or such other time as the Board of
Supervisors in its discretion may designate), and to report back to the Board of
Supervisors with the results and staff’s recommendation upon completion of such
Remedial Performance Review.
In determining whether a Poor Performance Review requires termination of the
Agreement or placement of CONTRACTOR on probationary status, the factors to be
considered by the Board of Supervisors shall include, but not be limited to, both the
number of instances and cumulative amount of Liquidated Damages assessed during
the Term (including the Extended Term if applicable). Assessment of Liquidated
Damages against CONTRACTOR in both a cumulative dollar amount and number of
instances, that is unacceptable (as set forth both in the immediately following
Subparagraph 10.7.A.3 and in Subparagraph 8.6.B.2), shall create a rebuttable
presumption in support of COUNTY’s action to terminate the Agreement or place
CONTRACTOR on probationary status, as appropriate under the circumstances and
based on the facts presented.
3. Unacceptably High Incidence of Liquidated Damages, based on both the
number of occurrences and the cumulative amount assessed, may constitute an
independent basis for termination of the Agreement, as set forth in Subparagraph
8.6.B.2.
Provided, however, that an Unacceptable Level of Liquidated Damages shall
form an independent basis for termination of the Agreement for cause only if
CONTRACTOR has received a Poor Performance Review and termination of the
97
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Agreement is proposed on the separate basis of such Poor Performance Review.
In the event of termination of the Agreement by COUNTY for cause pursuant to
this Section 10.7, CONTRACTOR shall forfeit its instrument for securing performance to
COUNTY to the extent required to compensate COUNTY for damages incurred as a
result of the breach or default.
B. Notice of Intent to Terminate
In addition to any other available remedies COUNTY may impose as specified in
Section 10.5 and as a result of CONTRACTOR default, COUNTY may give
CONTRACTOR written notice of intent to terminate this Agreement. The ultimate
decision concerning any recommendation by the COUNTY Representative to terminate
this Agreement shall be made by the Board of Supervisors, subject only to
CONTRACTOR’s right to seek judicial review of such determination by a court of
competent jurisdiction. Upon notice of intent to terminate, CONTRACTOR shall
promptly provide COUNTY with any or all records kept in accordance with Article 8 or
any other record keeping provisions of this Agreement or its Exhibit; and in the event of
termination of the Agreement, CONTRACTOR’s duty (and its liability for failure or
refusal) to provide all such records shall survive the termination of this Agreement.
10.8 EXCUSE FROM PERFORMANCE
A. Excuse from Performance
The Parties shall be excused from performing their respective obligations hereunder in
the event they are prevented from so performing by reason of Uncontrollable
Circumstances. Labor unrest, including but not limited to strike, work stoppage or
slowdown, sick-out, picketing, or other concerted job action conducted by
CONTRACTOR’s employees or lawfully directed at CONTRACTOR, or a subcontractor
shall not constitute an excuse from continuing to provide a reasonably satisfactory level
of performance during the pendency thereof, and CONTRACTOR shall be obligated to
continue to provide an adequate level of service notwithstanding the occurrence of any
or all of such events. In the case of labor unrest or job action directed at a third party
98
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
over whom CONTRACTOR has no control, the inability of CONTRACTOR to make
collections due to the unwillingness or failure of the third party to provide reasonable
assurance of the safety of CONTRACTOR’s employees while making collections or to
make reasonable accommodations with respect to container placement and point of
delivery, time of collection, or other operating circumstances to minimize any
confrontation with pickets or the number of persons necessary to make collections,
shall, to that limited extent, excuse performance; provided, however, that such excuse
shall be conditioned on CONTRACTOR’s cooperation in making collection at different
times and in different locations.
B. Inexcuse from Performance
None of the following shall be considered an excuse from performance: (i) general
economic conditions, interest or inflation rates, or currency fluctuation or changes in the
cost of fuel, commodities, supplies or equipment; (ii) changes in transport or Disposal
costs, Disposal facility locations, and/or other related circumstances; (iii) changes in the
financial condition of CONTRACTOR or any of its subcontractors affecting their ability to
perform their obligations; (iv) the consequences of errors, neglect or omissions by
CONTRACTOR, or any subcontractor; (v) any failure of any subcontractor or supplier to
furnish labor, materials, service or equipment for any reason; and/or (vi) equipment
failure.
C. Interruption or Discontinuance of Service
The partial or complete interruption or discontinuance of CONTRACTOR’s services, if
reasonably limited in time and caused by one or more of the events constituting an
excuse from performance under Paragraph A of this Section, shall not constitute an
Event of Default by CONTRACTOR under this Agreement. Notwithstanding the
foregoing, however, the existence of an excuse from performance shall not affect
COUNTY’s right to perform services under Section 10.4.
10.9 RIGHT TO DEMAND ASSURANCES OF PERFORMANCE
If CONTRACTOR is: (i) the subject of any labor unrest including work stoppage or
99
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
slowdown, sick-out, picketing or other concerted job action; (ii) appears in the
reasonable judgment of COUNTY to be unable to regularly pay its bills as they become
due; or (iii) is the subject of a civil or criminal investigation, charge, or judgment or order
entered by a Federal, State, regional or local agency for violation of a law relating to
performance under this Agreement, and COUNTY believes in good faith that
CONTRACTOR’s ability to perform under the Agreement has thereby been placed in
substantial jeopardy, COUNTY may, at its option and in addition to all other remedies it
may have, demand from CONTRACTOR reasonable assurances of timely and proper
performance of this Agreement, in such form and substance as COUNTY believes in
good faith is reasonably necessary in the circumstances to evidence continued ability to
perform under the Agreement. If CONTRACTOR fails or refuses to provide satisfactory
assurances of timely and proper performance in the form and by the date required by
COUNTY, such failure or refusal shall be an Event of Default for purposes of
Section 10.2 and this Article 10.
ARTICLE 11
OTHER AGREEMENTS OF THE PARTIES
11.1 RELATIONSHIP OF PARTIES
The Parties intend that CONTRACTOR shall perform the Collection Services as an
independent contractor engaged by COUNTY and not as an officer or employee of
COUNTY, and also not as a partner of or joint venturer with COUNTY. No employee or
agent of CONTRACTOR shall be or shall be deemed to be an employee or agent of
COUNTY. Except as expressly provided herein, CONTRACTOR shall have the
exclusive control over the manner and means of conducting Collection Services and all
persons performing such services. CONTRACTOR shall be solely responsible to the
COUNTY for the acts and omissions of its officers, employees, subcontractors, and
agents. Neither CONTRACTOR nor any of its officers, employees, subcontractors, and
agents shall obtain any rights to retirement benefits, workers’ compensation benefits, or
any other benefits which accrue to COUNTY employees by virtue of their employment
100
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
with COUNTY. CONTRACTOR or its employees shall not provide, directly or indirectly,
any gifts or gratuities to any COUNTY employee or representative.
11.2 COMPLIANCE WITH LAW
In providing the services required under this Agreement, CONTRACTOR shall at all
times, at its sole cost (subject to rate adjustment provisions elsewhere in this
Agreement), comply with all Applicable Laws of the United States, the State of
California, Fresno County, and other states or governmental agencies which may have
jurisdiction over any service provided pursuant to this Agreement, and with all
applicable regulations promulgated by any Federal, State, regional, or local
administrative and regulatory agencies, now in force and as they may be enacted,
issued, or amended during the Term (including any Extension) of this Agreement,
including all permit requirements for facilities used in disposal activities relating to
CONTRACTOR’s provision of Collection Services hereunder.
11.3 GOVERNING LAW
This Agreement shall be governed by, and construed and enforced in accordance with,
the laws of the State of California.
11.4 JURISDICTION AND VENUE
Any lawsuits between the Parties arising out of this Agreement shall be brought and
concluded in the courts of the State of California, which shall have exclusive jurisdiction
over such lawsuits. With respect to venue, the Parties agree that this Agreement is
made in and will be performed in Fresno County.
11.5 ASSIGNMENT
A. Definition
For purposes of this Section 11.5, the term, “assignment” shall include, but not be
limited to: (i) a transfer by CONTRACTOR to another person or entity of all of
CONTRACTOR’s rights, duties and obligations under this Agreement; (ii) a sale,
exchange, or other transfer of substantially all of CONTRACTOR’s assets dedicated to
service under this Agreement to a third party; (iii) a sale, exchange, or other transfer of
101
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
fifty percent (50%) or more of the outstanding common stock of CONTRACTOR; (iv)
any reorganization, consolidation, merger, recapitalization, stock issuance or
reissuance, voting trust, pooling agreement, escrow arrangement, liquidation, or other
transaction to which CONTRACTOR or any of its shareholders is a party which results
in a change of ownership or control of fifty percent (50%) or more of the value or voting
rights in the stock of CONTRACTOR; and (v) any combination of the foregoing (whether
or not in related or contemporaneous transactions) which has the effect of any such
transfer or change of ownership. If CONTRACTOR is not a corporation, an assignment
shall also include, among other things, any transfer or reorganization that has an effect
similar to the situations described in foregoing sentence for corporations. For purposes
of this Article, the term “proposed assignee” shall refer to the proposed transferee(s) or
other successor(s) in interest pursuant to the assignment. If CONTRACTOR is a
subsidiary of another corporation or business entity, any assignment, as defined above,
by the parent company or corporation shall be considered an assignment by
CONTRACTOR.
B. COUNTY Consent
CONTRACTOR acknowledges that this Agreement involves rendering a vital service to
COUNTY’s residents and businesses, and that COUNTY has relied upon
CONTRACTOR’s representation of its experience and financial resources in qualifying
CONTRACTOR to provide Collection Services under this Agreement. Except as
provided in this Article or otherwise in this Agreement, CONTRACTOR shall not assign,
delegate, subcontract, or otherwise transfer any of its rights or obligations under this
Agreement to any other person or entity without the prior written consent of COUNTY.
Any such purported assignment without the consent of COUNTY shall be void and the
attempted assignment shall constitute a material breach of this Agreement. Under no
circumstances shall CONTRACTOR be entitled to have COUNTY give any
consideration whatsoever to any proposed assignment if there is an uncured Event of
Default at the time of the request, or at any time during the period such request is under
102
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
consideration.
C. Requirements of CONTRACTOR
If CONTRACTOR requests COUNTY’s consideration of and consent to an assignment,
COUNTY may approve or deny such request in the reasonable exercise of its
discretion. COUNTY agrees that its consent to such proposed assignment will not be
unreasonably withheld, and that no request submitted in accordance with the
requirements of this Paragraph 11.5.C will be denied without a detailed review of the
proposed assignment. Provided, however, and notwithstanding the foregoing,
COUNTY shall not be obligated to consider a request by CONTRACTOR for consent to
an assignment unless and until CONTRACTOR has met each of the following
requirements:
1. CONTRACTOR shall pay COUNTY its reasonable expenses for attorney’s
fees and investigation costs to investigate the suitability of any proposed
assignee, and to review and finalize any documentation required as a
condition for approving any such assignment.
2. CONTRACTOR shall furnish COUNTY with audited financial statements
of the proposed assignee’s operations for the immed iately preceding five
(5) operating years.
3. CONTRACTOR shall furnish COUNTY with satisfactory proof that the
proposed assignee has the demonstrated technical capability to perform
all Collection Services and to provide exceptional service to customers,
including: (i) that the proposed assignee has at least ten (10) years of
Solid Waste management experience on a scale equal to or exceeding the
scale of operations conducted by CONTRACTOR under this Agreement;
(ii) in the last five (5) years, the proposed assignee has not suffered any
significant citations or other censure from any Federal, State, or local
environmental laws and the assignee has provided COUNTY with a
complete list of such citations and censures; (iii) the proposed assignee
103
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
has at all times conducted its operations in an environmentally safe and
conscientious fashion; (iv) the proposed assignee conducts its Solid
Waste management practices in substantial compliance with all Federal,
State, and local laws regulating the Collection and Disposal of Solid Waste
including hazardous substances; (v) the proposed assignee has in the last
five (5) years provided excellent service to existing franchised customers
and has not been subject to any administrative or legal actions related to
failure to provide adequate service under a contract or franchise; and (vi)
any other information required by COUNTY to ensure the proposed
assignee can fulfill the terms of this Agreement in a timely, safe, and
effective manner. A formal written instrument of assignment shall be
executed by CONTRACTOR and the proposed assignee, which shall
provide for the proposed assignee’s acceptance of all terms and
conditions of this Agreement, including all duties and obligations imposed
thereby, and also the proposed assignee’s express adoption of the
representations of CONTRACTOR set forth herein as its own
representations. COUNTY reserves the right to approve an assignment
conditioned on an increase to the instrument for securing performance
required pursuant to Article 9 and/or use of another mechanism in addition
to, or as an alternative to, the instrument for securing performance
required in Article 9.
D. Required Statement for Conditionally Exempt Transfers
Notwithstanding any other provisions of this Section 11.5, if a written statement is
submitted to the COUNTY Representative in accordance with Subparagraph 11.5.D.1,
then a transfer of an ownership interest in CONTRACTOR's business of any type listed
in Subparagraph 11.5.D.2 shall not be deemed to constitute an assignment for
purposes of this Section.
///
104
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1. Required Statement for Exemption of Proposed Transfer
The written statement shall contain a representation that both
CONTRACTOR and the prospective transferee intend and expect that at
least two-thirds of those individuals responsible for the day-to-day
management and supervision of CONTRACTOR’s performance under this
Agreement, during the six (6)-month period immediately preceding the
anticipated date of the proposed transfer, will continue to be responsible
for CONTRACTOR’s performance under this Agreement for at least six (6)
months following such transfer. The written statement shall be executed
by both CONTRACTOR and the prospective transferee, and shall be
submitted to the COUNTY Representative at least thirty (30) days before
the anticipated date of transfer.
2. Conditionally Exempt Transfers of Ownership Interests
If the foregoing condition of exemption is met, by execution and
submission of the written statement in full compliance with the provisions
of the preceding Subparagraph 11.5.D.1, then the following transfers will
be deemed not to constitute an assignment and therefore will not be
subject to the provisions of Paragraphs B and C of this Section 11.5:
(a) If CONTRACTOR is a family-owned business (including a closely-
held corporation):
x Any transfer of ownership interests among existing owners
of CONTRACTOR;
x Any transfer of ownership interests by an existing owner of
CONTRACTOR to a revocable living trust for the benefit of
his or her family;
x Any transfer to a family member resulting from bequest,
intestate succession or otherwise by operation of law,
following an owner’s death. (In this case the requirements in
105
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Subparagraph 11.5.D.1 for execution of the statement by the
deceased owner and its submission thirty (30) days in
advance shall not apply, and the statement need then be
executed only by the transferee and submitted within a
reasonable time thereafter.)
(b) If CONTRACTOR is, or is owned, directly or indirectly by, a publicly
traded corporation: Any transfer of stock ownership that does not
directly result in an immediate change to CONTRACTOR’s
corporate identity.
E. Transition
If COUNTY consents to an assignment, CONTRACTOR shall cooperate fully with
COUNTY and subsequent CONTRACTOR(s) or subcontractor(s), and shall provide all
appropriate assistance to ensure an orderly transition. Such cooperation and
assistance shall include, but not be limited to, CONTRACTOR providing, to COUNTY
and the subsequent CONTRACTOR(s) or subcontractor(s), all route lists and billing
information listing accounts, and using CONTRACTOR’s Best Efforts to avoid and
minimize any disruption or inconvenience to Customers.
11.6 DISPUTE RESOLUTION
A. Continue Performance
Except for an event of termination, in the event of any dispute arising under this
Agreement, COUNTY and CONTRACTOR shall continue performance of their
respective obligations under this Agreement and shall attempt to resolve such dispute in
a cooperative manner, including but not limited to, negotiating in good faith.
B. Mediation
Any unresolved dispute arising between the Parties under this Agreement shall first be
submitted to non-binding mediation before a recognized mediator having experience
with agreements of this nature and that is mutually acceptable to the Parties, provided
that neither Party shall unreasonably withhold its acceptance. If the parties are unable,
106
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
after a period of thirty (30) days from commencement of the dispute resolution process,
to agree on a mediator, either Party shall be entitled to petition a court of competent
jurisdiction to appoint such a mediator for the Parties. Each Party shall bear its own
costs, including attorney’s fees, incurred in connection with the mediation. If the
mediation does not result in a resolution of the dispute that is acceptable to both
Parties, either Party may pursue its legal remedies.
11.7 NON-DISCRIMINATION
CONTRACTOR shall not discriminate in the provision of service or the employment of
persons engaged in performance of this Agreement on account of race, religious creed,
color, national origin, ancestry, physical handicap, medical condition, marital status, or
sex of such persons or as otherwise prohibited by law.
11.8 SUBCONTRACTING
A. CONTRACTOR shall not engage any subcontractors for performance of
Collection Services without the prior written consent of COUNTY, in accordance with
the provisions of this Paragraph 11.8.A.
1. Subcontract for Performance of Specified Types of Services.
CONTRACTOR may request COUNTY’S written consent to a proposed subcontracting
agreement between CONTRACTOR and another ESAP Hauler, pursuant to which
CONTRACTOR proposes that one or more specified types of Collection Services that
CONTRACTOR is responsible to provide hereunder (e.g., commercial recycling) shall
be provided to its Customers by the subcontracted ESAP Hauler to be retained for that
purpose. The request for COUNTY’S consent must be submitted in writing to the
COUNTY Representative and shall be accompanied by a copy of the proposed
subcontract, which necessarily would have to contain all provisions appropriate to
ensure CONTRACTOR’S continued and uninterrupted compliance with all of its
obligations to COUNTY hereunder in order to be considered for approval. The request
may be approved or denied in the sole discretion of the COUNTY Representative.
///
107
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2. Subcontracting of Specifically Identified Accounts
CONTRACTOR may request COUNTY’S written consent to a proposed subcontracting
agreement between CONTRACTOR and another ESAP Hauler, pursuant to which
CONTRACTOR proposes that one or more specified accounts maintained by
CONTRACTOR in connection with CONTRACTOR’S provision of Collection Services
hereunder (e.g., accounts pertaining to Customer(s) within a discrete and specifically
identified area within CONTRACTOR’S designated Exclusive Service Area, or
specifically identified accounts of a certain type) may be effectively delegated to the
subcontracted Hauler to be retained for that purpose, who subject to COUNTY’S
consent to such subcontract would then proceed to provide Collection Services to such
accounts pursuant thereto. The request for COUNTY’S consent must be submitted in
writing to the COUNTY Representative and shall be accompanied by a copy of the
proposed subcontract which necessarily would have to contain all provisions
appropriate to ensure CONTRACTOR’S continued and uninterrupted compliance with
all of its obligations to COUNTY hereunder in order to be considered for approval. The
request may be approved or denied in the sole discretion of the COUNTY
Representative.
3. Payment of COUNTY’S Costs is a Condition of Approval
CONTRACTOR and the other ESAP Haulers shall be jointly and severally responsible
for payment of COUNTY’S expenses for staff costs, including attorney’s fees, involved
in the review of any proposed subcontract pursuant to the provisions of either of the
immediately preceding Subparagraphs 11.8.A.1 or 11.8.A.2. Full payment of
COUNTY’S costs in connection with such review shall be a condition to the final written
consent of the COUNTY to any such proposed subcontract pursuant to this Paragraph
11.8.A. The Haulers will be invoiced for such costs once the provisions of the
proposed subcontract have been reviewed and verbally approved by the COUNTY
Representative, at which point the COUNTY’S written consent shall remain subject only
to prior payment of the invoice for COUNTY’S costs and execution of the subcontract by
108
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
a duly authorized officer of each Hauler. The Haulers may separately agree as to how
they may wish to allocate those costs as between themselves, but each is responsible
for the entire amount of the invoice until it has been paid in full.
4. CONTRACTOR Remains Entirely Responsible for Performance By
Subcontractor of CONTRACTOR’s Obligations Hereunder
The COUNTY’S consent to the proposed subcontracting agreement between
CONTRACTOR and another ESAP Hauler pursuant to this Paragraph 11.8.A shall
neither relieve nor diminish, in any manner or to any degree whatsoever,
CONTRACTOR’S continuing responsibility for the full performance of all of its
responsibilities pursuant to the provisions of this Agreement. CONTRACTOR hereby
acknowledges its understanding that, at all times following COUNTY’S written consent
to the proposed subcontracting agreement and throughout the remainder of the
Extension Term, CONTRACTOR would remain entirely responsible to the COUNTY for
such full performance of all of CONTRACTOR’S obligations hereunder.
5. Requisite Notices
a. Notice To Affected Customers
Promptly following issuance of COUNTY’S written consent to the
proposed subcontracting agreement, CONTRACTOR shall give a minimum of thirty (30)
days’ notice to all affected Customers informing them of the arrangement and the
resultant changes for billing and payment purposes regarding the continued provision of
each affected Customer’s Collection Services.
b. Limit on Termination of Subcontract / Notice To COUNTY
Although CONTRACTOR may, without the prior consent of COUNTY, terminate the
subcontract with the subcontracted Hauler, notice of such termination shall be given by
CONTRACTOR, both to the COUNTY Representative and to all affected Customers, no
less than thirty (30) days prior to such termination. In addition, for a period of twelve
(12) months following termination by CONTRACTOR of any such subcontract,
CONTRACTOR shall not request and COUNTY shall not consider any subsequent
109
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
proposal for another subcontracting agreement between CONTRACTOR and another
ESAP Hauler.
B. TRANSFER OF ACCOUNTS
CONTRACTOR may request COUNTY’S approval, based on a showing of good cause,
of a proposed transfer to another ESAP Hauler of CONTRACTOR’S responsibility
hereunder for the provision of Collection Services to certain specified Customer
account(s) (e.g., accounts pertaining to Customer(s) within a discrete and specifically
identified area within CONTRACTOR’S designated Exclusive Service Area, or
specifically identified accounts of a certain type). Such request must be submitted in
writing to the COUNTY Representative, and both CONTRACTOR as proposed
transferor and the other ESAP Hauler as proposed transferee must submit a written
statement (either a collective statement signed by both or a separate statement signed
by each), setting forth the reasons that they contend serve to establish the requisite
showing of good cause for the proposed transfer. The proposed transfer may
contemplate either an exchange of such account(s) or a purchase of such account(s),
and the request may be approved or denied in the sole discretion of the COUNTY’S
Board of Supervisors, in accordance with the provisions of this Paragraph 11.8.B.
1. Procedure for Review of Proposed Transfer of Accounts
If COUNTY Staff agrees that all requisite documentation has been submitted and that a
showing of good cause has at least arguably been made, the request will be submitted
to the COUNTY’S Board of Supervisors for its consideration and potential approval of
the proposed concept. If the Board of Supervisors grants its conceptual approval,
COUNTY staff will proceed to prepare amendments to each affected Hauler’s
respective ESAP Agreement and Exhibits thereto as appropriate. Following approval of
the proposed language and execution of the amendments by each of the affected
Haulers, and after payment of COUNTY’S costs in accordance with the provisions of the
immediately following Subparagraph 11.8.B.2, the proposed amendments shall be
presented to the COUNTY’S Board of Supervisors for its review, and recommended
110
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
approval and execution, of the proposed amendments.
2. Advance Payment by CONTRACTOR and the Proposed Transferee Hauler
of COUNTY’S Costs is a Condition of Approval
CONTRACTOR and the other ESAP Hauler shall be jointly and severally responsible for
payment of COUNTY’S expenses for staff costs, including attorney’s fees, involved in
the preparation of the amendments to each of the impacted Haulers’ respective ESAP
Agreements (and Exhibits thereto, as appropriate). The Haulers will be invoiced for
such costs once the amendments have been signed by each Hauler and the Agenda
Item has been for prepared for approval by the COUNTY’S Board of Supervisors of the
proposed amendments. The Haulers may agree separately as to how they may wish to
allocate those costs as between themselves, but each is responsible for the entire
amount of the invoice until it has been paid in full. Full payment of COUNTY’S costs
shall be a condition to the approval by the COUNTY’S Board of Supervisors of any such
transfer of accounts pursuant to this Paragraph 11.8.B. Receipt of such payment must
be received by the COUNTY Representative at least ten (10) working days prior to the
date scheduled for presentation of the proposed amendments for approval by the
COUNTY’S Board of Supervisors.
3. Notice to Affected Customers
Promptly following the Board of Supervisors’ approval of the proposed amendments,
CONTRACTOR and the other ESAP Hauler shall give a minimum of thirty (30) days’
notice to all affected Customers informing them of the resultant changes, for billing and
payment purposes, regarding the continued provision of each affected Customer’s
Collection Services.
11.9 BINDING ON SUCCESSORS
The provisions of this Agreement shall inure to the benefit of and be binding upon the
successors and permitted assigns of the Parties.
11.10 TRANSITION TO NEXT CONTRACTOR
If at any time COUNTY desires to grant, to any person or entity not a party hereto, those
111
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Collection Services that are contracted to CONTRACTOR under this Agreement,
CONTRACTOR shall be obligated to cooperate with COUNTY and such prospective
successor contractor, and to assist and cooperate in an orderly transition. One (1) year
prior to the conclusion of the Extension Term, and in order to assist with the competitive
bid process to award the Collection Services for the term immediately following the
conclusion of the Extension Term, CONTRACTOR shall provide COUNTY with such
information as may reasonably be requested, which at a minimum shall include all
information specified in Section 8.1F. CONTRACTOR shall cooperate with and
schedule with COUNTY and new CONTRACTOR its removal of all Carts distributed to
each Customer. CONTRACTOR and the new CONTRACTOR may choose at their
discretion to enter into negotiations to sell (in part or all) Collection vehicles, Bins, and
Containers to the new CONTRACTOR. Failure by CONTRACTOR to provide full
cooperation with a transition may, at COUNTY’s discretion, preclude CONTRACTOR
from participating in future competitive procurements, including the procurement of the
CONTRACTOR for the term that follows the Extension Term.
11.11 PARTIES IN INTEREST
Nothing in this Agreement, whether express or implied, is intended to confer any rights
on any persons other than the Parties to it and their representatives, successors and
permitted assigns.
11.12 WAIVER
The waiver by either Party of any breach or violation of any provisions of this Agreement
shall not be deemed to be a waiver of any breach or violation of any other provision, nor
of any subsequent breach of violation of the same or any other provision. The
subsequent acceptance by either party of any monies that become due hereunder shall
not be deemed to be a waiver of any preexisting or concurrent breach or violation by the
other party of any provision of this Agreement.
11.13 CONDEMNATION
In addition to the rights specified in Article 10, COUNTY fully reserves any and all other
112
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
rights available for the COUNTY’s use in acquiring CONTRACTOR’s property utilized in
the performance of this Agreement, including purchase or through exercise of
COUNTY’s right of eminent domain.
11.14 NOTICE
A. Notice Procedures
Except as otherwise specifically provided herein, all notices, demands, requests,
proposals, approvals, consents and other communications made in connection with this
Agreement shall be in writing and shall be effective when personally delivered to a
representative of the Parties at the address below or deposited in the United States
mail, first class postage prepaid, addressed as follows:
If to COUNTY: County of Fresno
Department of Public Works and Planning
2220 Tulare Street, 6th Floor
Fresno, California 93721
Attention: Deputy Director of Resources and Administration
If to CONTRACTOR: Tule Trash Company, LLC
P.O. Box 288
Pixley, California 93256
Attention: Richard L. Gress, Managing Member
Genice L. Price, Office Manager
The address to which communications may be delivered may be changed from time to
time by a notice given in accordance with this Section 11.14.
B. Facsimile and Electronic Mail Notice Procedures
1. Facsimile and/or electronic mail notice may be substituted for written
notice with the following limitations:
a. Facsimile and/or electronic mail notice shall be considered valid
and delivered during standard business hours and days, Monday
through Friday, at such time as an authorized representative of the
113
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
receiving Party acknowledges receipt in writing or by facsimile
and/or electronic mail acknowledgement to the sending party.
b. Written notice, in accordance with Paragraph A, must follow any
facsimile and/or electronic mail notice, in order for the facsimile
and/or electronic mail notice to be considered valid notice
hereunder.
2. If above conditions are met, facsimile and/or electronic mail notice will be
considered effective from date and time of transmission as indicated on
receiving Party’s original copy of the transmission.
3. Facsimile and/or electronic mail notices must be sent to the following
addressees:
If to COUNTY:
Deputy Director of Resources and Administration
Fax number: (559) 600-4552
Electronic mail: jothompson@co.fresno.ca.us
If to CONTRACTOR:
Richard L. Gress, Managing Member
Fax number: (559) 757-5002
Electronic mail: richardg@tuletrash.com
tuletrashco@gmail.com
4. The facsimile number and/or electronic mail address to which
communications may be transmitted may be changed from time to time by
a notice given in accordance with this Section 11.14.
11.15 REPRESENTATIVES OF THE PARTIES
All actions to be taken by or on behalf of COUNTY with respect to this Agreement shall
be taken by the Board of Supervisors, except as expressly provided to the contrary in
this Article 11 or elsewhere in the Agreement. The Board of Supervisors hereby
delegates the authority to take those actions specified in this Article to the Director of
114
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
the Department of Public Works and Planning, who may in turn delegate such authority
to the manager and other subordinate officers of that Department’s Resources Division,
as he or she deems appropriate. CONTRACTOR may rely upon actions taken by such
delegates if they are within the scope of the authority properly delegated to them.
1. Director of the Department of Public Works and Planning or his/her
designee shall be responsible for administration of this Agreement on
behalf of COUNTY.
2. Director of the Department of Public Works and Planning or his/her
designee may delegate authority to appropriate COUNTY employees or
other appropriate persons.
3. Board of Supervisors reserves to itself all discretionary and administrative
authority not otherwise expressly delegated pursuant to ordinance. In all
instances that require prior approval by COUNTY under this Agreement,
such approval may be given by the Deputy Director of Resources and
Administration or his or her designee, subject to appeal to the Board of
Supervisors by CONTRACTOR.
CONTRACTOR shall, no later than the Operative Date, designate in writing a
responsible officer, or duly authorized officer, who shall serve as the representative of
CONTRACTOR in all matters related to the Agreement and shall inform COUNTY in
writing of such designation and of any limitations upon his/her authority to bind
CONTRACTOR. COUNTY may rely upon action taken by such designated
representative as action of CONTRACTOR unless they are outside the scope of the
authority delegated to him/her by CONTRACTOR as communicated to COUNTY.
11.16 COUNTY FREE TO NEGOTIATE WITH THIRD PARTIES
COUNTY may, at any time, investigate all options for the provision of the exclusive
services granted to CONTRACTOR by this Agreement. Without limiting the generality
of the foregoing, COUNTY may solicit proposals from CONTRACTOR and from third
parties for the provision of any or all Collection Services and may negotiate and execute
115
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
agreements for such services which will take effect upon expiration of the Extension
Term, or earlier termination of this Agreement under Article 10, and/or with respect to
any future agreements.
11.17 CONTRACTOR ELECTION TO DEFEND VALIDITY OF AGREEMENT
CONTRACTOR may at its election and sole expense, defend the validity of this
Agreement against all challenges to the Agreement by any entity or person not a Party
to this Agreement. Neither COUNTY nor CONTRACTOR shall have any liability to the
other resulting from a determination that this Agreement violates any Federal or State
law, statute, or constitutional provision, except to the extent such determination relates
to CONTRACTOR’s willful misconduct or gross negligence. However, if the
CONTRACTOR elects to not defend the validity of this Agreement, the COUNTY may,
upon reasonable notice, terminate the Agreement at its election, and if it makes that
election, it shall have no liability to CONTRACTOR resulting from that election to
terminate. CONTRACTOR’s sole remedy shall be to retain its share of Rate Revenues
as specified in Article 6, for services rendered by CONTRACTOR up to the date of
termination, less any offsets or monies due the COUNTY under the provisions of this
Agreement. Notwithstanding the CONTRACTOR’s option to defend the validity of this
Agreement as provided above, COUNTY agrees to take such action as may be
necessary or appropriate, during the Base Term (and any Extension) hereof, to
maintain, or assist in the defense of, CONTRACTOR’s exclusive right to provide
Collection Services within the Exclusive Service Area specified in Exhibit C.
11.18 GOOD FAITH AND EXERCISE OF OPTIONS
Each Party’s performance under this Agreement, includin g its exercise of any option,
approval or discretion it may possess hereunder, and each Party’s interpretation of this
Agreement, shall be reasonable and consistent with the intent to deal fairly and in good
faith with the other Party hereto, in regard to the respective obligations binding on each
Party toward the other Party, as set forth throughout the provisions hereof. To that end,
the CONTRACTOR agrees at all times to perform its obligations hereunder in a
116
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
commercially reasonable manner that: (1) meets or exceeds regional and national
industry standards for solid waste collection and Disposal; (2) upholds the public
confidence entrusted by COUNTY to the CONTRACTOR hereunder for the
performance of duties critical to the public; and (3) reflects CONTRACT OR’s
cooperation with COUNTY to assist in COUNTY’s achievement of State goals detailed
in Section 3.8. On its part, COUNTY similarly shall be guided at all times in the
performance of its obligations hereunder by COUNTY’s duty to uphold the public
interest, including but not limited to the protection of the health, safety and welfare of all
residents of the County.
ARTICLE 12
MISCELLANEOUS PROVISIONS
12.1 ENTIRE AGREEMENT
This Amended and Successor Agreement constitutes the entire agreement between the
CONTRACTOR and COUNTY with respect to the subject matter hereof and supersedes
all previous negotiations, proposals, commitments, writings, advertisements, publications,
and understandings of any nature whatsoever unless expressly included in this
Agreement.
12.2 REFERENCES TO LAWS
All references in this Agreement to laws shall be understood to include such laws as
they may be subsequently amended or recodified, unless otherwise specifically
provided.
12.3 NO INTERPRETATION FOR EITHER PARTY / NO INDUCEMENTS
Each of the Parties has received the advice of legal counsel prior to signing this
Agreement. Each Party acknowledges no other party or agent or attorney has made a
promise, representation, or warranty whatsoever, express or implied, not contained
herein concerning the subject matter herein to induce another party to execute this
Agreement. The Parties agree no provision or provisions may be subject to any rules of
construction based upon any party being considered the party “drafting” this Agreement .
117
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
12.4 MODIFICATION
Any matters of this Agreement may be modified from time to time by the written consent
of both Parties without, in any way, affecting the remainder.
12.5 SEVERABILITY
If any provision of this Agreement is for any reason found or deemed to be invalid or
unenforceable, this Agreement shall be construed as not containing such provision. All
other provisions of this Agreement which are otherwise lawful shall remain in full force
and effect, and shall be enforced as if such invalid or unenforceable provision had not
been contained herein, and to this end the provisions of this Agreement are hereby
declared to be severable.
12.6 COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be considered an
original.
12.7 NOTICES
This Section 12.7 has been deleted as its provisions have been combined in this
Amended and Successor Agreement with those in Section 11.14 above.
12.8 PRIVACY
CONTRACTOR shall strictly observe and protect the rights of privacy of Customers
during provision of all Collection Services. Information identifying individual Customers
or the composition or contents of Customer’s Solid Waste, Recyclables, Green Waste
or Organic Materials shall not be revealed to any person, governmental unit, private
agency, or company, unless upon the authority of a court of law, by statute, written
request from a law enforcement agency, or upon valid authorization of the Customer.
This provision shall not be construed to preclude CONTRACTOR from preparing,
participating in, or assisting in the preparation of waste characterizations studies or
waste stream analysis which may be required by a regional, Federal or State agency.
12.9 INTERPRETATION: TEXT / EXHIBITS
This Agreement shall be interpreted and construed reasonably and neither for nor
118
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
against either Party, without reference to and regardless of the degree to which either
Party participated in its drafting. In the event of any inconsistencies or disputes between
the text of this Agreement and the exhibits hereto, the text of this Agreement shall
control and govern.
///
///
///
///
///
///
///
///
///
///
///
///
///
///
///
///
///
///
///
///
///
///
///
///
,•'1
1
2
3
4
5
6
7
8
9
10
11
"12
13
14
15
16
17
18
"19
20
21
22
23
24
25
26
27
28
,,
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
CONTRACTOR
PrTnt Name -
Tule Trash Company, LLC
P.O. Box 288
Pixley, California 93256
(559) 757-1045
FOR ACCOUNT~NG USE ONlY:
ORG: 9015 9015
!FUND: 0701 0701
SUBCLASS: 15003 15002
ACCOUNT: 1450 1450
9020
0720
15000
5800
119
COUNTY OF FRESNO
By --=-IL=--~J_--=----
Brian Pacheco, Chairman
Board of Supervisors
ATTEST:
Bernice E. Seidel, Clerk
Board of Supervisors
By c't.bL, ~
Deputy
9026
0700
l~.OQQ
7295
(;+,%,76
(;+,%,7$ 6&23(2)6(59,&(6
(;+,%,7% 3(5)250$1&(67$1'$5'6
(;+,%,7& (;&/86,9(6(59,&($5($1$55$7,9(
(;+,%,7& (;&/86,9(6(59,&($5($7(55,725<%281'$5<
0$3
(;+,%,7& (;&/86,9(6(59,&(5$7($5($=21(0$3
(;+,%,7& 6(50$3
(;+,%,7' 6&+('8/(2)0$;,080&$57&2//(&7,215$7(6
(;+,%,7' 6&+('8/(2)0$;,080%,1&2//(&7,215$7(6
(;+,%,7' 6&+('8/(2)63(&,$/6(59,&(5$7(
(;+,%,7' 6&+('8/(2)&20081,7<&/($1835$7(6
(;+,%,7( /,48,'$7(''$0$*(6
(;+,%,7) 48$57(5/<5(0,77$1&((;$03/($1'
5(9(18(5(3257,1*)250
(;+,%,7* &3,$'-8670(17
(;+,%,7+ $'-8670(172)',6326$/7,33,1*)((
(;+,%,7, &$/&8/$7,21)256(5)((&20321(172)5$7(6
(;+,%,7- $%5(32576
(;+,%,7. $%5(32576
(;+,%,7 $
6&23(2)6(59,&(6
*(1(5$/
&2175$&725LVWRSHUIRUPWKHIROORZLQJVHUYLFHVXQGHUWKH$JUHHPHQW
x 6ROLG:DVWH&ROOHFWLRQ
UHVLGHQWLDOVHUYLFHXVLQJ&DUWV RU%LQVLIUHTXHVWHG
FRPPHUFLDOVHUYLFHXVLQJ&DUWVRU%LQV
x 5HF\FODEOH0DWHULDOV&ROOHFWLRQIURPVLQJOHIDPLO\PXOWLIDPLO\PRELOHKRPH
SDUNVDQGFRPPHUFLDO&XVWRPHUVIRU6LQJOH6WUHDPDQGRWKHU5HF\FODEOHV
x *UHHQ:DVWH&ROOHFWLRQIURPUHVLGHQWLDO&XVWRPHUV2UJDQLF0DWHULDOV
&ROOHFWLRQIURP &XVWRPHUVSXUVXDQWWRPDQGDWRU\FROOHFWLRQUHTXLUHPHQWV
XQGHU6WDWHODZ
x 5HF\FODEOH0DWHULDOVSURFHVVLQJDQGPDUNHWLQJVHUYLFHV
x 2WKHUVHUYLFHV
&RPPXQLW\&OHDQ8S(YHQWVHUYLFHV
2QFDOO%XON\,WHPFROOHFWLRQ
6LGH\DUGVHUYLFHIRUGLVDEOHGRUHOGHUO\UHVLGHQWLDOFXVWRPHUV
)RUDOOVHUYLFHVUHTXLUHGXQGHUWKH$JUHHPHQW&2175$&725ZLOOEHUHVSRQVLEOHIRU
SXUFKDVLQJGLVWULEXWLQJDQGPDLQWDLQLQJDQ\&ROOHFWLRQ&DUWVRU%LQVSURYLGHGWR
&XVWRPHUV7KHFRVWRIDQ\VXFK&RQWDLQHUVLVWREHLQFOXGHGLQWKH5DWHV
&2175$&725VKDOOQRWVHSDUDWHO\ELOO&XVWRPHUVIRUWKHUHQWDORUXVHRI&DUWVRU%LQV
)RUDOOVHUYLFHVUHTXLUHGXQGHUWKH$JUHHPHQW&2175$&725ZLOOEHUHVSRQVLEOHIRU
IROORZLQJ+HDOWK&RGHUHTXLUHPHQWVWRFROOHFWSXWUHVFLEOHVZHHNO\
([KLELW$
3DJHRI
3D\PHQWRIDOOWUDQVIHU'LVSRVDODQGSURFHVVLQJIDFLOLW\WLSSLQJIHHVDUHSDUWRIWKH
&2175$&725¶VREOLJDWLRQVXQGHUWKH$JUHHPHQW&RPSHQVDWLRQIRUVXFKH[SHQVHV
ZLOOEHSDUWRIWKH&2175$&7255DWHV
62/,':$67(&2//(&7,21
6ROLG:DVWH&ROOHFWLRQ6HUYLFHVZLOOLQFOXGHWKHIROORZLQJVHUYLFHV
6ROLG:DVWH&ROOHFWLRQLQ&DUWVIRUUHVLGHQWLDODQGFRPPHUFLDO&XVWRPHUV
6ROLG:DVWH&ROOHFWLRQLQ%LQVIRUUHVLGHQWLDODQGFRPPHUFLDO&XVWRPHUV
&2175$&725LVUHVSRQVLEOHIRUFROOHFWLQJDQGWUDQVSRUWLQJ6ROLG:DVWHWRWKH
'LVSRVDORU7UDQVIHU)DFLOLW\ DQGFRQIRUPLQJZLWKWKH'LVSRVDORU7UDQVIHU)DFLOLW\¶V
UHFHLYLQJDQGXQORDGLQJVWDQGDUGVDQGKRXUVRIRSHUDWLRQ
&DUW6HUYLFH
&2175$&725VKDOOSURYLGHDWOHDVWZHHNO\6ROLG:DVWH&ROOHFWLRQ6HUYLFHVWR
&XVWRPHUVUHFHLYLQJ&DUW6HUYLFH7KHVWDQGDUGVHUYLFHZLOOLQFOXGHFROOHFWLRQDWWKH
FXUERUDFHQWUDOL]HGVHUYLFHORFDWLRQDQGVKRXOGEHDWDPLQLPXPSURYLGHGXVLQJ
VHPLDXWRPDWHGRUDXWRPDWHGFROOHFWLRQYHKLFOHV&2175$&725ZLOOSURYLGHVLGH
\DUGVHUYLFHWRGLVDEOHGDQGHOGHUO\FXVWRPHUVIRUIUHHDQGWRRWKHULQGLYLGXDOVGHVLULQJ
WKHFRQYHQLHQFHRIVLGH\DUGSLFNXSDWD6SHFLDO6HUYLFH)HH
&2817<UHTXLUHVSURYLVLRQRILQGXVWU\VWDQGDUGZKHHOHG&DUWVIRU6ROLG:DVWHZLWK
DWWDFKHGOLGVLQWKHIROORZLQJFDSDFLWLHV DSSUR[LPDWHO\WKLUW\ JDOORQV LQ=RQH
6HUYLFH5DWH$UHDRQO\ VL[W\ JDOORQVDQGQLQHW\ JDOORQV
%LQ6HUYLFH
&2175$&725ZLOOSURYLGHFROOHFWLRQRI6ROLG:DVWHJHQHUDWHGE\UHVLGHQWLDORU
FRPPHUFLDO&XVWRPHUVUHFHLYLQJ%LQ6HUYLFHZLWKFRQWDLQHUVL]HVDQGFROOHFWLRQ
IUHTXHQFLHVWRVHUYHWKHQHHGVRIWKH&XVWRPHU7KH&ROOHFWLRQ&RQWDLQHUVL]HZLOOEH
YDULDEOHKDYLQJDFDSDFLW\RIRQH WROHVVWKDQ WHQ FXELF\DUGV&DUWDQG%LQ
([KLELW$
3DJHRI
VHUYLFHZLOOEHSURYLGHGRQDUHJXODUO\VFKHGXOHGEDVLVDWDIUHTXHQF\QRWOHVVWKDQ
RQFHSHUZHHNUHTXHVWHGE\WKH&XVWRPHU$OOPDWHULDOVDUHWREHFROOHFWHGDWWKHFXUE
RUFHQWUDOL]HGVHUYLFHORFDWLRQRQDZHHNO\EDVLVRQWKHVDPHGD\ZLWKLQWKH=RQH
DQG=RQH6HUYLFH5DWH$UHDV SURYLGHGKRZHYHUWKDW=RQH6HUYLFH5DWH$UHD
&RQWUDFWRUVZLOOQRWEHUHTXLUHGWRSURYLGHVDPHGD\VHUYLFH 6HUYLFHVVKDOOLQFOXGHWKH
PLQLPXPOHYHORI6LQJOH6WUHDP5HF\FOLQJ*UHHQ:DVWHDQG2UJDQLF0DWHULDOV
6HUYLFHVVSHFLILHG LQWKLV([KLELW&2175$&725PD\SURYLGHDGGLWLRQDOVSHFLDO
VHUYLFHV HJ ORQJZDONVHQFORVXUHVH[WUD6ROLG:DVWHSLFNXSHWF IRUDGGLWLRQDO
)HHV
5(&<&/$%/(0$7(5,$/6&2//(&7,21
6LQJOH6WUHDP5HF\FODEOHVZLOOEHFROOHFWHGIURP&XVWRPHUVUHFHLYLQJ&DUW6HUYLFH
XVLQJIXOO\FRPPLQJOHGXVLQJZKHHOHG&DUWV&2175$&725ZLOOSURYLGHLQGXVWU\
VWDQGDUGDSSUR[LPDWH RU JDOORQFDSDFLW\ZKHHOHG&DUWVIRUDOO5HF\FODEOHV
&XVWRPHUV$SSUR[LPDWHQLQHW\ JDOORQ&DUWVZLOOEHSURYLGHGDVWKHGHIDXOWVL]HIRU
EDVLFVHUYLFHXQOHVV&XVWRPHUUHTXHVWVRWKHUZLVH
7KH5HF\FODEOHV &ROOHFWLRQ6HUYLFHVZLOOEHSURYLGHGDWOHDVWZHHNO\RQWKHVDPHGD\
DV6ROLG:DVWHFROOHFWLRQZLWKLQ=RQHVDQG KRZHYHUWKH=RQH6HUYLFH5DWH$UHD
&RQWUDFWRUVZLOOQRWEHUHTXLUHGWRSURYLGHVDPHGD\VHUYLFH5HF\FODEOHVFROOHFWHG
IURPDOO&XVWRPHUVWKDWUHFHLYH6ROLG:DVWH&DUW6HUYLFHVKDOOEHFROOHFWHGFXUEVLGH
&2175$&725VKDOOELOOHDFK&XVWRPHUDFFRUGLQJWRWKHVL]H&RQWDLQHUXVHGIRU6ROLG
:DVWH6HUYLFHDVSURYLGHGLQ([KLELW'UHJDUGOHVVRIWKH5HF\FOLQJ&DUWDQG*UHHQ
:DVWH&DUWVL]HVUHTXHVWHGE\&XVWRPHU &2175$&725ZLOOSURYLGHVLGH\DUG
VHUYLFHWRGLVDEOHGDQGHOGHUO\FXVWRPHUVIRUIUHHDQGDWD6SHFLDO6HUYLFH)HHWR
RWKHULQGLYLGXDOVGHVLULQJWKHFRQYHQLHQFHRIVLGH\DUGSLFNXS5HF\FODEOHVFROOHFWHG
IURP&XVWRPHUVWKDWUHFHLYH 6ROLG:DVWH%LQ6HUYLFHVXEVFULELQJIRU5HF\FODEOHV
([KLELW$
3DJHRI
&ROOHFWLRQVHUYLFHVKDOOEHFROOHFWHGIURPGHVLJQDWHG&RQWDLQHUVDWRQHRUPRUHRQVLWH
ORFDWLRQVGHVLJQDWHGE\WKHSURSHUW\RZQHU
7KHPDWHULDOVWREHFROOHFWHGZLOOLQFOXGHEXWDUHQRWOLPLWHGWRWKHIROORZLQJ
x 1HZVSDSHU LQFOXGLQJLQVHUWVFRXSRQVDQGVWRUHDGYHUWLVHPHQWV
x &KLSERDUG
x &RUUXJDWHGFDUGERDUG
x 0L[HGZDVWHSDSHU LQFOXGLQJRIILFHSDSHUFRPSXWHUSDSHUPDJD]LQHVMXQN
PDLOFDWDORJV.UDIWEDJVDQG.UDIWSDSHUSDSHUERDUGHJJFDUWRQVSKRQH
ERRNVEURZQSDSHUJURFHU\EDJVFRORUHGSDSHUFRQVWUXFWLRQSDSHU
HQYHORSHVOHJDOSDGEDFNLQJVVKRHER[HVFHUHDODQGRWKHUVLPLODUIRRG
ER[HV
x *ODVVFRQWDLQHUV LQFOXGLQJEURZQFOHDUDQGJUHHQJODVVERWWOHVDQGMDUV
x 0LONVR\DQGMXLFHFDUWRQV
x $OXPLQXP LQFOXGLQJEHYHUDJHFRQWDLQHUVIRRGFRQWDLQHUVVPDOOVFUDSPHWDO
x 6WHHORUWLQFDQV
x 6FUDSPHWDO IHUURXVDQGQRQIHUURXV
x $OOSODVWLFFRQWDLQHUVWKURXJK
x $Q\RWKHUPDWHULDOVPXWXDOO\DJUHHGWRE\WKH&2175$&725DQGWKH
&2817<
&2175$&725PD\ SURSRVHIRU&XVWRPHUVUHFHLYLQJ%LQ6HUYLFHDPHWKRGRI
FROOHFWLQJWKH5HF\FODEOH0DWHULDOVZKLFKLVGLIIHUHQWWKDQWKDWGHVFULEHGIRU&DUW
&XVWRPHUVSURYLGHGWKDWDOOPDWHULDOVOLVWHGLQWKLVVHFWLRQDUHFROOHFWHG
&2175$&725ZLOODFFHSWUHVSRQVLELOLW\IRUPDLQWDLQLQJPLQLPXPFRQWDPLQDWLRQOHYHOV
RIWKH5HF\FODEOH0DWHULDOV&2175$&725LVUHVSRQVLEOHWRUHSRUWKRZPXFK
5HVLGXDOZDVJHQHUDWHGE\ZHLJKWRIWKHPDWHULDOVSURFHVVHGIRU5HF\FOLQJ
([KLELW$
3DJHRI
&2175$&725ZLOOFROOHFWDQGWUDQVSRUWWKH5HF\FODEOH0DWHULDOVWRDUHF\FODEOHV
SURFHVVLQJIDFLOLW\VHOHFWHGE\&2175$&725
*5((1:$67(&2//(&7,21
&2175$&725ZLOOSURYLGH*UHHQ:DVWH&ROOHFWLRQ6HUYLFHVWRDOOUHVLGHQWLDO
&XVWRPHUV&2175$&725ZLOOSURYLGHLQGXVWU\VWDQGDUGDSSUR[LPDWHVL[W\ RU
QLQHW\ JDOORQFDSDFLW\ZKHHOHG&DUWVIRU*UHHQ:DVWH6HUYLFH&XVWRPHUV
$SSUR[LPDWHQLQHW\ JDOORQ&DUWVZLOOEHSURYLGHGDVWKHGHIDXOWVL]HIRUEDVLF
VHUYLFHXQOHVV&XVWRPHUUHTXHVWVRWKHUZLVH &DUWFROOHFWLRQVKRXOGEHSURYLGHGXVLQJ
VHPLDXWRPDWHGRUDXWRPDWHGFROOHFWLRQYHKLFOHV*UHHQ:DVWH&ROOHFWLRQ6HUYLFHVZLOO
EHSURYLGHGDWOHDVWZHHNO\RQWKHVDPHGD\DV6ROLG:DVWHDQG5HF\FODEOH0DWHULDO
&ROOHFWLRQ6HUYLFHVZLWKLQWKH=RQHDQG=RQH6HUYLFH5DWH$UHDV SURYLGHG
KRZHYHUWKDW=RQH6HUYLFH5DWH$UHD&RQWUDFWRUVZLOOQRWEHUHTXLUHGWRSURYLGH
VDPHGD\VHUYLFH &2175$&725VKDOOELOOHDFK&XVWRPHUDFFRUGLQJWRWKHVL]H
&RQWDLQHUXVHGIRU6ROLG:DVWH6HUYLFHDVSURYLGHGLQ([KLELW'UHJDUGOHVVRIWKH
5HF\FOLQJ&DUWDQG*UHHQ:DVWH&DUWVL]HVUHTXHVWHGE\&XVWRPHU&2175$&725
ZLOOSURYLGHVLGH\DUGVHUYLFHWRGLVDEOHGDQGHOGHUO\FXVWRPHUVIRUIUHHDQGWRRWKHU
LQGLYLGXDOVGHVLULQJWKHFRQYHQLHQFHRIVLGH\DUGSLFNXSDWD6SHFLDO6HUYLFH)HH
&2175$&725VKDOOGHOLYHUSXEOLFHGXFDWLRQPDWHULDOVWRDOO&DUW&XVWRPHUVSULRUWR
WKH2SHUDWLYH'DWH
7KHPDWHULDOVWREHFROOHFWHGZLOOLQFOXGHEXWDUHQRWOLPLWHGWRWKHIROORZLQJ
x %UDQFKHV OHVV WKDQWKUHHLQFKHV>´@LQGLDPHWHU
x %UXVK
x &XWIORZHUV
x 'HDGSODQWV
x *UDVVFOLSSLQJV
([KLELW$
3DJHRI
x +RXVHSODQWV
x /HDYHV
x 3UXQLQJV
x 6KUXEV
x :HHGV
x :RRG XQFRDWHGXQWUHDWHG
x :RRGFKLSV
x <DUGWULPPLQJV
x &KULVWPDVWUHHV FXWLQWRWZR>@IRRWVHFWLRQVDQGSODFHGLQWKH*UHHQ:DVWH
&DUWZLWKRXWIORFNLQJGHFRUDWLRQRUPHWDORUSODVWLFVWDQGV
25*$1,&0$7(5,$/6&2//(&7,21$1'352&(66,1*
$VPRUHWKRURXJKO\SURYLGHGLQ3DUDJUDSK( &2175$&725VKDOOPDNHDYDLODEOH
FROOHFWLRQDQGSURFHVVLQJRI2UJDQLF0DWHULDOVIRU&XVWRPHUVWKDWPXVWFRPSO\ZLWK
$%DQGRU6% LQFOXGLQJ*UHHQ:DVWH &XUUHQWO\WKRVHODZVDSSO\WR
FRPPHUFLDO&XVWRPHUV'XULQJWKHOLIHRIWKLV$JUHHPHQWLWLVH[SHFWHGWKDWWKRVHODZV
ZLOOLQFOXGHUHTXLUHPHQWVIRUUHVLGHQWLDO&XVWRPHUVDVZHOO 7KHUDWHIRU
&2175$&725WRSURYLGH2UJDQLF0DWHULDOV&ROOHFWLRQDQG3URFHVVLQJ6HUYLFHVVKDOO
EHRIWKHPD[LPXP6ROLG:DVWH&ROOHFWLRQUDWHVRIFRPSDUDEOHVL]HDQG
IUHTXHQF\SOXVWKHDFWXDOFRVWSHUWRQIRUWUDQVIHUDQGRU2UJDQLF0DWHULDOV3URFHVVLQJ
3ULRUWRWKHLPSOHPHQWDWLRQRIWKLVVHUYLFHWKH&2175$&725DQGWKH&2817< ZLOO
PHHWDQGFRQIHUWRHVWDEOLVK5DWHVIRUWKLVVHUYLFHEDVHGRQWKHXVHRIDQ2UJDQLF
0DWHULDO3URFHVVLQJ)DFLOLW\PXWXDOO\DJUHHGXSRQE\WKH&2175$&725DQGWKH
&RXQW\)RU2UJDQLF0DWHULDOV&ROOHFWLRQSURYLGHGDWDIUHTXHQF\RIPRUHWKDQRQFHSHU
ZHHNUDWHVIRUDQDGGLWLRQDO2UJDQLF0DWHULDOV&ROOHFWLRQVHUYLFHVKDOOQRWH[FHHG
RIWKHUDWHIRURQFHSHUZHHNVHUYLFH 7KHVH2UJDQLF0DWHULDOV&ROOHFWLRQWUDQVIHUDQG
([KLELW$
3DJHRI
3URFHVVLQJUDWHVPD\EHDGMXVWHGDQQXDOO\XSRQUHTXHVWIURP&2175$&725WRWKH
&2817<IROORZLQJWKHSURFHGXUHGHWDLOHGLQ6HFWLRQ%RUDVRWKHUZLVHPXWXDOO\
DJUHHGXSRQE\&2817<DQG&2175$&725$UHYLHZWRFRQVLGHUDGMXVWPHQWRI
WKHVHUDWHVPD\EHLQLWLDWHGDWDQ\WLPHGXULQJWKH\HDUEXWZLOOEHOLPLWHGWRQRPRUH
WKDQRQHDGMXVWPHQWSHUFDOHQGDU\HDU7KLVUHYLHZFRXOGLQFOXGHERWKNQRZQDQG
DQWLFLSDWHGFKDQJHVLQSURFHVVLQJFRVWV7KHVHUDWHVZLOODOVREHDGMXVWHGWKHVDPH
ZD\WKDWVROLGZDVWHUDWHVDUHDGMXVWHGDWRI&3,IRUELQVDQGRI&3,IRUFDUWV
EDVHGRQIL[HGYVYDULDEOHFRVWV7KHDGMXVWHGUDWHVPXVWEHDSSURYHGE\WKH
&2817<%RDUGRI6XSHUYLVRUVE\WKHHQGRI)HEUXDU\RUDVSDUWRIWKH$QQXDO&3,
DGMXVWPHQWLQ0DUFKWRVWDUWRQ-XO\
75$163257$1' ',6326$/2)62/,':$67(
$VSURYLGHGLQ3DUDJUDSK$FRPPHQFLQJZLWKWKH2SHUDWLYH'DWHRIWKLV$PHQGHG
DQG6XFFHVVRU$JUHHPHQWDQGFRQWLQXLQJWKURXJKRXWWKH([WHQGHG7HUP
&2175$&725H[SUHVVO\DJUHHVWRGHOLYHUWRWKH$PHULFDQ$YHQXH'LVSRVDO6LWH
$$'6 IRUGLVSRVDODWVDLG'HVLJQDWHG'LVSRVDO6LWHDOORIWKH6ROLG:DVWHFROOHFWHG
ZLWKLQWKHXQLQFRUSRUDWHGDUHDVRI)UHVQR&RXQW\
$VSURYLGHGLQ3DUDJUDSK%&2175$&725PD\DSSO\WRWKH'LUHFWRURI3XEOLF
:RUNVDQG3ODQQLQJ 'LUHFWRU IRUDQH[HPSWLRQIURPWKH)ORZ&RQWUROUHTXLUHPHQWVHW
IRUWKLQ3DUDJUDSK$ 7KHDSSOLFDWLRQPXVWSURYLGHVXIILFLHQW IDFWXDO MXVWLILFDWLRQWR
VXSSRUWWKHUHTXHVWHGH[HPSWLRQZKLFKLQWKHILUVWLQVWDQFHVKDOOEHJUDQWHGXSRQWKH
UHDVRQDEOHGHWHUPLQDWLRQE\WKH'LUHFWRUWKDW&2175$&725¶6DSSOLFDWLRQHVWDEOLVKHV
IDFWVVXIILFLHQWWRPHHWDOO RIWKH FLUFXPVWDQFHVOLVWHGLQDQ\RQHRIWKH3DUWV D WKURXJK
H RI6XESDUDJUDSK%
$VSURYLGHGLQ6XESDUDJUDSK%DQH[HPSWLRQJUDQWHGWR&2175$&725VKDOOEH
YDOLGRQO\IRUDSHULRGRIWKUHH \HDUVIROORZLQJWKHGDWHRQZKLFKLWLVJUDQWHGDW
([KLELW$
3DJHRI
ZKLFKWLPHWKHH[HPSWLRQZLOOH[SLUHE\LWVWHUPV3URYLGHGKRZHYHUWKDWWKH
&2175$&725PD\VXEPLWDQDSSOLFDWLRQWRJHWKHUZLWKVXIILFLHQWH[SODQDWRU\IDFWXDO
MXVWLILFDWLRQWRVXSSRUWDQH[WHQVLRQRIWKHH[HPSWLRQQRWPRUHWKDQVL[ PRQWKV DQG
QRWOHVVWKDQ GD\VSULRUWRLWVH[SLUDWLRQ 7KHH[WHQVLRQPD\EHJUDQWHGLQWKH
GLVFUHWLRQRIWKH'LUHFWRUEDVHGRQWKHIDFWVSUHVHQWHGLQWKHDSSOLFDWLRQDQGRWKHU
UHOHYDQWIDFWRUVZKLFKPD\LQFOXGHHFRQRPLFFRQVLGHUDWLRQVUHODWLQJWR$$'6
RSHUDWLRQV ,IDQ\H[HPSWLRQJUDQWHGWR&2175$&725H[SLUHVE\LWVWHUPV
&2175$&725PD\VXEPLWDQDSSOLFDWLRQVHHNLQJLVVXDQFHRIDQHZH[HPSWLRQQR
VRRQHUWKDQ GD\VIROORZLQJWKHH[SLUDWLRQRIWKHSULRUH[HPSWLRQ,IDQ\H[HPSWLRQ
JUDQWHGWR&2175$&725LVUHYRNHGSXUVXDQWWRWKHSURYLVLRQVRI3DUDJUDSK&
WKDW&2175$&725ZLOOQRWEHHOLJLEOHWRDSSO\IRULVVXDQFHRIDQHZH[HPSWLRQXQWLO
PRQWKVKDYHSDVVHGIROORZLQJWKHUHYRFDWLRQRIWKHSULRUH[HPSWLRQ
$VPRUHWKRURXJKO\SURYLGHGLQ3DUDJUDSK& LQWKHHYHQW&2175$&725DSSOLHV
IRUDQGLVJUDQWHGDQH[HPSWLRQWKHVXEVHTXHQWIDLOXUHE\&2175$&725WRFRPSO\
ZLWKWKHSD\PHQWDQGUHSRUWLQJUHTXLUHPHQWVOLVWHGLQ6XESDUDJUDSKRI3DUDJUDSK
$PD\UHVXOWLQUHYRFDWLRQRIWKHH[HPSWLRQ7KHVXEPLWWDOE\&2175$&725
RIUHFRUGVRUUHSRUWVWKDWDUHXQWLPHO\RUDUHGHWHUPLQHGE\WKH&2817<
5HSUHVHQWDWLYHWREHLQVXIILFLHQWRULQDFFXUDWHVKDOOUHVXOWLQ&2817< JLYLQJQRWLFH
WR&2175$&725WKDW L DQ\VXFKGHILFLHQFLHVRUHUURUVPXVWEHFXUHGZLWKLQ
GD\VRIWKHPDLOLQJRIVXFKQRWLFHDQG LL WKDWDVHFRQG LQVWDQFHRIVXEPLWWDOE\
&2175$&725RIXQWLPHO\LQVXIILFLHQWRULQDFFXUDWHUHSRUWV GXULQJDQ\SHULRGRI
WLPHHQFRPSDVVLQJWKHIRXUPRVWUHFHQWVXEPLWWDOVE\&2175$&725RUZLWKLQD
SHULRGRIILIWHHQ FRQVHFXWLYHPRQWKVVKDOOFRQVWLWXWHJURXQGVIRUUHYRFDWLRQRI
WKDW(6$3+DXOHU¶VH[HPSWLRQ)URPDQGDIWHUWKHGDWHRIGHOLYHU\WR
&2175$&725RIQRWLFH RIVXFKUHYRFDWLRQRIWKHH[HPSWLRQ&2175$&725VKDOO
([KLELW$
3DJHRI
EHUHTXLUHGWRGHOLYHUDOO6ROLG:DVWHWR$$'6LQDFFRUGDQFHZLWKWKHSURYLVLRQVRI
6HFWLRQ$
75$163257$7,21352&(66,1*0$5.(7,1* 2)5(&<&/$%/(6
&2175$&725ZLOOEHUHVSRQVLEOHIRUDOO5HF\FODEOH0DWHULDOVSURFHVVLQJDQG
PDUNHWLQJVHUYLFHVDVVRFLDWHGZLWKWKH&ROOHFWLRQRI5HF\FODEOH0DWHULDOVXQGHUWKLV
$JUHHPHQW,QPHHWLQJWKHREOLJDWLRQWRSURYLGHSURFHVVLQJIDFLOLW\FDSDFLW\
&2175$&725PD\SXUFKDVHOHDVHVXEFRQWUDFWRUPDNHRWKHUDUUDQJHPHQWVZLWKD
QHZRUH[LVWLQJIDFLOLW\IRUWKHSURFHVVLQJDQGPDUNHWLQJRIWKH5HF\FODEOH0DWHULDOV
FROOHFWHGLQWKH&2817<2ZQHUVKLSRUOHDVLQJDUUDQJHPHQWVDQGFRVWVZLOOEHWKH
UHVSRQVLELOLW\RIWKH&2175$&725&2175$&725ZLOOHQVXUHWKDWDQ\DSSOLFDEOH
SXUFKDVHRUOHDVHDJUHHPHQWVZLWKSURSHUW\RZQHUVDQGORFDOODQGXVHDXWKRULWLHVDUH
LPSOHPHQWHG&2175$&725ZLOOKDYHWKHUHVSRQVLELOLW\WRHQVXUHWKHWHFKQLFDODQG
HQYLURQPHQWDOVXLWDELOLW\RIDQ\SURFHVVLQJVLWHIRULWVLQWHQGHGSXUSRVH
&2175$&725ZLOOEHFRPSHQVDWHGIRU5HF\FODEOH0DWHULDOVSURFHVVLQJDQG
PDUNHWLQJVROHO\WKURXJKWKH5DWHV
&2175$&725ZLOOEHUHVSRQVLEOHIRUDUUDQJLQJIRUWKHWUDQVSRUWDWLRQRIWKH5HF\FODEOH
0DWHULDOVWRWKHSURFHVVLQJIDFLOLW\,I&2175$&725FKRRVHVWRFRQVROLGDWHWKH
5HF\FODEOH0DWHULDOVWRUHGXFHWUDQVSRUWDWLRQFRVWVWRDGLVWDQWSURFHVVLQJVLWH
&2175$&725ZLOOEHIXOO\UHVSRQVLEOHIRUVHFXULQJDQGRSHUDWLQJDVWDJLQJDUHDIRU
WHPSRUDU\VWRUDJHFRQVROLGDWLRQDQGORDGLQJRIPDWHULDOVLQWRWUDQVIHUYHKLFOHVIRU
ORQJKDXOLQJWRWKHSURFHVVLQJIDFLOLW\
&2175$&725ZLOOEHUHTXLUHGWRUHFHLYHDQGSURFHVV5HF\FODEOH0DWHULDOVSUHSDUH
5HF\FODEOH0DWHULDOVIRUPDUNHWVDQGWRPDUNHWWKHUHFRYHUHGPDWHULDOV7KHPDWHULDO
W\SHVWREHDFFRPPRGDWHGE\WKHIDFLOLW\DUHRXWOLQHGLQWKLV([KLELW $&2175$&725
([KLELW$
3DJH RI
ZLOOPDUNHWDQGVHOO5HF\FODEOHVFROOHFWHGSXUVXDQWWRWKH$JUHHPHQW$OOUHYHQXHV
HDUQHGIURPWKHVDOHRIWKH5HF\FODEOHVZLOOEHUHWDLQHGE\&2175$&725
'LVSRVDORI5HVLGXHUHPDLQLQJDIWHUWKHVHJUHJDWLRQRIWKH5HF\FODEOH0DWHULDOVZLOOEH
WKH&2175$&725¶VUHVSRQVLELOLW\&2175$&725ZLOOWUDQVSRUWWKH5HVLGXHWRWKH
'LVSRVDORU7UDQVIHU)DFLOLW\RUWRDQRWKHUIXOO\SHUPLWWHGIDFLOLW\RILWVFKRRVLQJ7KH
FRVWVRI5HVLGXHWUDQVSRUWDWLRQDQG'LVSRVDOZLOOEHERUQHE\&2175$&725DQGVKDOO
EHLQFOXGHGLQWKH5DWHV &2175$&725LVUHVSRQVLEOHWRUHSRUWKRZPXFK5HVLGXDO
ZDVE\ZHLJKWRIWKHPDWHULDOVSURFHVVHGIRU5HF\FOLQJ
75$163257352&(66,1* *5((1:$67($1'25*$1,&0$7(5,$/6
$ *UHHQ:DVWH&2175$&725VKDOOSURYLGHGLUHFWO\RULQGLUHFWO\IRUWKH
WUDQVSRUWDWLRQSURFHVVLQJDQGPDUNHWLQJRIDOO*UHHQ:DVWHIRUXVHWKURXJKEHQHILFLDO
UHXVHVXFKDVPXOFKLQJFRPSRVWLQJRUSURFHVVLQJIRUDOWHUQDWLYHGDLO\FRYHUDQGRUIRU
XVHDVELRPDVVIXHO&2175$&725LVUHVSRQVLEOHIRUSD\PHQWRIDOOFRVWVIRUWKHVH
VHUYLFHVIURP5DWH5HYHQXHVFROOHFWHGE\&2175$&725SXUVXDQWWRWKLV$JUHHPHQW
% 2UJDQLF0DWHULDOV&2175$&725VKDOOSURYLGHGLUHFWO\RULQGLUHFWO\IRU WKH
WUDQVSRUWDWLRQSURFHVVLQJDQGPDUNHWLQJRIDOO2UJDQLF0DWHULDOVIRUXVHWKURXJK
EHQHILFLDOUHXVHVXFKDVFRPSRVWLQJRUDQDHURELFGLJHVWLRQ&2175$&725LV
UHVSRQVLEOHIRUSD\PHQWRIDOOFRVWVIRUWKHVHVHUYLFHVIURP5DWH5HYHQXHVFROOHFWHGE\
&2175$&725SXUVXDQWWRWKLV$JUHHPHQW7KHUDWHIRU&2175$&725WRSURYLGH
2UJDQLF0DWHULDOV&ROOHFWLRQDQG3URFHVVLQJ6HUYLFHVVKDOOEHRIWKHFRPSDUDEOH
VL]HDQGIUHTXHQF\RI6ROLG:DVWH&ROOHFWLRQUDWHVSOXVWKHDFWXDOFRVWSHUWRQIRU
2UJDQLF0DWHULDOV3URFHVVLQJ
&20081,7<&/($1836(59,&(6
&2175$&725ZLOOSURYLGH&RPPXQLW\&OHDQ8S6HUYLFHVIRUWKHFROOHFWLRQRIQRQ
([FOXGHG:DVWHLWHPVIRUDOOUHVLGHQWLDO&DUW&XVWRPHUV LQFOXGLQJ%XON\,WHPVVXFKDV
([KLELW$
3DJHRI
IXUQLWXUHDSSOLDQFHVZKLWHJRRGVHZDVWHPDWWUHVVHVSOXPELQJIL[WXUHVFRQVWUXFWLRQ
DQGGHPROLWLRQGHEULVDQGUHODWHGLWHPV(DFK&DUW&XVWRPHUZLOOUHFHLYHRQH
SLFNXSSHU\HDUZLWKLQHDFK6HUYLFH$UHD7KHVHGURSRIIHYHQWVVKDOORFFXURQFHD
\HDUGXULQJHDFKFDOHQGDU\HDU7KHPD[LPXPDPRXQWRIPDWHULDOVWKDWHDFK&DUW
&XVWRPHUPD\SODFHIRU&ROOHFWLRQIRUHDFKHYHQWLVWZR FXELF\DUGVDQGRQH
)UHRQFRQWDLQLQJDSSOLDQFH&2175$&725ZLOOSURPRWHDQGPDQDJH LWV RZQ
FOHDQXSVZKLFKZLOOEHIXQGHGE\WKH&2817<¶V$PHULFDQ$YHQXH7UXVW)XQGFOHDQXS
FRXSRQSURJUDPDVORQJDVIXQGVDUHDYDLODEOH3URYLGHGKRZHYHUWKDWWKHPDWHULDOV
FROOHFWHGIURPHDFK&DUW&XVWRPHUPD\H[FHHGWKHPD[LPXPDPRXQWVSHFLILHGLQWKH
SUHFHGLQJVHQWHQFHIRUWKHFKDUJHVSHFLILHGLQ([KLELW'WRWKLV$JUHHPHQW
&2175$&725ZLOODOVRDFFHSWPDWHULDOIURPQRQ&XVWRPHUVZKRSUHVHQW&2817<
FOHDQXSFRXSRQV&2175$&725ZLOOIROORZ&2817< JXLGHOLQHVIRUWKHXVHRIVXFK
FRXSRQVDQGIRUUHSRUWVWKDW&2175$&725DJUHHVWRSURYLGHWRWKH&2817<
&2175$&725ZLOOFKDUJH%XON\,WHP6SHFLDO6HUYLFH5DWHVDIWHU&2817<¶V&RXSRQ
3URJUDPIXQGLQJLVH[SHQGHG&2175$&725VKDOODOVRSURYLGHXSWRWRQVSHU\HDU
RIUROORIIVHUYLFHVZLWKLQWKHLUWHUULWRU\IRU IUHHVHUYLFHIRUKRPHOHVVHQFDPSPHQWVDQG
OLWWHUDEDWHPHQWXSRQUHTXHVWE\WKH&2817<&2175$&725ZLOOUHSRUWWRWKH
&2817< RQWKHWRQVDQGPDWHULDOVW\SHVFROOHFWHGDVSDUWRIWKHLU&RPPXQLW\&OHDQXS
UHSRUWV
&2175$&725ZLOOWKHQGHOLYHUWKHFROOHFWHG%XON\,WHPVWRDSURFHVVLQJIDFLOLW\IRU
UHFRYHU\RUWRWKH'LVSRVDORU7UDQVIHU)DFLOLW\GHSHQGLQJRQWKHW\SHRIPDWHULDOV
FROOHFWHG&2175$&725ZLOOXVH%HVW(IIRUWVWRHQVXUHWKDWDOO5HF\FODEOH0DWHULDOV
DUHGLYHUWHGIURP'LVSRVDOLQFOXGLQJUHXVDEOHIXUQLWXUHGRRUVZLQGRZVDQGIL[WXUHV
PDWWUHVVHVFDUSHWDQGIRDPFDUSHWSDGVDSSOLDQFHVZKLWHJRRGVDQGEURZQJRRGV
WHOHSKRQHVVPDOODSSOLDQFHVDQG*UHHQ:DVWHDQG6LQJOH6WUHDP5HF\FODEOH
([KLELW$
3DJHRI
0DWHULDOV&2175$&725ZLOOXVH%HVW(IIRUWVWRGLYHUWILIW\SHUFHQW RIDOO
PDWHULDOVFROOHFWHGWKURXJKWKH&RPPXQLW\&OHDQ8S6HUYLFHV
&+5,670$675((&2//(&7,21
,QWKH=RQHDQG=RQHD6HUYLFH5DWH$UHDV&2175$&725ZLOOZLWKRXWDGGLWLRQDO
FRPSHQVDWLRQFROOHFWDOO&KULVWPDVWUHHVGLVFDUGHGE\DOO &XVWRPHUVGXULQJWKHILUVW
WKUHH UHJXODUO\VFKHGXOHGFROOHFWLRQGD\VDIWHU&KULVWPDV'D\IRUHDFKFROOHFWLRQ
URXWH&2175$&725VKDOOGHOLYHUDOO&KULVWPDVWUHHVFROOHFWHGGXULQJWKLVSHULRGWRD
*UHHQ:DVWH3URFHVVLQJ)DFLOLW\ &XVWRPHUVVKDOOEHLQVWUXFWHGWRFXWWKH&KULVWPDV
WUHHVLQWRWZR IRRWVHFWLRQVDQGSODFHWKH&KULVWPDVWUHHVZLWKRXWIORFNLQJ
GHFRUDWLRQRUPHWDORUSODVWLFVWDQGVLQWKH*UHHQ:DVWH&DUW
21&$//%8/.<,7(063,&.83
7KH&2817<KDVHVWDEOLVKHGDFRXSRQSURJUDPIURPWKH$PHULFDQ$YHQXH7UXVW
)XQGDFFRXQW WRSURYLGHIRURQFDOO%XON\,WHPVSLFNXS IRUKRPHERXQGUHVLGHQWV
2QFHWKRVHIXQGVDUHH[KDXVWHG &2175$&725VKDOOSURYLGHRQFDOOSLFNXSRI%XON\
,WHPVWRDQ\&XVWRPHUUHTXHVWLQJWKHVHUYLFHDWWKH6SHFLDO6HUYLFH)HHVSHFLILHGLQ
([KLELW '&2175$&725VKDOOXVH%HVW(IIRUWVWRHQVXUHWKDWDOO5HF\FODEOH0DWHULDOV
DUHGLYHUWHGIURP'LVSRVDODQG&2175$&725VKDOOXVH%HVW(IIRUWVWRUHF\FOHRU
GLYHUWIURP'LVSRVDOILIW\SHUFHQW RIDOOPDWHULDOVFROOHFWHGWKURXJKWKH2Q&DOO
%XON\,WHPV3LFN8S 3URJUDP
)5((6,'(<$5'6(59,&()25',6$%/('$1'(/'(5/<&$57
&86720(56
4XDOLILHGLQGLYLGXDOVUHTXLULQJVLGH\DUGVHUYLFHGXHWRSK\VLFDOGLVDELOLW\RUDJHZLOOEH
SURYLGHGWKDWVHUYLFHE\&2175$&725DWQRDGGLWLRQDOIHH&2175$&725VKDOO
SURYLGH WKLVIUHHVLGH\DUG6HUYLFHWRGLVDEOHGRUHOGHUO\&XVWRPHUVWKDWDUHSK\VLFDOO\
XQDEOHWRPRYH&DUWVDVUHDVRQDEO\GHWHUPLQHGE\&2175$&725LQJRRGIDLWK
([KLELW$
3DJHRI
3URYLGHGKRZHYHUWKDW&2817<UHVHUYHVWKHULJKWWRGLUHFWWKHSURYLVLRQRIVXFKIUHH
VLGH\DUG6HUYLFHWRD&XVWRPHULIWKH&2817<5HSUHVHQWDWLYHGHWHUPLQHVWKDW
&2175$&725¶VGHQLDORIVXFKDUHTXHVWE\WKDW&XVWRPHUZDVDUELWUDU\RU
XQUHDVRQDEOH 7KHVLGH\DUGVHUYLFHZLOOLQFOXGHFROOHFWLRQRI6ROLG:DVWH5HF\FODEOHV
DQG*UHHQ:DVWH
38%/,&('8&$7,21
&2175$&725LVUHTXLUHGWRSURYLGH&XVWRPHULQIRUPDWLRQDQGSXEOLFHGXFDWLRQ
WKURXJKRXWWKH7HUPRIWKH$JUHHPHQW7KHSXEOLFHGXFDWLRQVHUYLFHVVKDOOLQFOXGHEXW
QRWEHOLPLWHGWRSURYLGLQJLQIRUPDWLRQUHJDUGLQJ
x 4XDUWHUO\QHZVOHWWHU
x 3URJUDPLPSOHPHQWDWLRQLQIRUPDWLRQ
x &KDQJHLQVHUYLFH
x ,QFRUUHFWVHWRXWQRWLFHV
x %XON\,WHPVFROOHFWLRQ
x &KULVWPDVWUHH&ROOHFWLRQ6HUYLFHV
([KLELW$
3DJHRI
(;+,%,7 %
3(5)250$1&(67$1'$5'6
&2175$&7256WDQGDUGV
6HUYLFHVDUHWREHFRPSOHWHGLQDWKRURXJKDQGSURIHVVLRQDOPDQQHUWKDW
FRQVWLWXWHVOLWWHUIUHHUHOLDEOHFRXUWHRXVDQGKLJKTXDOLW\VHUYLFH
&2175$&725VKDOODWDOOWLPHVSHUIRUPLWVGXWLHVXVLQJEHVWLQGXVWU\
SUDFWLFHIRUFRPSDUDEOHRSHUDWLRQV
3HUVRQQHOVKDOOFRQGXFWWKHPVHOYHVLQDFRXUWHRXVZRUNPDQOLNHPDQQHU
3HUVRQQHOVKDOOGUHVVLQFOHDQXQLIRUPVKLUWVZLWKVXLWDEOHLGHQWLILFDWLRQ
&RORUDQGDSSHDUDQFHRIFROOHFWLRQYHKLFOHVFRQWDLQHUVHPSOR\HH
XQLIRUPVDQGSXEOLFHGXFDWLRQPDWHULDOVSURYLGHGE\&2175$&725ZLOO
EHGHVLJQHGWRSURYLGHDVWDQGDUGUHSUHVHQWDWLRQRIWKHFRPSDQ\,I
VXEFRQWUDFWRUVDUHLQFOXGHGDGLVWLQFWEXWXQLIRUPDSSHDUDQFHRIWKH
VXEFRQWUDFWRU¶VHTXLSPHQWYHKLFOHVDQGSHUVRQQHOLVUHTXLUHG
&ROOHFWLRQ&RQWDLQHUV
&2175$&725VKDOOSURYLGHLQGXVWU\VWDQGDUG&RQWDLQHUVIRUVWRUDJHRI
PDWHULDOVZKLFKVKDOOEHGHVLJQDWHGDQGFRQVWUXFWHGWREHZDWHUWLJKWDQG
SUHYHQWWKHOHDNDJHRIOLTXLGV$OO&RQWDLQHUVZLWKDFDSDFLW\RIRQH
FXELF\DUGRUPRUHVKDOOPHHWDOODSSOLFDEOH)HGHUDOUHJXODWLRQVIRU6ROLG
:DVWHELQVDIHW\
&RQWDLQHUVVKDOOEHFOHDUO\ODEHOHGWRLQGLFDWHWKHLUGHVLJQDWLRQIRU
FROOHFWLRQRI6ROLG:DVWH5HF\FODEOHV*UHHQ:DVWHRU2UJDQLF0DWHULDOV
DQGVKDOOOLVWWKHW\SHVRIPDWHULDOVWREHVWRUHGLQWKH&RQWDLQHUIRU
&ROOHFWLRQ/DEHOVRQDOO%LQVVKDOOEHVXEMHFWWRILQDODSSURYDOE\WKH
([KLELW%
3DJHRI
&2817< VRWKHODEHOVDUHFRQVLVWHQWWKURXJKRXWDOO=RQHVZLWKLQWKH
&RXQW\
&2175$&725LVWRSURYLGHDOO&RQWDLQHUVWR&XVWRPHUVDWQRFKDUJH
5HSODFHPHQWFRQWDLQHUVWKDWDUHQHZRUUHIXUELVKHGOLNHQHZ VKDOOEH
SURYLGHGIUHHRIFKDUJHWR&XVWRPHUVXSRQUHTXHVWRIFXVWRPHU LISUHYLRXV
FRQWDLQHULVUHQGHUHGXQVHUYLFHDEOHE\UHDVRQRIQRUPDOZHDUDQGWHDURU
RWKHUWKDQ WKH&XVWRPHU¶VDFWLRQ
$OO&DUWVVKDOOEHZKHHOHGFDUWVZLWKDWWDFKHGOLGVDQGDKDQGOHWRDOORZ
IRUHDV\PRYHPHQW
$OO&DUWOLGVVKDOOEHWKHIROORZLQJVWDQGDUGFRORUV %OXHIRU5HF\FODEOHV
*UHHQIRU*UHHQ:DVWHDQG2UJDQLF0DWHULDOVDQG*UD\%URZQ RU %ODFN
IRU6ROLG:DVWH
&2175$&725PD\VHOHFWWKH&RQWDLQHUPDQXIDFWXUHU
&2175$&725WRPDLQWDLQUHSDLUFOHDQSDLQWDQGUHSODFH&RQWDLQHUV
DVQHHGHGWRPDLQWDLQDFOHDQDQGIXQFWLRQDOFRQGLWLRQ$OOJUDIILWLVKDOO
EHUHPRYHGSURPSWO\E\&2175$&725
&2175$&725VKDOODWQRFKDUJHIRUWKHILUVWVXFKUHSODFHPHQWGXULQJ
DQ\WZHOYH PRQWKSHULRGUHSODFHDQ\&DUWZKLFKEHFRPHV
DFFLGHQWDOO\GDPDJHGDQGXQXVDEOHE\&XVWRPHU,QWKHHYHQWWKDW
DQRWKHU&DUWPXVWEHUHSODFHGZLWKLQWKDWVDPHWZHOYH PRQWKSHULRG
GXHWR&XVWRPHU¶VDFWLRQ&2175$&725PD\FKDUJHWKH&XVWRPHUWKH
6SHFLDO6HUYLFH)HHVSHFLILHGLQ([KLELW'WRWKLV$JUHHPHQW
([KLELW%
3DJHRI
9HKLFOHV
*HQHUDO
&2175$&725VKDOOSURYLGHDIOHHWRILQGXVWU\VWDQGDUG&ROOHFWLRQYHKLFOHVDQGDV
QHHGHGWUDQVIHUYHKLFOHVVXIILFLHQWLQQXPEHUDQGFDSDFLW\WRHIILFLHQWO\SHUIRUPWKH
ZRUNUHTXLUHGE\WKH$JUHHPHQWLQVWULFWDFFRUGDQFHZLWKLWVWHUPV&2175$&725
DJUHHVWRPDLQWDLQHDFKSLHFHRIHTXLSPHQWXVHGE\LWLQWKHSHUIRUPDQFHRIWKLV
$JUHHPHQWLQJRRGRUGHUDQGUHSDLU&2175$&725VKDOOKDYHDYDLODEOHRQVHUYLFH
GD\VVXIILFLHQWEDFNXSYHKLFOHVDQGTXDOLILHGRSHUDWRUVWRUHVSRQGWRFRPSODLQWVDQG
HPHUJHQFLHVLIQHHGHG
9HKLFOH,GHQWLILFDWLRQ
&2175$&725¶VQDPHSKRQHQXPEHUDQGYHKLFOHLGHQWLILFDWLRQQXPEHUPXVWEH
YLVLEO\GLVSOD\HGRQLWVYHKLFOHVLQOHWWHUVDQGILJXUHVQROHVVWKDQWKUHH LQFKHVKLJK
&OHDQLQJDQG0DLQWHQDQFH
*HQHUDO&2175$&725VKDOOPDLQWDLQDOORILWVSURSHUWLHVIDFLOLWLHVDQG
HTXLSPHQWXVHGLQSURYLGLQJVHUYLFHXQGHUWKLV$JUHHPHQWLQDVDIH
FOHDQDQGRSHUDEOHFRQGLWLRQDWDOOWLPHVDQGVKDOONHHSLWVSURSHUWLHV
IDFLOLWLHVDQGHTXLSPHQWZHOODQGXQLIRUPO\SDLQWHGWRWKHUHDVRQDEOH
VDWLVIDFWLRQRI&2817<5HSUHVHQWDWLYH9HKLFOHVVKDOOEHPDLQWDLQHGLQ
VXFKDPDQQHUWKDWQROHDNDJHRIIOXLGVIURPWKHFROOHFWHGPDWHULDOV
RFFXUV
&OHDQLQJ9HKLFOHVXVHGLQWKHFROOHFWLRQVKDOOEHZDVKHGVRDVWR
SUHVHQWDFOHDQDSSHDUDQFHDQGPLQLPL]HRGRUV7KHYHKLFOHVVKDOOEH
SDLQWHGLQDXQLIRUPPDQQHUDOWKRXJK6ROLG:DVWH5HF\FOLQJ*UHHQ
:DVWHDQG2UJDQLF0DWHULDOYHKLFOHVPD\KDYHGLIIHUHQWSDLQWLQJ
VFKHPHV$OOJUDIILWLVKDOOEHUHPRYHGSURPSWO\&2817<PD\LQVSHFW
([KLELW%
3DJHRI
YHKLFOHVGXULQJQRUPDOEXVLQHVVKRXUVWRGHWHUPLQHFRPSOLDQFHZLWK
VDQLWDWLRQUHTXLUHPHQWV&2175$&725VKDOOPDNHYHKLFOHVDYDLODEOHWR
WKH&2817<¶65HSUHVHQWDWLYHDQGWKH&2817<'HSDUWPHQWRI
&RPPXQLW\+HDOWKIRULQVSHFWLRQSXUVXDQWWRLWVUHDVRQDEOHUHTXHVWLILW
UHTXHVWV
0DLQWHQDQFH&2175$&725VKDOOLQVSHFWHDFKYHKLFOHWRHQVXUHWKDW
DOOHTXLSPHQWLVRSHUDWLQJSURSHUO\9HKLFOHVZKLFKDUHQRWRSHUDWLQJ
SURSHUO\VKDOOEHWDNHQRXWRIVHUYLFHXQWLOWKH\DUHUHSDLUHGDQGGR
RSHUDWHSURSHUO\ DQG&2175$&725VKDOOSHUIRUPDOOVFKHGXOHG
PDLQWHQDQFHIXQFWLRQV
5HSDLUV&2175$&725VKDOOUHSDLURUDUUDQJHIRUWKHUHSDLURIDOORILWV
YHKLFOHVDQGHTXLSPHQWIRUZKLFKUHSDLUVDUHQHHGHGEHFDXVHRI
DFFLGHQWEUHDNGRZQRUDQ\RWKHUFDXVHVRDVWRPDLQWDLQDOOHTXLSPHQWLQ
DVDIHFOHDQDQGRSHUDEOHFRQGLWLRQ
,QYHQWRU\&2175$&725VKDOOIXUQLVKVXIILFLHQWHTXLSPHQWWRSURYLGH
DOOVHUYLFHUHTXLUHGXQGHUWKLV$JUHHPHQWLQFOXGLQJLIQHHGHGEDFNXS
&ROOHFWLRQYHKLFOHV
6WRUDJH&2175$&725VKDOODUUDQJH WRVWRUHDOOYHKLFOHVDQGRWKHU
HTXLSPHQWLQVDIHDQGVHFXUHORFDWLRQ V LQDFFRUGDQFHZLWK&2817<¶V
DSSOLFDEOH]RQLQJUHJXODWLRQV
2SHUDWLRQ
$OOYHKLFOHVPXVWEHUHJLVWHUHGZLWKWKH'HSDUWPHQWRI0RWRU9HKLFOHVRIWKH6WDWHRI
&DOLIRUQLDDQGLQVSHFWHGE\WKH&DOLIRUQLD+LJKZD\3DWURODWWKHIUHTXHQF\UHTXLUHGE\
WKHVWDWH9HKLFOHVVKDOOEHRSHUDWHGLQFRPSOLDQFHZLWKWKH&DOLIRUQLD9HKLFOH&RGH
DQGDOODSSOLFDEOHVDIHW\DQGORFDORUGLQDQFHV
([KLELW%
3DJHRI
&ROOHFWLRQ6FKHGXOH
,IWKHGD\RIFROOHFWLRQRQDQ\JLYHQ URXWHIDOOVRQ1HZ<HDU¶V'D\
7KDQNVJLYLQJ'D\RU&KULVWPDV'D\&2175$&725VKDOOSURYLGH
FROOHFWLRQVHUYLFHIRUVXFKURXWHRQVXFKGD\RUWKHQH[W:RUN'D\,QWKH
HYHQWWKHKROLGD\VFKHGXOHRIWKH'LVSRVDO7UDQVIHU5HF\FOLQJDQG*UHHQ
:DVWH3URFHVVLQJ)DFLOLWLHVDUHGLIIHUHQWWKDQWKHKROLGD\VVWDWHGKHUHLQ
WKHKROLGD\VFKHGXOHZLOOEHDGMXVWHGE\&2175$&725LQFRQVXOWDWLRQ
ZLWKWKH&2817<WRPDWFKWKRVHRIWKHIDFLOLW\ LHV
&2175$&725VKDOOSURYLGHRQH SLFNXSSHUZHHNIRU&DUW&XVWRPHUV
IURPWKHFXUEVLGHRUIURPGHVLJQDWHGORFDWLRQVLQWKHFDVHRIVLGH\DUG
VHUYLFHIRUGLVDEOHGRUHOGHUO\FXVWRPHUVDQGIRUFXVWRPHUVSD\LQJD
6SHFLDO6HUYLFH)HHIRUVLGH\DUGVHUYLFH
&2175$&725VKDOOSURYLGHSLFNXSVRQWKHVFKHGXOHUHTXHVWHGE\
&XVWRPHU DWOHDVWRQFHZHHNO\ IRU%LQ&XVWRPHUVIURPDORFDWLRQDJUHHG
WRE\WKH&2175$&725DQG&XVWRPHU
&ROOHFWLRQ5RXWHV
&ROOHFWLRQURXWHVVKDOOEHHVWDEOLVKHGDQGPDLQWDLQHGLQVXFKDPDQQHUDV
WRSURYLGHXQLIRUPDQGHIILFLHQW&ROOHFWLRQ6HUYLFHV
&2175$&725VKDOOVXEPLWURXWHSODQVWR&2817<5HSUHVHQWDWLYHIRU
LQIRUPDWLRQDOSXUSRVHVWKLUW\ GD\VEHIRUHWKH2SHUDWLYH'DWHRIWKH
([WHQVLRQDQGRQH \HDUSULRUWRWKHHQGRIWKH([WHQVLRQDQG
ZKHQHYHUWKHUHLVDVLJQLILFDQWURXWLQJFKDQJH7KHURXWHSODQVVKDOO
LGHQWLI\WKHFRXUVHHDFKYHKLFOHIROORZVWKHSURSHUWLHVVHUYHG
DSSUR[LPDWHVWDUWLQJDQGHQGLQJWLPHVIRUHDFKURXWHDQGWKHGD\RIZHHN
WKHURXWHZLOOEHVHUYHG
([KLELW%
3DJHRI
0DWHULDOVFROOHFWHGVKDOOQRWEHPL[HGLQ&2175$&725¶VFROOHFWLRQ
HTXLSPHQWZLWKDQ\ PDWHULDOVFROOHFWHGIURPDQRWKHUJRYHUQPHQWDO
MXULVGLFWLRQLQFOXGLQJRWKHUFLWLHVRUFRXQWLHVZLWKRXWSULRUDSSURYDORI
&2817<5HSUHVHQWDWLYHZKLFKDSSURYDOVKDOOQRWXQUHDVRQDEO\EH
ZLWKKHOG
&ROOHFWLRQ5HTXLUHPHQWV
&DUHRI3ULYDWH3URSHUW\
5HDVRQDEOHFDUHVKDOOEHXVHGE\&2175$&725¶VHPSOR\HHVLQKDQGOLQJDOO
&ROOHFWLRQ&RQWDLQHUVDQGHQFORVXUHVDQGDOOGDPDJHFDXVHGWKHUHWRE\WKHQHJOLJHQFH
RI&2175$&725¶VHPSOR\HHVVKDOOEHSURPSWO\DGMXVWHGZLWKWKHRZQHUWKHUHRI$OO
&ROOHFWLRQ&RQWDLQHUVDIWHUHPSW\LQJWKHUHRIE\&2175$&725¶VHPSOR\HHVVKDOOEH
UHWXUQHGWRZLWKLQILYH IHHWRIWKHORFDWLRQIURPZKLFKWKHVDPHZHUHSLFNHGXSE\
&2175$&725¶VHPSOR\HHVXSULJKWZLWKOLGVSURSHUO\VHFXUHGDQG&2175$&725¶V
HPSOR\HHVVKDOOXVHDOOUHDVRQDEOHPHDQVWRHQVXUHVDPHDUHQRWGHSRVLWHGLQD
PDQQHUWKDWEORFNVDQ\GULYHZD\VLGHZDONRUVWUHHW&2175$&725VKDOOHQVXUHWKDW
LWVHPSOR\HHVFORVHDOOJDWHVRSHQHGE\WKHPLQPDNLQJFROOHFWLRQVXQOHVVRWKHUZLVH
GLUHFWHGE\WKH&XVWRPHUDQGDYRLGFURVVLQJODQGVFDSHGDUHDVDQGFOLPELQJRU
MXPSLQJRYHUKHGJHVDQGIHQFHV&2817<VKDOOUHIHUFRPSODLQWVDERXWGDPDJHWR
SULYDWHSURSHUW\WR&2175$&725&2175$&725VKDOOUHSDLUDOOGDPDJHWRSULYDWH
SURSHUW\FDXVHGE\LWVHPSOR\HHV
1RLVH
$OOFROOHFWLRQRSHUDWLRQV VKDOOEHFRQGXFWHGDVTXLHWO\DVUHDVRQDEO\SRVVLEOHDQGVKDOO
FRQIRUPWRDSSOLFDEOH)HGHUDODQG6WDWHQRLVHOHYHOUHJXODWLRQVDQGWKH&2817<1RLVH
2UGLQDQFH&2817<PD\FRQGXFWUDQGRPFKHFNVRIQRLVHHPLVVLRQOHYHOVWRHQVXUH
([KLELW%
3DJHRI
VXFKFRPSOLDQFH&2175$&725VKDOOSURPSWO\UHVROYHDQ\FRPSODLQWVRIQRLVHWRWKH
VDWLVIDFWLRQRIWKH&2817<5HSUHVHQWDWLYH
5HFRUGRI1RQFROOHFWLRQ
,IDQ\PDWHULDOV'HOLYHUHGIRU&ROOHFWLRQDUHQRWFROOHFWHGE\&2175$&725IRU
VXIILFLHQWUHDVRQ&2175$&725VKDOOSURYLGHDQRWLFHRIOHDVWWZR LQFKHVE\VL[
LQFKHVLQVL]HDW&2175$&725¶VFRVW7KHQRWLFHVKDOOSURYLGH&2175$&725¶V
SKRQHQXPEHUDQGUHDVRQ V IRU&2175$&725¶VUHIXVDOWRFROOHFWWKHPDWHULDOV
SODFHGRQWKH&RQWDLQHUJLYLQJUHIHUHQFHWRWKH&2817<2UGLQDQFH&RGHRU
&2175$&725¶V$JUHHPHQWZKLFKKDVEHHQYLRODWHGDQGZKLFKJLYHVJURXQGVIRU
&2175$&725¶VUHIXVDO&2175$&725VKDOOPDLQWDLQDW&2175$&725¶VSODFHRI
EXVLQHVVD&XVWRPHUFRPSODLQWORJOLVWLQJDOOFRPSODLQWVDQGWDJJLQJV6DLGORJERRN
VKDOOFRQWDLQWKHQDPHVDQGGDWHDQGPDQQHURIGLVSRVLWLRQRIHDFKFDVH6XFKORJ
VKDOOEHNHSWVRWKDWLWPD\FRQYHQLHQWO\EHLQVSHFWHGE\&2817<UHSUHVHQWDWLYHXSRQ
UHTXHVW
/RDG&KHFNLQJ
&2175$&725LVUHVSRQVLEOHIRUPDNLQJUHDVRQDEOHHIIRUWVWRYLVXDOO\LQVSHFW
PDWHULDOVSULRUWRFROOHFWLRQIRU+D]DUGRXV:DVWHRURWKHUXQDFFHSWDEOHPDWHULDOV
&2175$&725LVQRWUHVSRQVLEOHIRUFROOHFWLRQRI+D]DUGRXV:DVWHRURWKHU([FOXGHG
:DVWH
&2175$&725LVUHVSRQVLEOHIRUFRQWUROOLQJFRQWDPLQDWLRQOHYHOVRI5HF\FODEOH
0DWHULDOVDQG*UHHQ:DVWHWKURXJKSXEOLFHGXFDWLRQHIIRUWVDQGWDJJLQJRILPSURSHU
VHWRXWV
&RQWDPLQDWHGDQG2YHUILOOHG&RQWDLQHUV
&2175$&725 DQG &2817< DQWLFLSDWH WKDW &XVWRPHUV ZLOO SDUWLFLSDWH LQ
&2175$&725¶V SURJUDPV LQ D PDQQHU VXFK WKDW PLQLPL]HV WKH WRWDO OHYHO RI
([KLELW%
3DJHRI
FRQWDPLQDWLRQLQ&RQWDLQHUV$VXVHGKHUHLQ³FRQWDPLQDWLRQ´UHIHUVWRPDWHULDOVSODFHG
LQD&RQWDLQHURWKHUWKDQWKRVHZKLFKWKH3DUWLHVDJUHHDUHDSSURSULDWHIRU&ROOHFWLRQ
WKHUHLQDVPRUHIXOO\VHWIRUWKLQWKLV$JUHHPHQW&2175$&725DQG&2817<DOVR
DQWLFLSDWHWKDW&XVWRPHUVZLOOQRWRYHUILOO&RQWDLQHUVEH\RQGFDSDFLW\RUVSLOOFRQWHQWV
QH[W WR WKH &RQWDLQHUV &2817< DQG &2175$&725 DJUHH WR XWLOL]HWKH IROORZLQJ
SURFHGXUHVWRDVVLVWLQPLQLPL]LQJFRQWDPLQDWLRQRURYHUILOOLQJ
,I&2175$&725GRFXPHQWVWKDWDSDUWLFXODU&XVWRPHUKDVD&RQWDLQHUZLWKH[FHVVLYH
FRQWDPLQDWLRQRUDQRYHUILOOHG&RQWDLQHU&2175$&725VKDOOVHUYLFHWKH&RQWDLQHU
PDNLQJZKDWHYHUDFFRPPRGDWLRQVDUHQHFHVVDU\RUFOHDQLQJXSWKHDUHDDURXQGWKH
RYHUILOOHG&RQWDLQHU:KHUHIHDVLEOH&2175$&725ZLOOREWDLQSKRWRJUDSKLFHYLGHQFH
RIWKHFRQWDPLQDWLRQRURYHUILOOLQJ&2175$&725ZLOOWDJWKH&RQWDLQHUZLWKDQRWLFH
WKDWLQFOXGHV
x 7KHIDFWWKH&RQWDLQHUUHTXLUHGVSHFLDOVHUYLFHVGXHWRWKHSUHVHQFHRI
LQDSSURSULDWHPDWHULDOLQWKH&RQWDLQHURUWKDWWKH&RQWDLQHUZDVRYHUILOOHG
x ,QWKHFDVHRIDFRQWDPLQDWHG&RQWDLQHUDGHVFULSWLRQRIWKH0DWHULDOVWKDWDUH
DSSURSULDWHIRU&ROOHFWLRQLQWKH&RQWDLQHU
x $Q H[SODQDWLRQWKDWDVXEVHTXHQWLQFLGHQWRIH[FHVVLYHFRQWDPLQDWLRQRU
RYHUILOOLQJPD\UHVXOWLQWKHLPSRVLWLRQRIDFRQWDPLQDWLRQIHHRURYHUILOOLQJIHH
DQGZKHUHZDUUDQWHGUHTXLULQJDGGLWLRQDORUODUJHUVL]HG6ROLG:DVWH
&RQWDLQHUVRUDGGLWLRQDO&ROOHFWLRQVRIH[LVWLQJ6ROLG:DVWH&RQWDLQHUVDWDQ
DGGLWLRQDOFRVWWRWKH&XVWRPHU DQG
x $SKRQHQXPEHUWRFRQWDFW&2175$&725WRREWDLQDGGLWLRQDOLQIRUPDWLRQ
DQGRUUHFHLYHUHVSRQVHVWRTXHVWLRQVWKH&XVWRPHUPD\KDYH
,QWKHHYHQWWKH&XVWRPHULQTXHVWLRQFRQWLQXHVWRSODFH&RQWDLQHUVZLWKH[FHVVLYH
FRQWDPLQDWLRQRXWIRU&ROOHFWLRQRUFRQWLQXHVWRRYHUILOO&RQWDLQHUV&2175$&725
([KLELW%
3DJHRI
PD\FROOHFWWKH&RQWDLQHUFOHDQWKHVXUURXQGLQJDUHDDQGFKDUJHWKH&XVWRPHUD
FRQWDPLQDWLRQIHHRURYHUILOOLQJIHHLQDQDPRXQW WKDWGRHVQRWH[FHHGWKHPD[LPXP
UDWHVHWIRUWKLQ([KLELW',QDGGLWLRQZKHUHWKHUHKDYHEHHQWKUHH RUPRUH
LQVWDQFHVRIH[FHVVLYHFRQWDPLQDWLRQRURYHUILOOLQJE\D&XVWRPHULQDQ\WZHOYH
PRQWKSHULRG&2175$&725PD\ ZLWKDSSURYDORI&2817< GHOLYHUDGGLWLRQDORU
ODUJHU6ROLG:DVWH&RQWDLQHUVWRWKH&XVWRPHURUUHTXLUHDGGLWLRQDOZHHNO\&ROOHFWLRQV
DVDSSURSULDWHDQGFKDUJHWKH&XVWRPHUIRUVXFKLQFUHDVHGRUDGGLWLRQDOVHUYLFHVDW
UDWHVWKDWGRQRWH[FHHGWKHPD[LPXPUDWHVVHWIRUWKLQ([KLELW'
/LWWHU$EDWHPHQW
0LQLPL]DWLRQRI6SLOOV
&2175$&725VKDOOXVHGXHFDUHWRSUHYHQWPDWHULDOVSODFHGLQWKH&RQWDLQHUVIURP
EHLQJVSLOOHGRUVFDWWHUHGGXULQJWKH&ROOHFWLRQRUWUDQVSRUWDWLRQSURFHVV,IDQ\PDWHULDO
LVVSLOOHGGXULQJ&ROOHFWLRQ&2175$&725VKDOOSURPSWO\FOHDQXSDOOVSLOOHGPDWHULDOV
(DFK&ROOHFWLRQYHKLFOHVKDOOFDUU\DEURRPDQGDVKRYHODWDOOWLPHVIRUWKLVSXUSRVH
&2175$&725VKDOOQRWWUDQVIHUORDGVIURPRQH YHKLFOHWRDQRWKHURQDQ\SXEOLF
VWUHHWXQOHVVLWLVQHFHVVDU\ WRGRVREHFDXVHRIPHFKDQLFDOIDLOXUHRUDFFLGHQWDO
GDPDJHWRDYHKLFOHRUDSSURYHGLQDGYDQFHE\&2817<5HSUHVHQWDWLYH
&OHDQXS
'XULQJWKH&ROOHFWLRQWUDQVSRUWDWLRQSURFHVV&2175$&725VKDOOFOHDQXSOLWWHULQWKH
LPPHGLDWHYLFLQLW\RIDQ\VWRUDJHDUHD LQFOXGLQJWKHDUHDVZKHUHFROOHFWLRQVELQVDUH
GHOLYHUHGIRUFROOHFWLRQ RIDQ\PDWHULDOVWKDWHVFDSHIURPWKH&ROOHFWLRQYHKLFOHRU
&ROOHFWLRQ&RQWDLQHUVDVDUHVXOWRI&2175$&725¶VVHUYLFH&2175$&725VKDOO
ZRUNZLWK&XVWRPHUWRUHVROYHWKHVSLOODJHSUREOHP,IVSLOODJHE\&XVWRPHUFRQWLQXHV
&2817<ZLOODWWHPSWWRUHFWLI\VXFKVLWXDWLRQVZLWK&XVWRPHULI&2175$&725KDV
DOUHDG\DWWHPSWHGWRGRVRZLWKRXWVXFFHVV
([KLELW%
3DJH RI
&RYHULQJRI/RDGV
$OOPDWHULDOVVKDOOEHFRQWDLQHGRUFRYHUHGGXULQJWUDQVSRUWDWLRQWRWKH'LVSRVDORU
SURFHVVLQJIDFLOLW\DQGVKDOOQRWUHVXOWLQWKHGLVSHUVLRQRIOLWWHUDQGRWKHUPDWHULDOVIURP
WKH&2175$&725¶VYHKLFOHV0DWHULDOVKDOOQRWEHWUDQVSRUWHGWRWKH'LVSRVDORU
SURFHVVLQJIDFLOLW\LQYHKLFOHKRSSHUV
2LORU2WKHU9HKLFOH)OXLG6SLOOV
&2175$&725LVUHVSRQVLEOHIRUFOHDQLQJXSDOORLORUYHKLFOHIOXLGVSLOOVLPPHGLDWHO\
DQGPXVWQRWLI\&2817<5HSUHVHQWDWLYHZLWKLQWZHQW\IRXU KRXUVRIHDFKVXFK
VSLOO$OOYHKLFOHVPXVWFDUU\DQDFFHSWDEOHDEVRUEHQWPDWHULDOWRXVHLQWKHHYHQWRI
VSLOOV5HSDLUIRUGDPDJHVFDXVHGE\RLORURWKHUYHKLFOHVSLOOVVKDOOEHDW
&2175$&725¶VH[SHQVH&2175$&725ZLOOIROORZWKHVSLOOSURFHGXUHVEHORZ
'ULYHUZLOOGHWHUPLQHFDXVHDQGVRXUFHRIVSLOO
(DFKGULYHURUVKRSHPSOR\HHLVUHVSRQVLEOHIRUKDYLQJHQRXJKDEVRUEHQW
LQWKHLUYHKLFOHWRFRQWDLQRUSUHYHQWDQ\K\GUDXOLFIOXLGRURLOIURPHQWHULQJ
DVWRUPGUDLQRUVHZHUDQGWRFOHDQXSVPDOOVSLOOVDVWKH\RFFXU
'ULYHUZLOOFRQWDLQRUVWRSWKHOHDNDQGFOHDQLWXSZLWKRXWHQGDQJHULQJ
VHOI
'ULYHUZLOOLPPHGLDWHO\QRWLI\GLVSDWFKRUVXSHUYLVRU
'ULYHUZLOOQRWOHDYHWKHVSLOOXQWLOHLWKHUDVXSHUYLVRURUVSLOOUHVSRQVH
SHUVRQQHODUULYHDWWKHVFHQH
'ULYHUZLOONHHSDOOSHRSOHFDUVRURWKHUYHKLFOHVIURPZDONLQJRUGULYLQJ
WKURXJKWKHVSLOO
'ULYHURUVSLOOUHVSRQVHSHUVRQQHOZLOOWDNHZKDWHYHUDFWLRQSRVVLEOHWR
SUHYHQWWKHVSLOOIURPHQWHULQJDQ\VWRUPGUDLQJUDWHVRURWKHUHQWU\
SRLQWV
([KLELW%
3DJHRI
3HUVRQQHO
*HQHUDO
&2175$&725VKDOOIXUQLVKVXFKTXDOLILHGGULYHUVPHFKDQLFDOVXSHUYLVRU\FOHULFDO
DQGRWKHUSHUVRQQHODVPD\EHQHFHVVDU\WRSURYLGHWKH6HUYLFHVUHTXLUHGE\WKLV
$JUHHPHQWLQDVDIHDQGHIILFLHQWPDQQHU
'ULYHU4XDOLILFDWLRQV
$OOGULYHUVVKDOOEHWUDLQHGDQGTXDOLILHGLQWKHRSHUDWLRQRI&ROOHFWLRQYHKLFOHVDQGPXVW
KDYHLQHIIHFWDYDOLGOLFHQVHRIWKHDSSURSULDWHFODVVZLWKDSSURSULDWHHQGRUVHPHQWV
LVVXHGE\WKH&DOLIRUQLD'HSDUWPHQWRI0RWRU9HKLFOHV$OO&ROOHFWLRQYHKLFOHGULYHUV
VKDOODOVRFRPSOHWH&2175$&725¶VLQKRXVHWUDLQLQJSURJUDPZKLFKLQFOXGHV
HGXFDWLRQRQWKHXVHRIDOOYHKLFOHVLQWKH&ROOHFWLRQIOHHW&ROOHFWLRQSURJUDPVDQG
URXWHLQIRUPDWLRQDVZHOODV&XVWRPHUVHUYLFHSUDFWLFHVDQGVDIHW\LQIRUPDWLRQ
%DFNJURXQG&KHFNV
7RWKHH[WHQWSHUPLWWHGE\$SSOLFDEOH/DZ&2175$&725VKDOOSULRUWRKLULQJD
GULYHUDQG IRUDOOSUHVHQWO\KLUHGGULYHUVIRUZKRPVXFKUHSRUWVKDYHQRWEHHQ
SUHYLRXVO\ REWDLQHG UHTXHVW D UHSRUW RU UHSRUWV IURP WKH 6WDWH RI &DOLIRUQLD
LQGLFDWLQJZKHWKHU L WKHLQGLYLGXDOLVOLVWHGE\WKH6WDWHDVDVH[XDOSUHGDWRUDQG
LL WKHLQGLYLGXDOKDV DIHORQ\UHFRUGRIYLROHQFHZLWKWKH6WDWH&2175$&725ZLOO
QRWHPSOR\DQLQGLYLGXDODVDGULYHULIWKRVHUHSRUWVVKRZWKDWWKHLQGLYLGXDOLVVR
OLVWHGRUKDVVXFKDUHFRUGXQOHVVWKHUHSRUWVDUHGHPRQVWUDWHGWREHHUURQHRXV
2QFH HDFK FDOHQGDU \HDU &2175$&725 VKDOO UHTXHVW IURP WKH &DOLIRUQLD
'HSDUWPHQWRI0RWRU9HKLFOHVDUHSRUWRIYLRODWLRQVFRPPLWWHGE\GULYHUVHPSOR\HG
E\&2175$&725DQGVKDOOWDNHVXFKDFWLRQLIDQ\DV&2175$&725GHHPV
DSSURSULDWHEDVHGRQVXFKUHSRUW&2175$&725PD\VDWLVI\WKHVHUHTXLUHPHQWV
([KLELW%
3DJHRI
ZLWKDEDFNJURXQGFKHFNSHUIRUPHGE\DWKLUGSDUW\LQWKHEXVLQHVVRISURYLGLQJ
VXFKEDFNJURXQGFKHFNV&2175$&725VKDOOEHHQWLWOHGWRUHO\ZLWKRXWIXUWKHU
LQTXLU\RQWKHUHSRUWVREWDLQHGIURPWKH6WDWHRI&DOLIRUQLDRUVXFKWKLUGSDUW\
6DIHW\7UDLQLQJ
&2175$&725VKDOOSURYLGHVXLWDEOHRSHUDWLRQDODQGVDIHW\WUDLQLQJIRUDOORILWV
HPSOR\HHVZKRXWLOL]HRURSHUDWHYHKLFOHVRUHTXLSPHQWIRUFROOHFWLRQRUZKRDUH
RWKHUZLVHGLUHFWO\LQYROYHGLQVXFKVHUYLFHV&2175$&725VKDOOWUDLQLWVHPSOR\HHV
LQYROYHGLQ&ROOHFWLRQWRLGHQWLI\DQGQRWWR&ROOHFW([FOXGHG:DVWH
1R*UDWXLWLHV
&2175$&725VKDOOQRWSHUPLWLWVHPSOR\HHVWRGHPDQGVROLFLWRUDFFHSWGLUHFWO\RU
LQGLUHFWO\DQ\DGGLWLRQDOFRPSHQVDWLRQRUJUDWXLW\IURPPHPEHUVRIWKHSXEOLFIRUWKH
&ROOHFWLRQ6HUYLFHVXQGHUWKLV$JUHHPHQW&2175$&725PD\SHUPLWLWVHPSOR\HHVWR
DFFHSWVPDOOKROLGD\JLIWVRIQRPLQDOYDOXH
3URYLVLRQRI)LHOG6XSHUYLVLRQ
&2175$&725VKDOOGHVLJQDWHRQHTXDOLILHGHPSOR\HHDVVXSHUYLVRURIILHOG
RSHUDWLRQV7KHILHOGVXSHUYLVRUVKDOOGHYRWHZKDWHYHUWLPHLVQHFHVVDU\EXWQRWOHVV
WKDQILIW\SHUFHQW RIKLVKHUWLPHLQWKHILHOGFKHFNLQJRQFROOHFWLRQRSHUDWLRQV
LQFOXGLQJUHVSRQGLQJWRFRPSODLQWV
*HQHUDO6XSHUYLVLRQ
7KH&ROOHFWLRQ6HUYLFHVDUHXQGHUWKHJHQHUDOVXSHUYLVLRQRI&2817<5HSUHVHQWDWLYH
DQG&2175$&725VKDOOSURPSWO\FRPSO\ZLWKDQ\&2817<RUGHUVGLUHFWLRQVDQG
LQVWUXFWLRQVWKDWDUHFRQVLVWHQWZLWKWKHWHUPVRIWKLV$JUHHPHQW&2817<UHVHUYHVWKH
ULJKWWRLQVSHFWDQ\DQGDOORI&2175$&725¶VHTXLSPHQW GXULQJQRUPDOEXVLQHVV
KRXUVZLWKRXWSULRUQRWLFH
([KLELW%
3DJHRI
5HF\FODEOH*UHHQ:DVWHDQG2UJDQLF0DWHULDOV3URFHVVLQJDQG0DUNHWLQJ
*HQHUDO2SHUDWLRQVDQG0DLQWHQDQFH6WDQGDUGV
&2175$&725FRYHQDQWVWRFRPSO\ZLWK&2175$&725¶VSHUIRUPDQFHREOLJDWLRQV
WKURXJKRXWWKHWHUPRIWKH$JUHHPHQWDQGWRSHUIRUP&2175$&725¶VSHUIRUPDQFH
REOLJDWLRQVZLWKUHVSHFWWR5HF\FODEOH*UHHQ:DVWHDQG2UJDQLF0DWHULDOVSURFHVVLQJ
DQGPDUNHWLQJVHUYLFHVLQDFFRUGDQFHZLWKDFFHSWHGSUDFWLFHIRUFRPSDUDEOH
SURFHVVLQJIDFLOLWLHVVRXQGPDQDJHPHQWDQGRSHUDWLRQVSUDFWLFHWKHIDFLOLW\¶VRSHUDWLRQ
DQGPDLQWHQDQFHPDQXDOSODQVDQGVSHFLILFDWLRQVSHUPLWVDSSOLFDEOHODZ LQFOXGLQJ
26+$VWDQGDUGV SURYLVLRQVKHUHRIDQGFRYHQDQWVFRQGLWLRQVDQGUHVWULFWLRQV
SHUWDLQLQJWRWKHVLWH
&2175$&725VKDOOEHUHVSRQVLEOHIRUPDLQWDLQLQJDQGUHQHZLQJDOOQHFHVVDU\
SHUPLWVOLFHQVHVDQGFOHDUDQFHVQHFHVVDU\WRSURYLGHWKHWUDQVSRUWDWLRQDQG
SURFHVVLQJRI6ROLG:DVWH5HF\FODEOH0DWHULDOV*UHHQ:DVWHDQG2UJDQLF0DWHULDOV
&2175$&725VKDOOPDLQWDLQDQGUHQHZSHUPLWV SURYLGHGKRZHYHU&2175$&725
VKDOOQRWEHUHVSRQVLEOHIRUDQ\GHOD\VLQPDLQWDLQLQJRUUHQHZLQJRUIDLOXUHWRPDLQWDLQ
RUUHQHZWKHSHUPLWVLI&2175$&725KDVH[HUFLVHGGXHGLOLJHQFHLQPDLQWDLQLQJ
DQGRUUHQHZLQJWKHSHUPLWVDQGVXFK IDLOXUHLVFDXVHGE\DQ\DFWLRQRULQDFWLRQRIWKH
LVVXLQJRUUHQHZLQJDXWKRULW\
&2175$&725VKDOOPHHWDOODSSOLFDEOHUHJXODWLRQVDQGLQGXVWULDOFRGHVHLWKHUDV
VWDWHGRUDVLQVWDQGDUGLQGXVWU\SUDFWLFH
&2175$&725VKDOOKDYHWKHUHVSRQVLELOLW\IRUWKHVDOHRIUHFRYHUHGPDWHULDOVDQG
FROOHFWLRQRISD\PHQWWKHUHRI
0DLQWHQDQFHDQG5HSDLU
&2175$&725VKDOOPDLQWDLQWKHIDFLOLW\DQGVLWHLQJRRGZRUNLQJRUGHUDQGUHSDLU
LQFOXGLQJPDLQWDLQLQJVSDUHSDUWVLQYHQWRU\DQGSHUIRUPLQJSHULRGLFPDLQWHQDQFHLQ
([KLELW%
3DJHRI
DFFRUGDQFHZLWKRSHUDWLRQVDQGPDLQWHQDQFHPDQXDOPDQXIDFWXUHU¶V
UHFRPPHQGDWLRQVDFFHSWHGSUDFWLFHIRUFRPSDUDEOHIDFLOLWLHVDQGVRXQGPDQDJHPHQW
DQGRSHUDWLRQVSUDFWLFH&2175$&725VKDOOPDLQWDLQWKHDHVWKHWLFDSSHDUDQFHRIWKH
IDFLOLW\DQGVLWHLQDFOHDQPDQQHULQDFFRUGDQFHZLWKWKHSODQVDQGVSHFLILFDWLRQVZLWK
GXHUHJDUGIRUUHDVRQDEOHFRQWURORIRGRUVGXVWDQGQRLVH
6DIHW\
&2175$&725VKDOOFRQGXFWIDFLOLW\RSHUDWLRQVLQDVDIHPDQQHULQDFFRUGDQFHZLWK
DSSOLFDEOHODZVUHTXLUHPHQWVRILQVXUDQFHFDUULHGDQGVWDQGDUGLQGXVWU\SUDFWLFHVLQ
WKHZDVWHPDQDJHPHQWFRPSRVWLQJRUJDQLFKDQGOLQJDQGPDWHULDOVUHFRYHU\LQGXVWU\
5LJKWWR(QWHUDQG,QVSHFW)DFLOLW\
&2817<DQGLWVGHVLJQDWHGUHSUHVHQWDWLYHVKDOOKDYHWKHULJKWEXWQRWWKHREOLJDWLRQ
WR HQWHUREVHUYHDQGLQVSHFWWKHSURFHVVLQJIDFLOLW\GXULQJWKHUHFHLYLQJKRXUV PHHW
ZLWKWKHIDFLOLW\PDQDJHURUKLVKHUUHSUHVHQWDWLYHGXULQJVXFKWLPH DQGPHHWZLWKRWKHU
HPSOR\HHVXSRQUHTXHVWZKLFKUHTXHVWVKDOOQRWEHXQUHDVRQDEO\GHQLHG8SRQ
&2817<UHTXHVW&2175$&725VKDOOPDNHSHUVRQQHODYDLODEOHWRDFFRPSDQ\
&2817<HPSOR\HHVRQLQVSHFWLRQV&2175$&725VKDOOHQVXUHWKDWLWVHPSOR\HHV
FRRSHUDWHZLWK&2817<DQGUHVSRQGWR&2817<¶VUHDVRQDEOHLQTXLULHV2WKHUWKDQ
ILQDQFLDOUHFRUGV&2175$&725VKDOOPDNHRSHUDWLRQDODQGEXVLQHVVUHFRUGVUHODWHG
WRWKLV$JUHHPHQWDYDLODEOHWR&2817<GXULQJUHFHLYLQJKRXUVXSRQ&2817<UHTXHVW
3HUVRQQHO
&2175$&725VKDOOHQJDJHDQGWUDLQTXDOLILHGDQGFRPSHWHQWHPSOR\HHVLQFOXGLQJ
PDQDJHULDOVXSHUYLVRU\FOHULFDOPDLQWHQDQFHDQGRSHUDWLQJSHUVRQQHOLQQXPEHUV
QHFHVVDU\DQGVXIILFLHQWIRUIDFLOLW\RSHUDWLRQVDQGWRSHUIRUP&2175$&725¶V
REOLJDWLRQXQGHUWKLV$JUHHPHQW&2175$&725VKDOOWUDLQVXFKVWDIIWRSHUIRUPWKHLU
([KLELW%
3DJHRI
ZRUNLQDVDIHDQGHIILFLHQWPDQQHULQDFFRUGDQFHZLWKWKHKHDOWKDQGVDIHW\SODQLQWKH
IDFLOLW\¶VRSHUDWLRQVDQGPDLQWHQDQFHPDQXDO
5HFRYHU\6WDQGDUGV
&2175$&725VKDOOXVHUHDVRQDEOHEXVLQHVVHIIRUWVWRPD[LPL]HWKHUHFRYHU\RI
GHOLYHUHGPDWHULDOVLQDPDQQHUDFFHSWDEOHWRUHFHLYHGLYHUVLRQFUHGLWXQGHU$%
DQGIRUWKH&2817<&2175$&725DQGDOO&XVWRPHUVWRUHPDLQLQFRPSOLDQFHZLWK
RWKHUDSSOLFDEOH6WDWHODZVSDUWLFXODUO\$%$%DQG6%
)LQLVKHG3URGXFW6WDQGDUG
7KHSURFHVVHG5HF\FODEOHVDQGRUWKHILQLVKHGSURGXFWVKDOOPDLQWDLQSK\VLFDODQG
FKHPLFDOVSHFLILFDWLRQVVXFKDVWRFRPSO\ZLWKDOODSSOLFDEOHODZVRUGLQDQFHV
UHJXODWLRQVDQGSHUPLWFRQGLWLRQV
7UDQVSRUWDWLRQRI5HVLGXH
&2175$&725VKDOOWUDQVSRUWDQGGHOLYHUDOO5HVLGXHWRD'LVSRVDO)DFLOLW\DIWHULWV
GHOLYHU\WRWKH SURFHVVLQJIDFLOLW\ZLWKLQWKHWLPHIUDPHVUHTXLUHGE\WKHIDFLOLW\¶VSHUPLWV
DQGLQQRHYHQWORQJHUWKDQUHTXLUHGE\$SSOLFDEOH/DZ&2175$&725VKDOOVHOHFW
URXWHVIURPWKHIDFLOLW\WRWKHGLVSRVDOIDFLOLW\ZKLFKPLQLPL]HLQFRQYHQLHQFHDQG
GLVWXUEDQFHWRWKHSXEOLFDQGFRPSO\ZLWKSHUPLWVDQGDSSOLFDEOHODZ&2175$&725
VKDOOHQFORVHRUFRYHUDOOYHKLFOHVWUDQVIHUULQJUHVLGXHIURPWKHIDFLOLW\WRSUHYHQW
VSLOODJH
:HLJKLQJ
&2175$&725VKDOOUHFRUGWRQQDJHVRIPDWHULDOVUHFHLYHGDQGGLYHUWHGDQGWKH
UHFRUGHGGDWDPXVWLQGLFDWHWKH&2175$&725¶VQDPHDQGWRQQDJHGHOLYHUHG
6XEVWLWXWH6FDOHV
,I&2175$&725SRVVHVVHVLWVRZQVFDOHVVFDOHVVKDOOEHLQVWDOOHGDQGPDLQWDLQHGLQ
DFFRUGDQFHZLWKDSSOLFDEOHODZ7RWKHH[WHQWWKDW&2175$&725¶VVFDOHVDUH
([KLELW%
3DJHRI
LQRSHUDEOHEHLQJWHVWHGRURWKHUZLVHXQDYDLODEOH&2175$&725VKDOOVXEVWLWXWH
SRUWDEOHVFDOHVXQWLOWKHSHUPDQHQWVFDOHVDUHUHSODFHGRUUHSDLUHG&2175$&725
VKDOODUUDQJHIRUWKHVFDOHWREHUHSDLUHGRUWHPSRUDULO\VXEVWLWXWHVFDOHVWREHXVHGDV
VRRQDVSRVVLEOHDQGLQDQ\HYHQWZLWKLQIRUW\HLJKW KRXUVDIWHUIDLOXUHRIWKH
SHUPDQHQWVFDOHV
(VWLPDWLQJ9ROXPHV
3HQGLQJVXEVWLWXWLRQRISRUWDEOHVFDOHV&2175$&725VKDOOHVWLPDWHWKHTXDQWLW\RI
PDWHULDOVEHLQJGHOLYHUHGWRWKHSURFHVVLQJIDFLOLW\DQGUHVLGXHDQGUHFRYHUHGPDWHULDOV
EHLQJWUDQVSRUWHGIURPWKHSURFHVVLQJIDFLOLW\RQWKHEDVLVRIGHOLYHU\WUXFNDQGWUDQVIHU
WUDLOHUYROXPHVWDUHZHLJKWEURNHU¶VZHLJKUHFRUGVDQGGDWDREWDLQHGWKURXJK
KLVWRULFDOLQIRUPDWLRQIURPWKHSURFHVVLQJIDFLOLW\DQG SXUFKDVHUVRIUHFRYHUHGPDWHULDOV
XVLQJDPHWKRGRORJ\DFFHSWDEOHWR&2817<7KHVHHVWLPDWHVVKDOOWDNHWKHSODFHRI
DFWXDOZHLJKLQJDQGVKDOOEHWKHEDVLVIRUUHFRUGVZKLOHVFDOHVDUHLQRSHUDEOH
7HVWLQJRI6FDOHV
&2175$&725VKDOOWHVWDQGFDOLEUDWH DOOVFDOHVLQDFFRUGDQFHZLWKDSSOLFDEOHODZEXW
DWOHDVWHYHU\WZHOYHPRQWKV3ULRUWRDQ\WHVW&2175$&725VKDOOSURYLGHDWOHDVW
ILYH GD\VQRWLFHWKHUHRIWRWKH&2817<8SRQ&2817<UHTXHVWLWVKDOOSURYLGH
WKH&2817<ZLWKFRSLHVRIWKHWHVWUHVXOWV
([KLELW%
3DJHRI
Page 1 of 1
EXCLUSIVE SERVICE AREA NO. 11
NARRATIVE DESCRIPTION OF TERRITORY
P. G. & E.'s Balch Camp on the North Fork of the Kings River would be the
Northern boundry.TheKingsRivermainforkbetweenCamp4 ½ and Kirch Flat
campground is the River Rafting base camp area. Snowline Lodge on Kings Canyon
Highway going East until the road
ends in Kings Canyon National Park.
This area would encompass Snowline Lodge area, Armenian Church
Camp, Sequoia Lake YMCA, Boyden Cave & Convict Flat campground and
Cedar Grave NPS on the South Fork of the Kings River drainage.
NOTES:
Originally Sequoia Disposal –8/30/05 –Agenda Item #14 Agreement #05-419
Assigned to Tule Trash Co. - 4/24/12 –Agenda Item #33 Assignment Agreement #12-170
Exhibit C
ÃÅ
ÃÅ
ÃÅ ÃÅ
ÃÅÃÅ
ÃÅÃÅ
ÃÅÃÅ
ÃÅ
ÃÅ
ÃÅ
§¨¦
'RFXPHQW3DWK * ?&'6?.ROHH?3:3352-(&76?62/,':$67(??(6$30DS??(6$3?8SGDWH0[G?&RXQW\B(6$3B+DXOHUP[G
ÃÅ
ÃÅ
ÃÅ
ÃÅ
2/,9(
1257+
+(51'21
$6+/$1),5670&&$//)2:/(53$/0&(175$/
&/,1721
0&.,1/(<
-(16(1 )5(612*0$5.63($&+0$3/(6+$:
%8//$5'(/0+%(/0217
6+(3+(5'7(03(5$1&($//89,$/0:,//2:&+(67187&251(/,$&$/,)251,$+$<(66,(55$
30$52$*5$17/$1'78/$5(%/<7+(($679,//$%/$&.6721(*(77<6%85*:(67%5<$1%87/(5:(
%
(5&+(55<&/29,69$11(66)58,71,(/6(1
5
),*&+85&+
.,1*6&$1<21
&('$525$1*(9(1785$
7($*8(:$/187$5067521*:+,7(6%5,'*($%%<2.($51(<+8*+(6:,6+21$11$'$/(
/$1(0,11(:$:$72//+286(
1((6
0,//%522.6$1-26(6811<6,'($8'
8%
2
1
%'$17(6+,(/'6
*2/
'
(1
6
7
$
7
(%5$:/(<,1*5$0'$.27$
6358&('(:2/)0$',621 /(21$5'32/.),)7+
),*$5'(1
5,9(59,67$7(,/0$1*$7(60,/%8519$/(17,1(/2&$1(0
(
5
6
2
1
%$5672:
&2/
(
3
$
5
.
:
$
<
6:,)7
:(67'$.27$
%(/0217
:+,7(6%5,'*(*2/'
(1
6
7
$
7
(:,//2:9$/(17,1(%8//$5'3($&+/2&$172//
+
2
8
6
(
&/,17210,11(:$:$1((63($&+%$5672:
'$.27$+8*+(6&+85&+
6+,(/'6
)58,76+,(/'6
'$.27$
%
*(77<6%85*0,11(:$:$0$3/(6+,(/'6
),*:,//2:6+$:6811<6,'($6+/$1
*2/
'
(1
6
7
$
7
(0$5.632/.&('$53($&+&+(67187$5067521**
2
/
'
(
1
6
7
$
7
(
&$/,)251,$+8*+(6.,1*6&$1<21 7(03(5$1&(6,(55$72/
/
+
2
8
6
(%5$:/(<&$/,)251,$0,//%522.'DWH
([KLELW
&RXQW\RI)UHVQR
ESAPTERRITORY BOUNDARIES
±
0LOHV
,QFRUSRUDWHG&LWLHV
1RWLQFOXGHGLQSURJUDP
0LG9DOOH\'LVSRVDO
$OOLHG:DVWH6HUYLFHV
:DVWH0DQDJHPHQW
,QGXVWULDO:DVWH 6DOYDJH
3HaQD
V'LVSRVDO
0LUDPRQWH6DQLWDWLRQ
7XOH7UDVK
*UDQLWH6ROLG:DVWH
:HVWHUQ6ROLG:DVWH
6(5
+DXOHU
V7HUULWRU\%RXQGDULHV
$*7
+$8/(5
([KLELW&
ÃÅ
§¨¦
ÃÅ
ÃÅ
ÃÅ ÃÅ
ÃÅÃÅ
ÃÅÃÅ
ÃÅ
ÃÅ
ÃÅ
ÃÅ
&RXQW\RI)UHVQR
ESAP SERVICE RATE AREAS ±
'RFXPHQW3DWK * ?&'6?.ROHH?3:3352-(&76?62/,':$67(??(6$30DS??(6$3?8SGDWH0[G?&RXQW\B(6$3B=RQHVP[G
ÃÅ
ÃÅ
ÃÅ
ÃÅ
2/,9(
1257+
%(/0217
+(51'21
$6+/$1
0&&$//),567)2:/(53$/0&(175$/
&/,1721
0&.,1/(<)5(612*0$5.6-(16(1
3($&+0$3/((/0%8//$5'+7(03(5$1&($//89,$/0&251(/,$:,//2:+$<(66+$:
6,(55$0$52$&$/,)251,$($6778/$5(3%/<7+(9,//$%/$&.6721(*(77<6%85*:(67%87/(5
&+(55<&/29,6:(%(59$11(66)58,71,(/6(1
&('$55
25$1*(&+85&+),*9(1785$
7($*8(:$/187.,1*6&$1<21
$5067521*$%%<.($51(<+8*+(62$11$'$/(:,6+21)5,$17/$1(
1((6
:+,7(6%5,'*(0,//%522.6$1-26(*2/'(1
6
7
$
7(6811<6,'($8'8%
2
1
0,11(:$:$'$17(%%5$:/(<72/
/
+
2
8
6
(,1*5$0$,5:$<6
'$.27$
6358&('(:2/)0$',621 /(21$5'32/.&+(67187),)7+
),*$5'(1 '(:2/)5,9(59
,
6
7
$7(,/0$16+,(/'60,/%8519$/(17,1(/2&$1(0
(
5
6
2
1
%$5672:
&2/(
&$/,)251,$
%$5672::,//2:+8*+(63($&+%(/0217:(%(50,//%522.0$5.6%
-(16(1 '(:2/))58,7'$.27$:,//2:/2&$11((6
*2/'
(
1
6
7
$
7
($5067521*$6+/$1
%8//$5'
6+$:
'$.27$3($&+'$.27$0,11(:$:$&+85&+9$/(17,1(6+,(/'6
*(77<6%85*),*6,(55$0$3/(&('$5.,1*6&$1<21
&$/,)251,$:(676,(55$%5$:/(<9$/(17,1()UHVQR
&ORYLV
'DWH
)UHVQR&ORYLV0HWURSROLWDQ$UHD¤=21(
¤=21(
%¤=21(
¤
=21(
¤
=21(
$
0LOHV
6(59,&(5$7($5($6
=21(
=21($
=21(%
=21(
6(5
([KLELW&
ÃÅÃÅ
ÃÅ
)UHVQR
6HOPD
6DQJHU
5HHGOH\
)RZOHU
3DUOLHU
.LQJVEXUJ
2UDQJH&RYH
'RFXPHQW3DWK * ?&'6?.ROHH?3:3352-(&76?62/,':$67(??(6$30DS??(6$3?8SGDWH0[G?(6$3B6(5P[G'DWH
&RXQW\RI)UHVQR
Southeast Regional Area ( SER )±
0LOHV
6(59,&(5$7($5($6
=21(
=21($
=21(%
=21(
+DXOHU
V7HUULWRU\%RXQGDULHV
,QFRUSRUDWHG&LWLHV
1RWLQFOXGHGLQSURJUDP
$*7+$8/(5
0LG9DOOH\'LVSRVDO
:DVWH0DQDJHPHQW
3HaQD
V'LVSRVDO
0LUDPRQWH6DQLWDWLRQ
([KLELW&
(;+,%,7'
6&+('8/(2)0$;,080&$575$7(6
SHUPRQWKSHUFXVWRPHU $GMXVWHGIRU$PHULFDQ$YHQXH7LS)HH,QFUHDVH-XO\
6(55DWHVHIIHFWLYH)HEUXDU\
=RQH
=RQH D
=RQH E
=RQH
1RWHV
6(5 5DWH LV RQO\ DSSOLFDEOH WR UHVLGHQWV ZLWKLQ WKH 6(5 7HUULWRU\ 0DS $WWDFKHG 7R &DOFXODWH WKH 6(5 5DWH D
KDXOHU ZLOOQHHG WR DGG FXUUHQWUDWHWR6(5RYHUOD\6(52YHUOD\DUHQRWVXEMHFWWR&3,,QFUHDVHV
=RQHUDWHVUHIOHFWDUHGXFWLRQDVSURSRVHG
7KH UDWH WR SURYLGH 2UJDQLF 0DWHULDOV &ROOHFWLRQ DQG 3URFHVVLQJ 6HUYLFHV VKDOO EH RI WKH FRPSDUDEOH VL]H DQG IUHTXHQF\
RI6ROLG:DVWH&ROOHFWLRQ5DWHVSOXVWKHDFWXDOFRVWSHUWRQIRU2UJDQLF0DWHULDOV3URFHVVLQJ
$Q\%LQVHUYLFHSURYLGHGWRUHVLGHQFHV LQFOXGLQJDQGF\%LQV ZLOOEHUHSRUWHGDV&RPPHUFLDOVHUYLFHIRUUHSRUWLQJ
SXUSRVHV
$OOUDWHVZLOOEHVXEMHFWWR&RQVXPHU3ULFH,QGH[ &3, LQFUHDVHHYHU\-XO\7KH&3,ZLOOEHDGMXVWHGE\WKHDSSOLFDEOH
SHUFHQWDJHZKLFKLVIRU&DUW5DWHV3UHVHQWHGDVSHUPRQWKSHUFXVWRPHU DGMXVWHGIRU$$'6 LQFUHDVHLQ7LS)HH
-XO\
&DUW6L]H &XUUHQW5DWHV
$$'65DWH
$GMXVWPHQW
1HZ5DWH
6(52YHUOD\
JDOFRQW
JDOFRQW
JDOFRQW
&DUW6L]H &XUUHQW5DWHV
$$'65DWH
$GMXVWPHQW
1HZ5DWH
6(52YHUOD\
JDOFRQW 1$1$1$1$
JDOFRQW
JDOFRQW
&DUW6L]H &XUUHQW5DWHV
$$'65DWH
$GMXVWPHQW
1HZ5DWH
6(52YHUOD\
JDOFRQW 1$1$1$1$
JDOFRQW
JDOFRQW
&DUW6L]H &XUUHQW5DWHV
$$'65DWH
$GMXVWPHQW
1HZ5DWH
1HZ5DWH LQFOXGHV
UHGXFWLRQ
6(52YHUOD\
1$1$
JDOFRQW
JDOFRQW
([KLELW'
3DJHRI
(;+,%,7'
6&+('8/(2)0$;,080&$575$7(6
1RWHV &RQW¶G
+DXOHUVDUHUHTXLUHGWRSD\DOOIHHVDQG6XUFKDUJHV ([LVWLQJIHHVDQG6XUFKDUJHVLQFOXGH
D $% 6HUYLFH)HHHTXDOWRWKUHHSHUFHQW RI5DWH5HYHQXHVIRUWKHILUVWDQGVHFRQG\HDUDQGDQ$%
6HUYLFH)HHHTXDOWRIRXUSHUFHQW RI5DWH5HYHQXHV IRUWKHWKLUGDQGDOOVXEVHTXHQW\HDUVRIWKH([WHQVLRQ7HUP
E +DXOHUVKDOOSD\WKH&2817<6ROLG:DVWH6XUFKDUJHVIRU6ROLG:DVWHJHQHUDWHGLQWKH&2817<ZKLFKDVRIWKH
GDWHRIH[HFXWLRQRIWKLV$JUHHPHQWDUHFXUUHQWO\LQWKHIROORZLQJDPRXQWV
x 6RXWKHDVW5HJLRQDO 6(5 6XUFKDUJH 7KUHH'ROODUVDQG)LIW\&HQWV SHUWRQFORVXUHSRVWFORVXUH
PDLQWHQDQFHIHHIRU6ROLG:DVWHJHQHUDWHGDQGFROOHFWHGZLWKLQWKH6RXWKHDVW5HJLRQDO6ROLG:DVWH
&RPPLVVLRQ$UHDDVLGHQWLILHGLQ)UHVQR&RXQW\2UGLQDQFH&RGH 6HFWLRQ DQG
x 6ROLG:DVWH0DQDJHPHQW3URJUDP$FWLYLWLHV 6:03$ 6XUFKDUJH 7KUHH'ROODUVDQG)RUW\2QH&HQWV
SHUWRQVXUFKDUJHIRU6ROLG:DVWHPDQDJHPHQWSURJUDPDFWLYLWLHV 127( WKLVVXUFKDUJHLV
LQFRUSRUDWHGLQWR$PHULFDQ$YHQXH/DQGILOOWLSSLQJIHH
([KLELW'
3DJHRI
(;+,%,7'
6&+('8/(2)0$;,080%,15$7(6
SHUPRQWKSHUFXVWRPHU $GMXVWHGIRU$PHULFDQ $YHQXH7LS)HH,QFUHDVH-XO\ 6(55DWHVHIIHFWLYH)HEUXDU\
1RWHV
DQG FXELF\DUGELQVDUHSURYLGHGDWWKHGLVFUHWLRQRIWKHKDXOHU1RQHRIWKH0RXQWDLQVHUYLFHUDWHDUHDKDXOHUVKDYHSURSRVHGWRSURYLGHWKHVHRGGVL]HGFRQWDLQHUVWKHUHIRUHQRUDWHLVSURSRVHGLQWKH0RXQWDLQVHUYLFHUDWHDUHD
6(55DWHLVRQO\DSSOLFDEOHWRUHVLGHQWVZLWKLQWKH6(57HUULWRU\ 0DS$WWDFKHG 7R&DOFXODWHWKH6(55DWHDKDXOHUZLOOQHHGWRDGGFXUUHQWUDWH WR6(5RYHUOD\6(52YHUOD\DUHQRWVXEMHFWWR&3,,QFUHDVHV
([KLELW'
3DJHRI
(;+,%,7'
6&+('8/(2)0$;,080%,15$7(6
1RWHV &RQW¶G
7KHUDWHWRSURYLGH2UJDQLF0DWHULDOV&ROOHFWLRQDQG3URFHVVLQJ6HUYLFHVVKDOOEHRIWKHFRPSDUDEOHVL]HDQGIUHTXHQF\RI 6ROLG:DVWH&ROOHFWLRQUDWHVSOXVWKHDFWXDOFRVWSHUWRQIRUWUDQVIHUDQGRU2UJDQLF0DWHULDOV3URFHVVLQJ$Q\%LQVHUYLFH
SURYLGHGWRUHVLGHQFHV LQFOXGLQJDQGF\%LQV ZLOOEHUHSRUWHGDV&RPPHUFLDOVHUYLFHIRUUHSRUWLQJSXUSRVHV
$OOUDWHVZLOOEHVXEMHFWWR&RQVXPHU3ULFH,QGH[ &3, LQFUHDVHHYHU\-XO\7KH&3,ZLOOEHDGMXVWHGE\WKHDSSOLFDEOHSHUFHQWDJHZKLFKLV IRU%LQ5DWHV 3UHVHQWHGDVSHUPRQWKSHUFXVWRPHU DGMXVWHGIRU$$'6 ,QFUHDVHLQ7LS)HH-XO\
+DXOHUVDUHUHTXLUHGWRSD\DOOIHHVDQG6XUFKDUJHV ([LVWLQJIHHVDQG6XUFKDUJHVLQFOXGH
D $% 6HUYLFH)HHHTXDOWRWKUHHSHUFHQW RI5DWH5HYHQXHVIRUWKHILUVWDQGVHFRQG\HDUDQGDQ$% 6HUYLFH)HHHTXDOWRIRXUSHUFHQW RI5DWH5HYHQXHVIRUWKHWKLUGDQGDOOVXEVHTXHQW\HDUVRIWKH([WHQVLRQ7HUP
E +DXOHUVKDOOSD\WKH&2817<6ROLG:DVWH6XUFKDUJHVIRU6ROLG:DVWHJHQHUDWHGLQWKH&2817<ZKLFKDVRIWKHGDWHRIH[HFXWLRQRIWKLV$JUHHPHQWDUHFXUUHQWO\LQWKHIROORZLQJDPRXQWV
x 6RXWKHDVW5HJLRQDO 6(5 6XUFKDUJH 7KUHH'ROODUVDQG)LIW\&HQWV SHUWRQFORVXUHSRVWFORVXUHPDLQWHQDQFHIHHIRU6ROLG:DVWHJHQHUDWHGDQGFROOHFWHGZLWKLQWKH6RXWKHDVW5HJLRQDO6ROLG:DVWH&RPPLVVLRQ$UHDDV
LGHQWLILHGLQ)UHVQR&RXQW\2UGLQDQFH&RGH6HFWLRQ DQG
x 6ROLG:DVWH0DQDJHPHQW3URJUDP$FWLYLWLHV 6:03$ 6XUFKDUJH 7KUHH'ROODUVDQG)RUW\2QH&HQWV SHUWRQVXUFKDUJHIRU6ROLG:DVWHPDQDJHPHQWSURJUDPDFWLYLWLHV 127( WKLVVXUFKDUJHLVLQFRUSRUDWHGLQWR$PHULFDQ
$YHQXH/DQGILOOWLSSLQJIHH
([KLELW'
3DJHRI
EXHIBIT D-2
SCHEDULE OF MAXIMUM SPECIAL SERVICE RATES
SPECIAL SERVICES RATES SUMMARY
Notes:Special Services are various Collection Services that CONTRACTOR is not required to
provide under this Agreement, but which CONTRACTOR shall offer to its Customers upon the
Customer’s request. This Schedule provides the maximum rates that CONTRACTOR may
charge for the services specified. These maximum rates are the same as those offered by all
other exclusive providers of Collection Services within the Service Rate Area. CONTRACTOR
may charge Customers less than these rates. The Notes section of this Schedule provides
further clarification of what these rates include. CONTRACTOR and any one or more of its
Customers may agree to any reasonable charge for unspecified Special Services for which no
specific charge is established on this Schedule.
Service Description Zone 1 Zone 2a Zone 2b Zone 3
Additional Container Pickup (1):
30-gal. cart $6 $10 $10 $25
60-gal. cart $10 $10 $15 $30
90-gal. cart $10 $11 $18 $35
1 CY bin $16 $20 $40 $40
1.5 CY bin $20 $25 $42 $45
2 CY bin $21 $25 $40 $45
3 CY bin $25 $30 $50 $50
4 CY bin $40 $45 $55 $55
5 CY bin $45 $50 $60 $60
6 CY bin $45 $55 $65 $75
300 gal. tub $60
Late Set Out Pickup (2):
30-gal. cart $10 $15 $15 $20
60-gal. cart $10 $15 $15 $20
90-gal. cart $15 $15 $18 $20
1 CY bin $20 $25 $30 $30
1.5 CY bin $25 $25 $30 $30
2 CY bin $25 $30 $30 $30
3 CY bin $30 $35 $35 $35
4 CY bin $35 $40 $40 $40
5 CY bin $50 $60 $60 $60
6 CY bin $55 $70 $75 $75
300 gal. tub $60
Extra Day Pickup (3):
30-gal. cart $10 $10 $10 $25
60-gal. cart $15 $15 $15 $30
90-gal. cart $18 $25 $25 $35
1 CY bin $32 $35 $40 $55
1.5 CY bin $37 $40 $45 $60
Exhibit D-2
Page 1 of 4
Service Description Zone 1 Zone 2a Zone 2b Zone 3
Extra Day Pickup (Cont’d.) (3):
2 CY bin $45 $50 $55 $65
3 CY bin $51 $60 $70 $75
4 CY bin $55 $66 $70 $75
5 CY bin $70 $80 $90 $103
6 CY bin $70 $83 $95 $120
300 gal. tub $100
Non-Standard Container Sizes
1.5 CY bin (Serviced once wk, per
container per month)
$80 $91 $91 $91
5 CY bin (Serviced once wk, per container
per mo.)
$149 $201 $217 $217
300 gal. tub $90
Side yard charge per household per mo.
(4)
$10 $10 $15 $15
On-call bulky items pickup per CY per
pickup
$25 $25 $35 $35
Maximum access charge per container per
mo. (5)
$30 $30 $30 $30
Key or code charges per container per
mo. (6)
$15 $15 $15 $15
Enclosure charges per container per mo.
(7)
$15 $15 $15 $15
Gate service charges per container per
mo. (8)
$15 $15 $15 $15
Drive-in charge per account per mo. 0.25
mile or under (9)
$15 $15 $15 $15
Cart switch, per switch (10)$30 $30 $30 $30
Bin switch, per switch (10)$55 $60 $60 $60
Replacement of damaged carts, per cart
flat fee (11)
$60 $60 $60 $75
Locking bin charge, per mo. for wk
collection
$25 $25 $25 $25
Enclosure clean up, per event $20 $20 $20 $20
Cart cleaning, per container $25 $25 $25 $25
Bin cleaning, per container $25 $25 $25 $25
Overfilled cart, per event $10 $10 $25 $25
Overfilled bin, per event $20 $20 $25 $25
Cart customer extra recycling, per 90 gal.
container per mo. (12)
$5 $5 $11 $25
Bin customer extra recycling, per CY per
mo. (12)
$20 $20 $20 $20
Green waste collection (in Zone 2b)NS
Resume/Reactivation Fee per event $25 $25 $25 $25
Late Fee per mo.$3 $3 $3 $3
Exhibit D-2
Page 2 of 4
Service Description Zone 1 Zone 2a Zone 2b Zone 3
Interest on Unpaid Late Balance, % or
min./mo.
1.5% or
$3/mo.
1.5% or
$3/mo.
1.5% or
$3/mo.
1.5% or
$3/mo.
Elevation surcharge above 4,000 foot
elevation (13)
up to 40%
surcharge
Off-road surcharge (14)up to 15%
Surcharge
Legend:
wk. = week; mo. = month; gal. = gallon; CY = cubic yard;
N/A = blacked out; min. = minimum payment;
NS = Not submitted (Contractor may negotiate price directly with Customer)
Notes for Special Services:
(1) "Additional Container Pickup" charge is allowed when the Customer requires the
CONTRACTOR to empty containers above and beyond the number of containers that the
Customer subscribes to. CONTRACTORS may not charge the same rate (as the first
container) to empty additional containers if they are already on site at the service location
(home or business location).
2) "Late Set Out Pickup" charge is allowed when the Customer requires the CONTRACTOR to
return to the service location to empty a container on same day as regular service due to late
set out of the container by the Customer, if hauler is still in the area.
(3) "Extra Day Pickup" charge is allowed when the Customer requires the CONTRACTOR to
empty the container on a different day other than the regular service day.
(4) "Side yard charge" is allowed when the Customer requires the driver to empty a container
that is more than 10 feet from where the collection vehicle has access to the service location
(such as a curb or enclosure at the home or business).
(5) Charges for key, enclosure, gate, long walk, and drive-in service charges are not
cumulative pickup charges. The CONTRACTOR’s rates for a Customer requiring one or more
of the five special services will be a maximum rate (as specified in the table) per pickup for any
combination of the following five service categories.
(6)" Key or code charge" is allowed when the Customer requires the driver to carry a key and
unlock a lock to empty the container. Key or code charges do not apply if a Customer's lock is
left in the unlocked position.
(7) "Enclosure charge" is allowed when the Customer requires that the driver remove a
container from an enclosure for to empty it and replace it when emptied.
(8) "Gate service charge" is allowed when the Customer requires the driver to open a closed
or locked gate in order to empty a container.
(9) "Drive-in charge" is allowed when the Customer requires the CONTRACTOR to drive up
long driveways (in excess of 40 feet up to 0.25 mile) to empty a container. Over 0.25 mile
negotiated between customer and hauler.
Exhibit D-2
Page 3 of 4
(10) "Cart or bin switch" charges are allowed when a Customer requests a change in the size
of a cart or bin more than once per year per container. All Customers may switch the size of
any cart or bin once per year without charge.
(11) "Replacement of damaged" a charge is allowed when a Customer requires the
replacement of a cart that was accidentally damaged by Customer or due to Customer
negligence. The replacement charge shall be at a flat rate for a cart of any size (30, 60 or 90
gallons) due to Customer negligence. CONTRACTOR shall replace any cart which is stolen or
becomes unusable by reason of normal wear and tear or damage by Collection operations at
no charge for the replacement during any twelve (12)-month period.
(12) All Bin Customers are eligible for recycling collection services equal to the amount of solid
waste collection services that they subscribe to at no extra charge. All Cart Customers are
eligible for up to 90 gallons of recycling collection service at no extra charge regardless of their
level of solid waste collection service (30, 60 or 90 gallons). CONTRACTOR may charge for
recycling collection services in excess of the equivalent amount of solid waste collection
services that a customer subscribes to (e.g., if the customer subscribes to 1 CY of solid waste
collection and would like 2 CY of recycling collection, the Customer would receive 1 CY yard
of recycling collection at no extra charge and the CONTRACTOR may charge for 1 CY of
recycling collection).
(13) Elevation Surcharge for Customers above 4,000 foot elevation.
(14) Off road surcharge for Customers on roads that are not improved, roads that are not
maintained (such as dirt, gravel and/or paved, non-County roads), and/or easement roads.
(15) Haulers are required to pay all fees and Surcharges. Existing fees and Surcharges
include:
a. AB 939 Service Fee equal to three percent (3%) of Rate Revenues for the first and
second year and an AB 939 Service Fee equal to four percent (4%) of Rate Revenues
for the third and all subsequent years of the Extension Term.
b.Hauler shall pay the COUNTY Solid Waste Surcharges, for Solid W aste generated in
the COUNTY, which as of the date of execution of this Agreement are currently in the
following amounts:
x Southeast Regional (SER) Surcharge. Three Dollars and Fifty Cents
($3.50) per-ton closure/post-closure maintenance fee for Solid Waste
generated and collected within the Southeast Regional Solid Waste
Commission Area as identified in Fresno County Ordinance Code Section
8.20.035; and
x Solid Waste Management Program Activities (SWMPA) Surcharge.Three
Dollars and Forty-One Cents ($3.41) per-ton surcharge for Solid Waste
management program activities (NOTE: this surcharge is incorporated into
American Avenue Landfill tipping fee).
As provided in Section 7.2.C, each rate will be adjusted annually by 75 percent (75%) of the
CPI for Cart Rates, 65 percent (65%) of the CPI for Bin Rates and 65 percent (65%) of the CPI
for all other Special Service rates.
Exhibit D-2
Page 4 of 4
(;+,%,7'
6&+('8/(2)0$;,080&20081,7<&/($1835$7(6
2QFH3HU<HDU'URS2II
6HUYLFH5DWH$UHD 0RQWKO\6SHFLDO6HUYLFH)HH
SHUPRQWKSHUFXVWRPHU
=RQH
=RQHD
=RQHE
=RQH
21&$//5(17$%,15$7(6
5HQWD%LQ6L]H &RVWSHU3LFNXS
FXELF\DUG
FXELF\DUG
FXELF\DUG
FXELF\DUG
FXELF\DUG
1RWHVIRU&RPPXQLW\&OHDQXSV
7KLV6FKHGXOHSURYLGHVWKHPD[LPXPUDWHVWKDW&RQWUDFWRUPD\FKDUJHPRQWKO\
IRUDQQXDOFRPPXQLW\GURSRIIHYHQWVIRUDOOUHVLGHQWVLQ=RQHVDDQGELQ
WKHILUVWILVFDO\HDUDIWHUDOOIXQGVLQWKH&RXQW\FRXSRQSURJUDPDUHH[KDXVWHG
IURPWKH$PHULFDQ$YHQXH7UXVW)XQGDFFRXQWDVUHIHUHQFHGLQ([KLELW$
7KLV6FKHGXOHLQFOXGHVDQRQFDOOEXON\LWHPUDWHIRUUHVLGHQWVLQ=RQHDV
&2175$&725GRHVQRWSURYLGHGURSRIIHYHQWVLQWKDWDUHD
&2175$&725DQGDQ\RQHRUPRUHRILWV&XVWRPHUVPD\DJUHHWRDQ\
UHDVRQDEOHFKDUJHIRUDGGLWLRQDOPDWHULDOVEH\RQGWKHPD[LPXPDPRXQWRI
PDWHULDOVWKDWHDFK&DUW &XVWRPHUPD\SODFHIRU&ROOHFWLRQIRUHDFK\HDUZKLFK
LVWZR FXELF\DUGVDQGRQH %XON\,WHPZKLFKPD\EHD)UHRQFRQWDLQLQJ
DSSOLDQFH
([KLELW'
3DJHRI
(;+,%,7'
6&+('8/(2)0$;,080&20081,7<&/($1835$7(6
1RWHVIRU&RPPXQLW\&OHDQXSV &RQW¶G
+DXOHUVDUHUHTXLUHGWRSD\DOOIHHVDQG6XUFKDUJHV ([LVWLQJIHHVDQG
6XUFKDUJHVLQFOXGH
D $% 6HUYLFH)HHHTXDOWRWKUHHSHUFHQW RI5DWH5HYHQXHVIRUWKH
ILUVWDQGVHFRQG\HDUDQGDQ$% 6HUYLFH)HHHTXDOWRIRXUSHUFHQW
RI5DWH5HYHQXHVIRUWKH WKLUGDQGDOOVXEVHTXHQW\HDUVRIWKH([WHQVLRQ
7HUP
E +DXOHUVKDOOSD\WKH&2817<6ROLG:DVWH6XUFKDUJHVIRU6ROLG:DVWH
JHQHUDWHGLQWKH&2817<ZKLFKDVRIWKHGDWHRIH[HFXWLRQRIWKLV
$JUHHPHQWDUHFXUUHQWO\LQWKHIROORZLQJDPRXQWV
x 6RXWKHDVW5HJLRQDO 6(5 6XUFKDUJH 7KUHH'ROODUVDQG)LIW\&HQWV
SHUWRQFORVXUHSRVWFORVXUHPDLQWHQDQFHIHHIRU6ROLG:DVWH
JHQHUDWHGDQGFROOHFWHGZLWKLQWKH6RXWKHDVW5HJLRQDO6ROLG:DVWH
&RPPLVVLRQ$UHDDVLGHQWLILHGLQ)UHVQR&RXQW\2UGLQDQFH&RGH
6HFWLRQ DQG
x 6ROLG:DVWH0DQDJHPHQW3URJUDP$FWLYLWLHV 6:03$
6XUFKDUJH 7KUHH'ROODUVDQG)RUW\2QH&HQWV SHUWRQ
VXUFKDUJHIRU6ROLG:DVWHPDQDJHPHQWSURJUDPDFWLYLWLHV 127(
WKLVVXUFKDUJHLVLQFRUSRUDWHGLQWR$PHULFDQ$YHQXH/DQGILOOWLSSLQJ
IHH
$VSURYLGHGLQ6HFWLRQ&HDFK&RPPXQLW\&OHDQXS)HHZLOOEHDGMXVWHG
DQQXDOO\E\SHUFHQW RIWKH&3,DSSOLHGWRWKHDERYHUDWHVEHJLQQLQJ
WKHVHFRQG\HDUDIWHUWKH&RXQW\FRXSRQSURJUDPLVH[KDXVWHG
([KLELW'
3DJHRI
(;+,%,7 (
/,48,'$7(''$0$*(6
,QWKHHYHQWWKDW&2175$&725IDLOVWRSHUIRUPIXOO\DQ\RI&2175$&725
V
REOLJDWLRQVXQGHUWKLV$JUHHPHQW RWKHUWKDQ(YHQWVRI'HIDXOWVWLSXODWHGLQ
$UWLFOH WKH&2175$&725VKDOOEHLQEUHDFK (YHQWRI%UHDFK RIWKLV
$JUHHPHQW8SRQGHOLYHU\RIZULWWHQQRWLFHWR&2175$&725DQGDVSURYLGHGLQ
$UWLFOHWKH&2817<PD\LPSRVHWKHIROORZLQJ/LTXLGDWHG'DPDJHVXSRQ
&2175$&725LQDGGLWLRQWRDQ\RWKHUDYDLODEOHUHPHGLHV&2817<PD\KDYH
&2175$&725VKDOOLQFOXGHWKH/LTXLGDWHG'DPDJHVGXHWR&2817<LQWKH
4XDUWHUO\5HPLWWDQFHWRWKH&2817<
([FHVVLYH&RPSODLQWV²:KHQ&2175$&725 RU&2817<
5HSUHVHQWDWLYHWKURXJKWKH&2175$&725¶V&XVWRPHUORJV UHFHLYHV
FRPSODLQWVIURPPRUHWKDQILYHSHUFHQW RILWV&XVWRPHUEDVHZLWKLQ D
VL[ PRQWKSHULRG&2175$&725ZLOOEHDVVHVVHGWZHQW\ILYHGROODUV
HDFKWZHQW\IRXU KRXUVXQWLOHDFKFRPSODLQWLVDGGUHVVHG
³&RPSODLQWV´VKDOOPHDQVXEVWDQWLYHDQGFUHGLEOH&XVWRPHUQRWLILFDWLRQV
WRWKHKDXOHURUWR&2817<5HSUHVHQWDWLYHRIPLVVHGSLFNXSVSURSHUW\
GDPDJHPLVVHGFRPPLWPHQWVHPSOR\HHPLVFRQGXFWRUSRRUTXDOLW\RI
VHUYLFH HJOLWWHURQSURSHUW\RUSXEOLFULJKWRIZD\RUPLVSODFHPHQWRI
&RQWDLQHUV 0XOWLSOHFRPSODLQWVE\RQH&XVWRPHUZLOOFRXQWRQO\DVRQH
FRPSODLQWIRUWKHSXUSRVHVRIWKLVSURYLVLRQ7KHVL[ PRQWKSHULRG
ZLOOFRPPHQFHRQJanuary 1, and July 1, respectively,RIHDFK\HDU
7KHWHUP³DGGUHVVHG´ZLOOEHEDVHGRQ&2817<5HSUHVHQWDWLYH¶V
GHWHUPLQDWLRQZKHWKHU&XVWRPHU¶V FRPSODLQWKDVEHHQUHVROYHG
([KLELW(
3DJHRI
6XEPLWWDORI)HHVDQG)LOLQJ5HTXLUHG5HSRUWV²7KH$% 6HUYLFH)HH
ZLOOEHUHPLWWHGWR&2817<DQGLQFOXGHGZLWK&2175$&725¶VTXDUWHUO\
UHSRUWZKLFKZLOOEHGXHIRUW\ILYH GD\VDIWHUWKHHQGRIWKHUHVSHFWLYH
TXDUWHU,ISD\PHQWLVQRWPDGHDWWKDWWLPHDOHWWHUZLOOEHVHQWWR
&2175$&725UHTXHVWLQJSD\PHQWZLWKLQILIWHHQ EXVLQHVVGD\V,I
WKH$% 6HUYLFH)HHLVQRWUHPLWWHGWR&2817<DWWKDWWLPHDRQH
WLPHWHQSHUFHQW ODWHSHQDOW\IHHZLOOEHDVVHVVHG
&XVWRPHU&KDUJHV²,I&2175$&725RYHUFKDUJHVD&XVWRPHUWKH
DSSURYHG5DWHWKHQWKHFKDUJHDSSOLHGWR&2175$&725ZLOOEHWZHQW\
ILYHGROODUV SHURFFXUUHQFHZKHUHWKHQXPEHURI&XVWRPHUV
RYHUFKDUJHGLQWKDWVLQJOH&XVWRPHUELOOLQJSHULRGLVOHVVWKDQWZHQW\ILYH
DQGILIW\GROODUV SHURFFXUUHQFHZKHUHWKHQXPEHURI
&XVWRPHUVRYHUFKDUJHGLVWZHQW\ILYH RUPRUH
3URYLVLRQRI5HFRUGV²,I&2175$&725IDLOVWRSURYLGHUHFRUGVWR&2817<ZLWKLQWZR
ZHHNVRIUHFHLSWRIZULWWHQQRWLFHWKHFKDUJHZLOOEHILYH KXQGUHGGROODUV
,I&2175$&725IDLOVWRVXEPLWWKHUHTXHVWHGUHFRUGVDIWHUWKHVSHFLILHGSHULRGWKHQ
WKH&2175$&725ZLOOEHDVVHVVHGILIW\GROODUV HDFKWZHQW\IRXU KRXUV
XQWLOWKHUHTXHVWHGUHFRUGVDUHVXEPLWWHG
([KLELW(
3DJHRI
(;+,%,7)
48$57(5/<5(0,77$1&((;$03/($1'5(9(18(5(3257,1*
)250
4XDUWHUO\5HPLWWDQFH([DPSOHSXUVXDQWWR$UWLFOH(DQGIRULOOXVWUDWLYH
SXUSRVHVRQO\
5DWH5HYHQXHVIRUWKHTXDUWHUHTXDOVZKLFK LV
WKH VXPRI IURPFXUUHQWTXDUWHUO\ELOOLQJVDQG
IURPSDVWGXHDFFRXQWV
$% 6HUYLFH)HH [5DWH5HYHQXHV $FWXDOO\FROOHFWHG
IRUHDFKPRQWKRIWKHSUHFHGLQJ TXDUWHU
;
/LTXLGDWHG'DPDJHVGXHIRUWKHTXDUWHUDUH
&2817< 6ROLG:DVWHVXUFKDUJHVGXHIRUWKHTXDUWHUDUH
WRQVDWSHUWRQDQGWRQVDWSHUWRQIRU6ROLG
:DVWHJHQHUDWHGDQG&ROOHFWHGLQWKH&RXQW\DQG'LVSRVHGLQD
IDFLOLW\RXWVLGHRIWKH&RXQW\
4XDUWHUO\ 5HPLWWDQFH
4XDUWHUO\5HYHQXHDQG)HH5HSRUWLQJ)RUPIRU)UHVQR&RXQW\
(DFKTXDUWHUSURYLGHWKHIROORZLQJLQIRUPDWLRQRQWKH&2817<¶V
SURYLGHGLQYRLFHIRUPDORQJZLWKDOOUHOHYDQWDQGUHTXHVWHG
VXSSRUWLQJGDWDDQGTXDUWHUO\UHPLWWDQFHE\HDFKTXDUWHU¶VGXHGDWH
7KHTXDUWHUO\UHPLWWDQFHLVGXHWRWKH&2817<E\WKHWK GD\
IROORZLQJWKHHQGRIWKHSUHFHGLQJTXDUWHU
0RQWK RI
4XDUWHU 7RQV 5DWH
6ROLG
:DVWH
)HH
6(5
7RQV
6(5
5DWH
6(5
)HH
0RQWK
0RQWK
0RQWK
4XDUWHU7RWDO
([KLELW)
(;+,%,7*
&3,$'-8670(17
3XUVXDQWWR$UWLFOH&DQGIRULOOXVWUDWLYHSXUSRVHVRQO\
1HZ5DWH FXUUHQW5DWH[> > FXUUHQW&3OPRQWKSUHYLRXV&3O @
[&3,DGMXVWPHQWIDFWRU @
([DPSOH
%DVHGRQIROORZLQJLQIRUPDWLRQ
&XUUHQW&3,LV
PRQWKSUHYLRXV&3,LV
RU&3,DGMXVWPHQW
IDFWRUIRU%LQVRU&3,
DGMXVWPHQWIDFWRUIRU&DUWV
FXUUHQW%LQ5DWHSHUPRQWK
FXUUHQW&DUW5DWHSHUPRQWK
6WHS
&XUUHQW &3, PRQWKSUHYLRXV &3O &KDQJH LQ
&3,
6WHS
&3, DGMXVWPHQW IDFWRU IRU%LQV [ &KDQJH LQ&3, 5DWH
DGMXVWPHQW DPRXQW
&3,DGMXVWPHQW IDFWRUIRU&DUWV [ &KDQJHLQ&3, 5DWH
DGMXVWPHQWDPRXQW
6WHS
5DWHDGMXVWPHQWDPRXQW [ FXUUHQW%LQ 5DWHSHUPRQWK
QHZ5DWH 5DWHDGMXVWPHQWDPRXQW [ FXUUHQW
&DUW5DWHSHUPRQWK QHZ5DWH
([KLELW*
(;+,%,7+
$'-8670(172)',6326$/7,33,1*)((
3XUVXDQWWR$UWLFOH(DQGIRU,OOXVWUDWLYHSXUSRVHVRQO\
7LSSLQJIHHFRPSRQHQWVKDOOEHFDOFXODWHGDVIROORZV
$GMXVWHG'LVSRVDO7LSSLQJ)HH&RPSRQHQWHTXDOV
&XUUHQW'LVSRVDO7LSSLQJ)HH&RPSRQHQW ;> 1HZ'LVSRVDO7LSSLQJ)HH2OG
'LVSRVDO7LSSLQJ)HH $% 6HUYLFH)HH3HUFHQWDJH @
&DOFXODWLRQSHUIRUPHGLQIROORZLQJVWHSV
6WHS 7LSSLQJIHHDGMXVWPHQW
7LSSLQJIHHDGMXVWPHQW 1HZ'LVSRVDOWLSSLQJIHH2OG'LVSRVDOWLSSLQJIHH
6WHS $% 6HUYLFH)HHDGMXVWPHQWLVFDOFXODWHGE\VXEWUDFWLQJWKH$%
6HUYLFH)HHSHUFHQWDJHIURP
$% 6HUYLFH)HHDGMXVWPHQW $% 6HUYLFH)HHSHUFHQWDJH
6WHS 7RWDOWLSSLQJIHHDGMXVWPHQWLVFDOFXODWHGE\GLYLGLQJWLSSLQJIHH
DGMXVWPHQWE\WKH$% 6HUYLFH)HHDGMXVWPHQW
7RWDOWLSSLQJIHHDGMXVWPHQW WLSSLQJIHHDGMXVWPHQW VWHS $%
6HUYLFH)HHDGMXVWPHQW VWHS
6WHS $GMXVWHG'LVSRVDO7LSSLQJIHH&RPSRQHQWLVFDOFXODWHGE\PXOWLSO\LQJ
WKHFXUUHQW'LVSRVDO7LSSLQJ)HH&RPSRQHQWE\WKHWRWDOWLSSLQJIHHDGMXVWPHQW
$GMXVWHG'LVSRVDO7LSSLQJ)HH&RPSRQHQW FXUUHQW'LVSRVDO7LSSLQJ)HH
&RPSRQHQW[7RWDO7LSSLQJ)HHDGMXVWPHQW VWHS
7KHIROORZLQJVDPSOHFDOFXODWLRQLVEDVHGRQWKHLQIRUPDWLRQOLVWHGEHORZ
7KH5DWHIRU %LQ6HUYLFHWKUHH FXELF\DUGVFROOHFWHG RQFHSHUPRQWKLV
SHU PRQWK
7KHFXUUHQWWLSSLQJIHHFRPSRQHQWIRUWKLV5DWHLV
7KH&2817<6ROLG:DVWHGLVSRVDOWLSSLQJIHH LQFUHDVHVIURPWR
SHUWRQ
7KH$% 6HUYLFH)HH LVRI5DWH5HYHQXHV FROOHFWHGTXDUWHUO\DQG
UHPLWWHGIRUWKHSUHFHGLQJTXDUWHU
([KLELW+
3DJHRI
(;+,%,7+ &217,18('
$'-8670(172)',6326$/7,33,1*)((
$GMXVWHG'LVSRVDO7LSSLQJ)HH &RPSRQHQWLVFDOFXODWHGXVLQJWKH IROORZLQJ
VWHSV
6WHS
1HZ'LVSRVDO 7LSSLQJ)HH 2OG'LVSRVDO7LSSLQJ)HH
6WHS
$% 6HUYLFH)HH3HUFHQWDJH
6WHS
WLSSLQJIHHDGMXVWPHQW $6 6HUYLFH )HHDGMXVWPHQW
6WHS
FXUUHQW'LVSRVDO7LSSLQJ)HH&RPSRQHQW [ WRWDOWLSSLQJIHH
DGMXVWPHQW
7KLVFDOFXODWLRQH[SUHVVHGDVDPDWKHPDWLFDOHTXDWLRQLVDVIROORZV
> [> @ @
([KLELW+
3DJHRI
(;+,%,7 ,
&$/&8/$7,21)256(5)((&20321(172)5$7(6
6DPSOHRI&DUW&DOFXODWLRQ0HWKRGRORJ\
'LYLGH6(5)HHE\SRXQGVSHUWRQ SHUWRQ SRXQGVSHUWRQ SHU
SRXQG
1XPEHURIZHHNVSHUPRQWK
0XOWLSO\QXPEHURIJDOORQVWLPHV SRXQGVRIVROLGZDVWHSHUJDOORQWLPHVQXPEHURI
ZHHNVSHUPRQWK JDOORQV[ [ SRXQGVRIVROLGZDVWHSHU
PRQWK
0XOWLSO\SRXQGVRIVROLGZDVWHSHUPRQWKWLPHV6(5GROODUVSHUSRXQGWRGHWHUPLQH6(5SHU
PRQWKFRPSRQHQWRIRYHUDOO5DWH SRXQGV[SHUSRXQG 6(5
FRPSRQHQWRI5DWHSHUPRQWKIRUJDOORQV
'RVLPLODUFDOFXODWLRQVIRURWKHU&DUWVL]HV
6DPSOHRI%LQ&DOFXODWLRQ0HWKRGRORJ\
'LYLGH6(5)HHE\SRXQGVSHUWRQ SHUWRQ SRXQGVSHUWRQ SHU
SRXQG
1XPEHURIZHHNVSHUPRQWK
0XOWLSO\QXPEHURIFXELF\DUGVWLPHVSRXQGVRIVROLGZDVWHSHUFXELF\DUGWLPHVQXPEHURI
ZHHNVSHUPRQWK
FXELF\DUGV[[ SRXQGVRIVROLGZDVWHSHUPRQWK
0XOWLSO\SRXQGVRIVROLGZDVWHSHUPRQWKWLPHV6(5GROODUVSHUSRXQGWRGHWHUPLQH6(5SHU
PRQWKFRPSRQHQWRIRYHUDOO5DWH SRXQGV[SHUSRXQG 6(5FRPSRQHQWRI
5DWHSHUPRQWKIRUFXELF\DUGV
'RVLPLODUFDOFXODWLRQVIRURWKHU%LQ&DUWVL]HV
1RWH 7KHQXPEHUVLQWKHFKDUWVEHORZPD\YDU\VOLJKWO\GHSHQGLQJRQWKHQXPEHURIVLJQLILFDQWGLJLWVXVHG
LQFDOFXODWLRQV
9ROXPHWR:HLJKW&RQYHUVLRQ)DFWRUV
SRXQGVRIVROLGZDVWHSHUFXELF\DUG
JDOORQVSHUFXELF\DUG
SRXQGVRIVROLGZDVWHSHUJDOORQ
&DUWV
GROODUV SHUWRQ
GROODUV SHUSRXQG
&DOFXODWLRQ
*DOORQV
3RXQGVRIVROLGZDVWHSHUPRQWK
'LVSRVDO IHHSRUWLRQRIUDWHPRQWK
([KLELW,
3DJHRI
(;+,%,7, &217,18('
&$/&8/$7,21)256(5)((&20321(172)5$7(6
%LQV
&DOFXODWLRQ
&XELF\DUGV[SHUZHHN
3RXQGVRIVROLGZDVWHSHU
PRQWK
'LVSRVDOIHHSRUWLRQRIUDWH
&XELF\DUGV[SHUZHHN
3RXQGVRIVROLGZDVWHSHU
PRQWK
'LVSRVDOIHHSRUWLRQRIUDWH
&XELF\DUGV[SHUZHHN
3RXQGVRIVROLGZDVWHSHU
PRQWK
'LVSRVDOIHHSRUWLRQRIUDWH
&XELF\DUGV[SHU
ZHHN
3RXQGVRIVROLGZDVWHSHU
PRQWK
'LVSRVDOIHHSRUWLRQRIUDWH
&XELF\DUGV[SHUZHHN
3RXQGVRIVROLGZDVWHSHU
PRQWK
'LVSRVDOIHHSRUWLRQRIUDWH
&XELF\DUGV[SHUZHHN
3RXQGVRIVROLGZDVWHSHU
PRQWK
'LVSRVDOIHHSRUWLRQRI
UDWH
([KLELW,
3DJHRI
(;+,%,7 -
$%5(32576
5HSRUWLQJIRUWKH$QQXDO(OHFWURQLF5HSRUW ($5
)UHVQR&RXQW\$%0DQGDWRU\&RPPHUFLDO5HF\FOLQJ 0&5
(DFK\HDUSURYLGHWKHIROORZLQJ$%0RQLWRULQJ'DWDIRUWKH(OHFWURQLF$QQXDO5HSRUW
($5
%XVLQHVVHV
7RWDO1XPEHU6XEMHFWWR$%
7RWDO1XPEHU1RW5HF\FOLQJ
:KDWIROORZXSGLGWKH&2817<GRDQQXDOO\IRUWKRVH
QRWUHF\FOLQJ"
0XOWLIDPLO\
7RWDO1XPEHU6XEMHFWWR$%
7RWDO1XPEHU1RW 5HF\FOLQJ
:KDWIROORZXSGLGWKH&2817<GRDQQXDOO\IRUWKRVH
QRWUHF\FOLQJ"
(DFK\HDUSURYLGHWKHIROORZLQJWR&2817<VWDIIHLWKHU
HOHFWURQLFDOO\RUKDUGFRS\
$OLVWRIEXVLQHVVHVDQGPXOWLIDPLO\GZHOOLQJVZLWKDPRXQWRIZDVWHJHQHUDWHG>E\
ELQFDUWVL]HFROOHFWLRQIUHTXHQF\@DQGWKRVH127UHF\FOLQJ
(GXFDWLRQDQG2XWUHDFKSURYLGHGE\&2817<DQGSURYLGHGE\HDFKKDXOHU
x 8SGDWHRQZHEVLWHVDQGRWKHUHOHFWURQLFPHGLD
x &RSLHVRISULQWPDWHULDOPDLOHGGLVWULEXWHGLQFOXGLQJOHWWHUVIO\HUVHWF
x 3ODFHDQGGDWHRIGLUHFWFRQWDFWDFWLYLW\VXFKDVVLWHYLVLWVSUHVHQWDWLRQVHYHQWVHWF
0RQLWRULQJDFWLYLWLHVSURYLGHGE\&2817<DQGSURYLGHGE\HDFKKDXOHU
x :KDWZDVGRQHWRLQIRUPWKRVHQRWUHF\FOLQJDERXWWKHODZDQGKRZWRUHF\FOH",IWKH
MXULVGLFWLRQKDVDQHQIRUFHPHQWSURJUDPIRUWKH0DQGDWRU\&RPPHUFLDO5HF\FOLQJ
SURJUDPWKHQSOHDVHSURYLGHLQIRUPDWLRQDERXWZKDWHQIRUFHPHQWZDVFRQGXFWHG
x ,IDSSOLFDEOHSOHDVHGHVFULEHDQ\FKDOOHQJHVHQFRXQWHUHGLQLPSOHPHQWLQJPRQLWRULQJ
UHODWHGWRWKHMXULVGLFWLRQ¶VFRPPHUFLDOUHF\FOLQJSURJUDP,IQRWDSSOLFDEOHHQWHU1$
x 3URYLGHWKHDPRXQWRIRUJDQLFPDWHULDOWKDWLVEHLQJGLYHUWHG E\FRYHUHG
EXVLQHVVHVPXOWLIDPLO\FRPSOH[HV,IWKLVWRQQDJHLQIRUPDWLRQLVQRWDYDLODEOHH[SODLQ
ZK\
2WKHU0RQLWRULQJ$FWLYLWLHV
x $XGLWV
x :DVWHDVVHVVPHQWV
x 7DJJLQJ RIWDJVDQGRXWFRPH
x 2WKHU
(QIRUFHPHQWDFWLYLWLHVSURYLGHGE\&2817<
([KLELW-
(;+,%,7.
$%5(32576
$%0DQGDWRU\&RPPHUFLDO2UJDQLFV5HF\FOLQJ 025H
(DFK\HDUSURYLGHWKHIROORZLQJ$% 0RQLWRULQJ'DWDIRUWKH(OHFWURQLF$QQXDO
5HSRUW ($5
%XVLQHVVHV
7RWDO1XPEHU6XEMHFWWR$%
7RWDO1XPEHU1RW5HF\FOLQJ2UJDQLFV
:KDWIROORZXSGLGWKH&2817<GRDQQXDOO\IRU
WKRVHQRWUHF\FOLQJRUJDQLFV"
0XOWLIDPLO\
7RWDO1XPEHU6XEMHFWWR$% LIWKH\KDYH
*reen Waste, landscaping pruning, non-hazardous
wood waste)
7RWDO1XPEHU1RW 5HF\FOLQJ2UJDQLFV
* A jurisdiction may also implement food waste collection
(DFK\HDUSURYLGHWKHIROORZLQJWR&2817<VWDIIHLWKHU
HOHFWURQLFDOO\RUKDUGFRS\
$OLVWRIEXVLQHVVHVDQGPXOWLIDPLO\GZHOOLQJVZLWKDPRXQWRIZDVWH
JHQHUDWHG>E\ELQFDUWVL]HFROOHFWLRQIUHTXHQF\@DQGWKRVH127UHF\FOLQJ
RUJDQLFV
(GXFDWLRQDQG2XWUHDFKSURYLGHGE\&2817<DQGSURYLGHGE\HDFKKDXOHU
x 8SGDWHRQZHEVLWHVDQGRWKHUHOHFWURQLFPHGLD
x &RSLHVRISULQWPDWHULDOPDLOHGGLVWULEXWHGLQFOXGLQJOHWWHUVIO\HUVHWF
x 3ODFHDQGGDWHRIGLUHFWFRQWDFWDFWLYLW\VXFKDVVLWHYLVLWVSUHVHQWDWLRQV
HYHQWVHWF
0RQLWRULQJDFWLYLWLHVSURYLGHGE\&2817<DQGSURYLGHGE\HDFKKDXOHU
x :KDWZDVGRQH WRLQIRUPWKRVHQRWUHF\FOLQJDERXWWKHODZDQGKRZWR
UHF\FOH",IWKHMXULVGLFWLRQKDVDQHQIRUFHPHQWSURJUDPIRUWKH0DQGDWRU\
&RPPHUFLDO2UJDQLFV5HF\FOLQJSURJUDPWKHQSOHDVHSURYLGHLQIRUPDWLRQ
DERXWZKDWHQIRUFHPHQWZDVFRQGXFWHG
x ,IDSSOLFDEOHSOHDVHGHVFULEHDQ\FKDOOHQJHVHQFRXQWHUHGLQLPSOHPHQWLQJ
PRQLWRULQJUHODWHGWRWKHMXULVGLFWLRQ¶VFRPPHUFLDORUJDQLFVUHF\FOLQJ
SURJUDP,IQRWDSSOLFDEOHHQWHU1$
x ,IDYDLODEOHSURYLGHWKHDPRXQWRIRUJDQLFPDWHULDOWKDWLVEHLQJGLYHUWHGE\
FRYHUHGEXVLQHVVHVPXOWLIDPLO\FRPSOH[HV BBBBB7RQV
2WKHU0RQLWRULQJ$FWLYLWLHV
x $XGLWV
x :DVWHDVVHVVPHQWV
x 7DJJLQJ RIWDJVDQGRXWFRPH
x 2WKHU
(QIRUFHPHQWDFWLYLWLHVSURYLGHGE\&2817<
([KLELW.