HomeMy WebLinkAboutReso 138-05 DiscardMaterials Non Exclusive
RESOLUTION NO. 138 ~ 05
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
* . * * * * * * *
APPROVING A FORM OF THE DISCARD MATERIAL
NON-EXCLUSIVE COLLECTION FRANCHISE AGREEMENT
WHEREAS, the Legislature of the State of California, by enactment of the California Integrated
Waste Management Act of 1989 ("Act") and subsequent additions and amendments (codified at California
Public Resources Code Section 40000 et seq.), has declared that it is in the public interest to authorize and
require local agencies to make adequate provisions for Solid Waste Collection within their jurisdiction;
and,
WHEREAS, the CITY has determined that the public health, safety and welfare require that non-
exclusive franchises be awarded to qualified companies for the collection, transport, recycling and disposal
of Discard Materials in the CITY; and
WHEREAS, the City has a franchise hauler with the exclusive rights to perform Collection Services
and such exclusive franchise does not include the collection and transportation of materials defined herein
as Discard Materials; and
WHEREAS, AB 939 requires the CITY to meet a fifty percent (50%) diversion rate; and
WHEREAS, the CITY has determined that to meet the fifty percent (5COIa) diversion requirement it
must regulate Discard Material collection service, and it has (introduced) an Ordinance to facilitate that
regulation; and
WHEREAS, the Legislature has found and declared in Section 495 I 0 of the Public Resources
Code that it is in the public interest to foster and encourage solid waste enterprise so that, at all times,
there will continue to be competent enterprises willing and financially able to furnish needed solid waste
handling service; and
WHEREAS, one of the purposes of this Agreement is to regulate such franchises in order to ensure
the orderly collection, recycling, and disposal of Discard Materials in the CITY and to minimize the
potential for adverse effects it may have on the local environment; and
WHEREAS, the CITY requires all haulers providing Discard Material collection service in the
CITY to obtain a non-exclusive franchise in order to regulate this business, ensure its orderly operation and
to minimize the potential for adverse effects it may have on the local environment; and
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does
approve the form of the Discard Material Non-Exclusive Collection Franchise Agreement attached hereto
as EXHmIT A; and
BE IT FURTHER RESOLVED that the City Manager is hereby authorized to execute such
agreements in substantially the form attached hereto as EXHmIT A, with qualitying companies that meet
the requirements established by the Franchise Agreement and Chapter 5.32 of the Dublin Municipal Code,
as amended by Ordinance.
PASSED, APPROVED AND ADOPTED this 21st day of June, 2005.
AYES: Councilmembers Hildenbrand, McCormick, Oravetz, Zika and Mayor Lockhart
NOES: None
ABSENT: None
ABSTAIN: None
ATTEST:
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K'/G/6.21-ú5/reso 138-ú5 Construction Waste (Item 6.8)
City of Dublin
Discard Material Non-Exclusive Collection Franchise
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Issued by
City of Dublin
100 Civic Plaza
Dublin, CA 94568
June 22, 2005
EXHIBIT A
Discard Material Non-Exclusive Collection Franchise Aareement
Section 1.
Section 2.
Section 3.
Section 4.
Section 5.
Section 6.
Section 7.
Section 8.
Section 9.
Section 10.
Section 11.
Section 12.
Section 13.
Section 14.
Section 15.
Section 16.
Section 17.
Section 18.
Section 19.
Section 20.
Section 21.
Section 22.
Section 23.
Section 24.
Section 25.
Section 26.
Section 27.
Section 28.
Section 29.
Section 30.
Section 31.
TABLE OF CONTENTS
Definitions........................................................................................................... .2..
Grant of Franchise............................................................................................... 4..
Acceptance of Franchise......................................................................................4.
Term of Franchise. ...... ........ .... ...... .............. ...... .... .... .... .... ...______........ .......... .... ...4..
Conditions for Effectiveness.................................................................................4.
Limitations on Scope of Franchise. .......................................................................5
Franchise Fees.................................................................................................... 5..
Franchise Fee Payment. ...... .... ...... ........... ... ........... .................. ....... ...... ............. .5.
Ownership of Discard Material. ...........................................................__...............6.
Disposal of Discard Material.............___........ .......... ............... .......... .... .......... .._____.6.
Recycling Requirement.................................................................. ___...................6..
Reports... __............................................................................................... ............7...
Inspection Authority. ....................................................................... ___.................. B..
Insurance Requirements. .....................................................................................9.
Indemnity. .......................................... __......... __.................................................. .11
Collection Equipment. .....__.__.... ................ ....... .... ......... ........ ........ ...... ...__..... .__...1.1
Abandoned Containers...................................................................................... .1.1
FRANCHISEE Provided Discard Material Containers.........................................12
Personnel........................................................................................................ ..12
Permits and Licenses... ... ............ ....................... .......... ............ ............ ..............1.3
Liquidated Damages..........................................,.............................................. .1.3
Default, Termination................................................... ...................................... ..1.4
Conditions Upon T errnination............................................................................ ..16
Notices.............................................................................................................. .1.6.
Relationship of the Parties .............__... .... .__... .............................. ........ .... ....... ....17
Compliance with Law......................................................................................... .1.7
Governing Law.. ... ................ ... ... ...... .... ... ... .......... .... .............................. .... ...... ..il
Jurisdiction.............................................. ___....................................................... .17.
Assignment....................................................................................................... .17.
Binding on Successors ... ........ .... ...... ... .......... ..................... .... ... ......... ....... ... ......1.8
Waiver.............................................................................................................. ..1.8
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Section 32.
Section 33.
Section 34.
Section 35.
Entire Agreement.................,...,.............,.........,..................................... ,........... ..18
Interpretation.............:....................................................................................... .18
Amendment....................................................................:............................ .1... .18
Severability....................................................................................................... .19
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1 DISCARD MATERIAL NON-EXCLUSIVE COLLECTION
2 FRANCHISE AGREEMENT BETWEEN THE CITY OF DUBLIN
3 ~D
4 This Agreement is made and entered into this ~ day of , 20_. by and between the
5 CITY OF DUBLIN, a municipal corporation of the State of California, herein after referred to as
6 "CITY", and a (describe legal entity), herein after referred to as
7 "FRANCHISEE".
8 RECITALS
9 WHEREAS; the Legislature of the State of California, by enactment of the California Integrated
10 Waste Management Act of 1989 ("Act") and subsequent additions and amendments (ccdified at
11 California Public Resources Code Section 40000 et seq.), has declared that it is in the public
12 interest to authorize and require local agencies to make adequate provisions for Solid Waste
13 Collection within their jurisdiction; and,
14 WHEREAS, the CITY has determined that the public health, safety and welfare require that non-
15 exclusive franchises be awarded to qualified companies for the collection, transport, recycling
16 and disposal of Discard Materials in the CITY; and
17 WHEREAS, the City has a franchise hauler with the exclusive rights to perform Collection
18 SelVices and such exclusive franchise does not include the ccllection and transportation of
19 materials defined herein as Discard Materials; and
20 WHEREAS, AB 939 requires the CITY to meet a fifty percent (50%) diversion rate; and
21 WHEREAS, the CITY has determined that to meet the fifty percent (50%) diversion requirement it
22 must regulate Discard Material collection selVice; and
23 WHEREAS, the Legislature has found and declared in Section 49510 of the Public Resources
24 Code that it is in the public interest to foster and encourage solid waste enterprise so that, at all
25 times, there will continue to be competent enterprises willing and financially able to furnish
26 needed solid waste handling service; and
27 WHEREAS, one of the purposes of this Agreement is to regulate such franchises in order to
28 ensure the orderly collection, recycling, and disposal of Discard Materials in the CITY and to
29 minimize the potential for adverse effects it may have on the local environment; and
30 WHEREAS, the CITY requires all haulers providing Discard Material ccllection service in the
31 CITY to obtain a non-exclusive franchise in order to regulate this business, ensure its orderly
32 operation and to minimize the potential for adverse effects it may have on the local environment;
33 and
34 WHEREAS, FRANCHISEE has appiied to the CITY for a Discard Material Collection Franchise;
35 and
36 WHEREAS, the City Manager has reviewed FRANCHISEE'S application for the purpose of
37 determining whether FRANCHISEE meets the requirements for the granting of such Franchise;
38 and
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39 WHEREAS, the CITY has determined that the grant of such Franchise to FRANCHISEE is in the
40 public interest; and
41 WHEREAS, FRANCHISEE intends to the use public right of ways and infrastructure to provide
42 Discard Materiai collection service; and
43 WHEREAS, the CITY intends to receive value for the Franchise issued; and
44 WHEREAS, FRANCHISEE agrees to and acknowledges that it shall arrange for the proper
45 recycling and disposal of all Discard Material collected in the CITY and that the CITY is not
46 instructing FRANCHISEE how to collect, transport, recycle or dispose of Discard Material so long
47 as its operation is consistent with City Code and applicable laws; and
48 WHEREAS, the CITY and FRANCHISEE desire to enter into a Discard Material Non-Exclusive
49 Collection Franchise Agreement in order that FRANCHISEE may perform Discard Material
50 collection, recycling and disposal services in the CITY.
51 NOW, THEREFORE, based on the mutual promises contained herein, the parties agree as
52 follows:
53 Section 1. Definitions
54 For the purpose of this Discard Material Non-Exclusive Collection Service Agreement, hereinafter
55 referred to as "Agreement", the definitions contained in this Article shall apply unless otherwise
56 specifically stated. If a word or phrase is not defined in this Section, the definition of such word or
57 phrase as contained in Chapter 5.32 of the Dublin Municipal Code shall control. When not
58 inconsistent with the context, words used in the present tense include the future, words in the
59 plural include the singular, and words in the singular include the plural. Use of the masculine
60 gender shall include the feminine gender.
61 a. Construction and Demolition Debris ("C&D"). Used or discarded materials
62 resulting from construction, remodeling, repair or demolition operations on any pavement, house,
63 commercial building, or other structure and such other materials as may be removed during the
64 normal cleanup process of such construction, remodeling, repair, or demolition operations.
65 b. Construction and Demolition Debris Box. A detachable container of ten (1 Q) to fifty
66 (50) cubic yards used for the collection of Construction and Demolition Debris, which is designed
67 to be transported to, and left on the ground on or adjacent to, the property where the Construction
68 and Demolition Debris is generated.
69 c. Discard Material. Construction and Demolition Debris, and Governmental Material
70 and Recyclable Material, if a Governmental Service Unit elects not to have such materials
71 collected pursuant to the Exclusive Franchise.
72 d. E-Waste. Discarded electronics equipment such as cell phones, computers,
73 monitors, televisions, and other items containing cathode ray tubes (CRTs).
74 e. Exclusive Franchise. The Collection Service Agreement made and entered into by
75 and between the City of Dublin and Amador Valley Industries, Inc. on January 12, 2005 for the
76 provision of Collection Services.
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77 f. Fixed Bodv Vehicle. An end-dump traiier hauled by a tractor, a dump truck, or
78 other such vehicle where the container portion of the vehicle used to collect and transported the
79 C&D is a fixed part of the vehicle body. Fixed Body Vehicles do not include vehicles
80 manufactured to or designed to transport and deliver Construction and Demolition Debris Boxes.
81 g. Force Maieure. Acts of God including landslides, lightening, forest fires, storms,
82 floods, freezing and earthquakes. civil disturbances, labor unrest, lockouts, wars, blockades,
83 public riots, explosions, or government restraint.
84 h. Franchise Administrator. The City Manager or his designee.
85 i. Franchise Year. The fiscal period beginning on July 1st and ending on June
86 30th, except for the initial Franchise Year which begins on the effective date of the Agreement and
87 ends on the subsequent June 30th.
88 j, Garbaoe. All putrescible waste which generally includes, but is not limited to,
89 kitchen and table food waste. animal, vegetative, food or any organic waste that is attendant with,
90 or results from the storage, preparation, cooking or handling of food materials.
91 k. Governmental Material. Solid Waste, Recyclable Materials, Organic Waste, or
92 Large Items generated by a Governmental Service Unit at the service location wherein the
93 Governmental Material is collected.
94 I. Governmental Service Unit. A State, County, District or Local Agency located in
95 the Service Area.
96 m. Green Waste. Any vegetative matter resulting from normal yard and landscaping
97 maintenance including plant debris, such as Palm, Yucca and Cactus, grass clippings, leaves,
98 pruning, weeds, branches, brush, Christmas trees, and other forms of vegetative waste.
99 n. Laroe Items. Those materials including furniture; carpets; mattresses; appliances;
100 E"Waste; clothing; tires without rims; and large Green Waste.
101 o. Oroanic Waste. Green Waste, food scraps and trimmings from food preparation,
102 including but not limited to; fruit and vegetable waste, grain waste, dairy waste, meat and fish
103 waste, and such items as non-recyclable or contaminated paper such as pizza boxes, take-out
104 food cartons (cardboard), paper towels, waxed cardboard, wooden packaging such as crates and
105 untreated and unpainted wallboard, etc..
106 p, Recvclable Materials. Those materials which are capable of being recycled and
107 which would otherwise be processed or disposed of as Solid Waste that are generated by and at
108 the service unit wherein the Recyclable Materials are collected.
109 q, Rubbish, All refuse, accumulation of paper, excelsior, rags, wooden boxes and
110 containers, sweep-ups and all other accumulations of a nature other than Garbage and Organic
111 Waste.
112
113
r.
Service Area. That area within the corporate limits of the City of Dublin.
Soiid Waste. Garbage and Rubbish.
s.
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114 Section 2. Grant of Franchise
115 a. The CITY hereby grants to FRANCHISEE a Discard Material Non-Exclusive
116 Collection Franchise ("Franchise") authorizing FRANCHISEE to engage in the business of
117 collecting. recycling. and disposing of Discard Material from generators in the Service Area.
118 b. This grant is pursuant to FRANCHISEE'S application for the Franchise, which
119 application is incorporated herein by this reference.
120 Section 3. Acceptance of Franchise
121 a. FRANCHISEE hereby accepts the Franchise on the terms and conditions set forth
122 in this Agreement, City Code, and all related ordinances and resolutions. Execution of this
123 Agreement shall constitute the notification to FRANCHISEE as may be required by Public
124 Resources Code Section 49520 which may require a five (5) year notice period should the CITY
125 wish to enter into an exclusive franchise or contract for Construction and Demolition Debris
126 collection services in the future.
127 b. FRANCHSEE shall notify the CITY in writing of any Discard Material haulers
128 known to be operatin9 within the CITY without a Discard Material Non-Exclusive Collection
129 Franchise.
130 Section 4. Term of Franchise.
131 a. The term of the Franchise granted to FRANCHISEE shall commence on the date
132 first indicated above and terminate on June 30, 2012 ("the Initial Term"), uniess eartier terminated
133 pursuant to Section 22 of this Agreement
134 b. At the end of the Initial Term and at the end of each Extended Term, this
135 Agreement and the Franchise granted herein shall automatically be extended for a one (1) year
136 period ("the Extended Term") unless:
137 (1) FRANCHISEE is in materiai default under this Agreement or
138 (2) The CITY provides the FRANCHISEE with one hundred and twenty (120) days'
139 notice prior to the termination of the end of the Initial Term or the end ofthe Extended Term.
140 c. No later than one hundred and twenty (120) days prior to the end of the Initial
141 Term and each Extended Term. FRANCHISEE shall provide the CITY with updated application
142 information identifying all material changes since the submission of the initial application or the
143 last application update.
144 Section 5. Conditions for Effectiveness.
145 This Agreement shall not become effective until FRANCHISEE has satisfied each and all of the
146 conditions set forth below, each of which may be waived in whole or in part by the CITY.
147 a. Accuracy of Representations. The representation and warranties made by
148 FRANCHISEE in its Application for Franchise are true and correct on and as of the effective date.
149 b. Absence of Litigation. There is no litigation pending on the effective date in any
150 court challenging the award or execution of this Agreement or seeking to restrain or enjoin its
151 performance.
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152 c. Furnishing of Insurance. FRANCHISEE has furnished evidence of the Insurance
153 required by Section 14 of this Agreement.
154 Section 6. Limitations on Scope of Franchise.
155 a. Under the terms of this Franchise, the FRANCHISEE has the non-exclusive
156 authority to provide Discard Material collection services in the CITY.
157 Section 7. Franchise Fees.
158 a. During the term of the Franchise, FRANCHISEE shall pay to the CITY franchise
159 fees for the use of the streets and right of ways and the right to engage in the business of
160 collecting, recycling and disposing of Discard Materials kept, accumulated or generated in the
161 Service Area.
162 b. Franchise fees shall be payable on all gross revenues received for the provision of
163 Discard Material collection services from customers located within the Service Area, including,
164 without limitation, all amounts paid by each customer or its agents in respect of the materials
165 collected, such as hauling fees, equipment rental charges, management fees, logistics fees, and
166 all other amounts, however denominated and to whomever paid. The initial franchise fee shall
167 be 15.6% of such received revenue.
168 c, The CITY reserves the right to modify the amount of the franchise fees and
169 manner of payment at any time during the term of this Agreement by a resolution of the City
170 Council.
171 Section 8. Franchise Fee Payment.
172 a. Franchise fees shall be payable on a monthly basis, and shall be due and payable
173 on the fifteenth (15th) day of the month immediately following the month in which collection
174 services were provided. Each payment shall be calculated in accordance with the provisions of
175 this Agreement.
176 b. Each franchise fee payment shall be accompanied by a written statement, verified
177 by the person making the payment, or a duly authorized representative of the person, showing
178 the calculation of the franchise fee payable in such form and detail as the CITY may require and
179 such other information as the CITY may determine is material to a determination of the amount
180 due.
181 c, No statement filed under this Section shall be conclusive as to the matters set
182 forth in such statement, nor shall the filing of such statement preclude the CITY from collecting by
183 appropriate action the sum that is actuallydue and payable.
184 d. If franchise fees are not paid by the FRANCHISEE at the times required by this
185 Section, then in addition to thé franchise fees, the FRANCHISEE shall pay a late payment charge
186 as set forth in Section 21 of this Agreement.
187
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Discard Material Non-Exclusive Collection franchise Aareement
e. FRANCHISEE shall pay all required franchise fees to:
Franchise Administrator
City of Dublin
100 Civic Plaza
Dublin, CA 94568
f. If FRANCHISEE remits franchise fees by personal delivery to the CITY, such
franchise fees shall be deemed timely paid only if delivered on or before the due date. If
FRANCHISEE remits franchise fees by mail or other delivery service, such franchise fees shall
be deemed timely only if (1) the envelope containing the franchise fee payment bears a postmark
or receipt showing that the payment was mailed or sent on or before the due date or (2)
FRANCHISEE submits proof satisfactory to the Franchise Administrator that the franchise fee
payment was in fact deposited in the mail or sent on or before said due date.
g. In the event FRANCHISEE believes that it has paid franchise fees in excess of the
fees due to the CITY, FRANCHISEE may submit a request for refund to the Franchise
Administrator. If proof of overpayment is satisfactory to the Franchise Administrator, the
Franchise Administrator shall authorize the CITY to refund to FRANCHISEE any overpayment.
FRANCHISEE shall not apply any overpayment .as a credit against any franchise fees or other
amounts payable to the CITY unless specifically so authorized by the Franchise Administrator in
writing.
Section 9. Ownership of Discard Material.
The CITY does not gain any ownership or right to possess Discard Material collected by
FRANCHISEE pursuant to this Agreement. Subject to the provisions of this Agreement and the
requirements of the CITY'S municipal code, FRANCHISEE shall have title to and may retain,
recycle, process. dispose of, or use the Discard Material that it collects.
Section 10. Disposal of Discard Material.
FRANCHISEE shall dispose of Discard Material collected or transported by
FRANCHISEE only by taking such Discard Material to a landfill, transfer station, recycling facility
materials recovery facility, or processing facility that is lawfully authorized to accept such material.
FRANCHISEE shali not dispose of such Discard Material by depositing it on any land, whether
public or private, except as authorized by the preceding sentence, or in any river, stream or other
waterway, or in any sanitary sewer or storm drainage system.
221 Section 11. Recycling Requirement
222 a. FRANCHISEE shall recycle fifty percent (50%) by weight of all Discard Material
223 except asphalt and concrete collected within the Service Area during each Franchise Year.
224 b. FRANCHISEE shali recycle one hundred percent (100%) by weight of all asphalt
225 and concrete collected within the Service Area during each Franchise Year.
226 c FRANCHISEE shall provide a printed list to each customer that specifies the
227 materials that may be placed in the various types of Discard Material containers including
228 Construction and Demolition Debris Boxes. FRANCHISEE shall specifically notify its customers
^'
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229 that all liquid wastes are prohibited and, except for those containers specifically placed for the
230 collection of Solid Waste or Organic Waste, the putrescible waste content may not exceed five
231 percent (5%) of each load.
232 Section 12. Reports
233 a. Monthly reports shall be submitted no later than fifteen (15) calendar days after the
234 end of the reporting month and annual reports shall be submitted no later than forty-five (45) days
235 after the end of each Franchise Year. Monthly and annual reports shall be submitted in hard
236 copy, and shall be provided electronically via e-mail, on a 3.5" IBM-compatible diskette, or a
237 compact disc using software acceptable to the CITY.
238 b. FRANCHISEE shall file with the Franchise Administrator a monthly report of the
239 quantities of Discard Material collected, transported, recycled, and disposed. Such report shall be
240 in such form and detail as required by the Franchise Administrator. At a minimum, the report
241 shall include comparative data for all months in the current Franchise Year and a comparison
242 with historical data from the previous Franchise Year. The report shall contain, but not be
243 limited to, the 1OIIowing information:
244 (1) The Discard Material tonnage, by material type, collected and removed
245 within the CITY during the previous month;
246 (2) The Discard Material tonnage, by material type, collected and removed
247 during the previous month within the CITY that was recycled and the location of the facility
248 where such Discard Material was recycled (weight tickets shall be retained by the
249 FRANCHISEE and made available to the CITY upon request for up to three (3) years after
250 the date first issued);
251 (3) The weight by material type (Construction and Demolition Debris) and the
252 weight by material category (steel, aluminum, concrete) in tons of Discard Material
253 collected within the CITY that was disposed of by FRANCHISEE at a landfill, transfer
254 facility, compost facility, or material recovery facility during the previous month and the
255 location of the facility where the disposal of such Discard Material occurred. Weight
256 tickets shall be retained and made available to the CITY upon request for up to three (3)
257 years after the date first issued.
258 (4) Gross receipts collected during previous month on all Discard Material
259 collection services, by material type, provided to customers located within the CITY.
260 (5) A listing of each container by service location, size and type, (Construction
261 and Demolition Debris, Organic Waste, Solid Waste, etc,) in the Service Area from which
262 FRANCHISEE collected Discard Material during the month.
263 (6) The number of collections of each listed container during the month.
264 c. FRANCHISEE shall file with the Franchise Administrator an annual report of the
265 quantities of Discard Material collected, transported, recycled, and disposed. Such report shall be
266 in such form and detail as required by the Franchise Administrator. At a minimum, the report
267 shall include comparative data for the current Franchise Year and a comparison with historical
268 data from the previous Franchise Years. The report shall contain, but not be limited to, the
269 following information:
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(1) The weight by material type (Construction and Demolition Debris) and the
weight by material category (steel, aluminum, concrete) in tons of Discard Material
collected within the CITY that was disposed of by FRANCHISEE at a landfill, transfer
facility, compost facility, or material recovery facility during the previous year and the
location of the facility where the disposal of such Discard Material occurred. Weight
tickets shall be retained and made available to the CITY upon request for up to three (3)
years after the date first issued.
(2) Gross receipts collected during previous year on all Discard Material
collection services, by material type. provided to customers located within the Service
Area.
(3)
(4)
Changes to the recycling plan
Updated insurance certificates.
282 d. FRANCHISEE shall maintain customer records containing such information as
283 may be required by the Franchise Administrator pertaining to the number and types of accounts
284 served by the FRANCHISEE. The CITY reserves the right to prescribe the format for providing
285 this information. This information· shall be provided to the Franchise Administrator upon request.
286 e. Upon the reasonable request of the Franchise Administrator, FRANCHISEE shall
287 submit to the CITY monthly reports including such additional information as may be required by
288 the Franchise Administrator. Such reports shall be prepared in a form as required by the
289 Franchise Administrator.
290 f. The Franchise Administrator may establish guidelines, forms and other
291 appropriate material to assist FRANCHISEE in preparing the reports required by this Section. A
292 FRANCHISEE'S failure to file the reports required by this Section shall constitute cause for
293 termination or suspension of its Franchise.
294
g.
Reports shall be submitted to:
295 Franchise Administrator
296 City of Dublin
297 100 Civic Plaza
298 Dublin, CA 94568
299 Section 13. Inspection Authority.
300 a. FRANCHISEE shall at all times maintain accurate and complete accounts of the
301 following records.
302 (1) All revenues and income arising out of its operations under the Franchise
303 granted pursuant to this Agreement.
304 (2) Any service complaints received and how they were resolved.
305 (3) FRANCHISEE'S books. accounts and records reasonably necessary for
306 the enforcement of this Agreement shall be made available for inspection, examination
307 and audit during normal business hours by authorized officers, employees and agents of
308 the CITY.
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309 The CITY shall provide FRANCHISEE written notice at least three (3) business days prior to any
310 inspection, audit or examination of these records.
311 b. In the event any audit conducted by the CITY or by the CITY'S representative
312 discloses that FRANCHISEE has made any intentional misrepresentation with respect to the
313 franchise fees or its diversion amounts to the CITY or discloses that FRANCHISEE has
314 underpaid franchise fees due to the CITY in an amount greater than One Thousand Dollars
315 ($1,000) or ten percent (10%) of the franchise fees payable to the CITY during the period covered
316 by the audit, whichever amount is greater, then in addition to any other remedies available to the
317 CITY, FRANCHISEE shall reimburse the CITY for the CITY'S costs incurred in the performance
318 of the audit. Such reimbursement shall be paid by FRANCHISEE, along with any underpaid
319 franchise fees, late payments and interest, within thirty (30) days of the date the CITY notifies
320 FRANCHISEE of the amount of the CITY'S costs.
321 Section 14. Insurance Requirements.
322 FRANCHISEE shall obtain and shall maintain throughout the term of this Agreement, at
323 FRANCHISEE'S sole cost and expense, insurance against claims for injuries to persons or
324 damages to property which may arise from or in connection with the performance of work
325 pursuant to this Agreement by FRANCHISEE, its agents, representatives, employees or
326 contractors.
327 a. FRANCHISEE shall maintain at least the bllowing minimum insurance coverage:
328 (1) Commercial General Liability: $1,000,000 combined single limit per
329 occurrence for bodily injury, personal injury and property damage. If Commercial General
330 Liability insurance or other form with a general aggregate limit is used, either the general
331 aggregate limit shall apply separately to this Agreement or the general aggregate limit
332 shall be twice the required occurrence limit.
333 (2) Automobile Liability: $1,000,000 combined single limit per accident for
334 bodily injury and property damage. Coverage shall include hired autos and non-owned
335 autos.
336 (3) Workers' Compensation and Employers Liability: Workers' Compensation
337 limits as required by the Califomia Labor Code and Employers Liability limits of
338 $1,000,000 per accident.
339 b. Any deductibles or self-insured retentions must be approved by the CITY'S Risk
340 Manager. FRANCHISEE shall be responsible for payment of all deductibles or self-insured
341 retentions.
342 c. The required insurance policies are to contain, or be endorsed to contain, the
343 following provisions:
344 (1) General Liability and Automobile Liability Coverage.
345 (a) The CITY, its officers, employees, agents and contractors are to be
346 covered as an additional insured as respects: liability arising out of activities
347 performed by, or on behalf of FRANCHISEE; products and completed operations
348 of FRANCHISEE; premises owned, leased or used by FRANCHISEE; and
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349 automobiles owned, leased, hired or borrowed by FRANCHISEE. The coverage
350 shall contain no special limitations on the scope of protection afforded to the CITY,
351 its officers, employees and agents and contractors.
352 (b) FRANCHISEE'S insurance coverage shall be primary insurance as
353 respects the CITY, its officers, employees, agents and contractors. Any insurance
354 or self-insurance maintained by the CITY, its officers, employees, agents or
355 contractors shall be excess of FRANCHISEE'S insurance and shall not contribute
356 with it.
357 (c) Any failure to comply with reporting provisions of the policies shall
358 not affect coverage provided to the CITY, its officers, employees, agents or
359 contractors.
360 (d) Coverage shall state that FRANCHISEE'S insurance shall apply
361 separately to each insured against whom claim is made or suit is brought, except
362 with respect to the limits of the insurer's liability.
363 (2) All Coverage. Each insurance policy required by this Agreement shall be
364 endorsed to state that coverage shall not be suspended, voided, or canceled, except after
365 thirty (30) days' (ten (10) days for nonpayment) prior written notice has been given to the
366 CITY.
367 (3) The Automobile Liability policy shall be endorsed to delete the Pollution
368 and/or the Asbestos exclusion and add the Motor Carrier Act endorsement (MCS-90), TL
369 1005, TL 1007 and/or other endorsements required by federal or state authorities for
370 haulers of hazardous materials.
371 d. Insurance shall be placed with insurers acceptable to the CITY'S Risk Manager.
372 FRANCHISEE must place insurance with a current A.M. Best rating of no less than A:VII. The
373 CITY'S Risk Manager may waive or alter this requirement, or accept self-insurance in lieu of any
374 required policy of insurance if, in the opinion of the Risk Manager, the interests of the CITY and
375 the generai public are adequately protected,
376 e. FRANCHISEE shall furnish the CITY with certificates of insurance and with
377 original endorsements affecting coverage required by this Agreement. The certificates and
378 endorsements for each insurance policy are to be signed by a person authorized by that insurer
379 to bind coverage on its behalf. Proof of insurance shall be mailed or personally delivered to the
380 address provided in Section 24 of this Agreement.
381 f. If General Liability, Pollution and/or Asbestos Pollution Liability and/or Errors &
382 Omissions coverages are written on a claims-made form:
383 (1) The "Retro Date" must be shown, and must be before the date of the
384 contract or the beginning of contract work.
385 (2) Insurance must be maintained and evidence of insurance must be
386 provided for at least five (5) years after completion of the contract of work.
387 (3) If coverage is canceled or non-renewed, and not replaced with another
388 claims-made policy form with a "Retro Date" prior to the contract effective date, the
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389
390
391
392
Contractor must purchase "extended reporting" coverage for a minimum of five (5) years
after completion of contract work.
(4)
for review.
A copy of the claims reporting requirements must be submitted to the CITY
393 g. FRANCHISEE acknowledges that the Discard Material Non-Exclusive Collection
394 Franchise granted to FRANCHISEE will not become effective, and FRANCHISEE will have no
395 authority to perform Discard Material collection in the CITY, unless FRANCHISEE provides
396 satisfactory proof of insurance PRIOR TO BEGINNING OPERATIONS AS A FRANCHISEE.
397 Section 15. Indemnity.
398 a. FRANCHISEE agrees to defend, with counsel selected by the CITY, indemnify,
399 and hold hannless the CITY, and its agents, officers, servants, and employees from and against
400 any and all claims asserted or liability established for damages or injuries to any person or
401 property, including injury to the CITY'S employees, agents or officers which arise from, or are
402 connected with, or are caused by willful or negligent acts or omissions of FRANCHISEE, or its
403 agents, officers or employees, in the performance of the non-exclusive Franchise or this
404 Agreement, or in perfonning the work or services therein, and all costs and expenses of
405 investigating and defending against same; provided, however, that FRANCHISEE'S duty to
406 indemnify and hold harmless shall not include any claims or liability arising solely from the
407 negligence or willful misconduct of the CITY, its agents, officers, servants and employees.
408 Section 16. Collection Equipment.
409 a. Containers shall be covered during transportation to prevent Discard Material from
410 escaping from the container.
411 b. All equipment used or provided by FRANCHISEE shall be kept in a safe and
412 sanitary condition. Vehicles used or provided by the FRANCHISEE for the Collection of Discard
413 Material shall be cleaned and painted, as needed, to maintain a clean and sanitary appearance.
414 Collection vehicles shall be painted and numbered without repetition and shall have the name of
415 the FRANCHISEE (as listed in this Agreement), the FRANCHISEE'S customer service telephone
416 number, and the number of the vehicle painted in letters of contrasting color, at least four (4)
417 inches high, on each side and the rear of each vehicie.
418 c. Vehicles will be subject to periodic, unscheduled inspections by the CITY and
419 determination as to sanitary condition shall be made by the CITY.
420 d. CITY shall have the right to prohibit the use of any vehicle that fails to comply with
421 the provisions set forth herein.
422 e. Violations of this provision shall subject the FRANCHISEE to liquidated damages
423 as set forth in Section 21 of this Agreement.
424 Section 17. Abandoned Containers.
425 a. If FRANCHISEE abandons any container used to provide Discard Material
426 services under this Franchise, the CITY may remove the container and/or dispose of the contents
427 of the container.
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b. If the CITY removes a container abandoned by FRANCHISEE and/or disposes of
the contents of any container abandoned by FRANCHISEE, the CITY may charge FRANCHISEE
for the CITY'S costs incurred in such removal/disposal and for the CITY'S costs of storage of the
container. FRANCHISEE shall reimburse the CITY for such costs within ten (10) days of the date
of the CITY'S invoice for such costs.
c. For the purposes of this Section, "abandoned" includes:
(1) FRANCHISEE'S failure to remove the container within thirty (30) days upon
termination of the Discard Material Non-Exclusive Collection Franchise or such additional
time as granted in writing by the CITY;
(2) FRANCHISEE'S failure to remove the container within a reasonable period
after the expiration of the Franchise granted to FRANCHISEE, except in the case where
FRANCHISEE has been granted an extension of the term of said Franchise or
FRANCHISEE has been granted a subsequent Discard Material Non-Exclusive Collection
Franchise authorizing FRANCHISEE to collect and transport the type or types of Discard
Material for which the container was used pursuant to this Agreement.
(3) FRANCHISEE'S failure to dispose of the contents of the container within
five (5) days after the Franchise Administrator issues written notice to FRANCHISEE to
dispose of the contents.
Section 18. FRANCHISEE Provided Discard Material Containers
Containers used for storage and transportation of Discard Material shall be
shall prominently display the name of the FRANCHISEE (as listed in this
FRANCHISEE'S customer service telephone number, and the number of the
a.
painted and
Agreement),
container.
b. FRANCHISEE shall make reasonable efforts to replace, clean or repaint all
containers as needed so as to present a clean appearance.
c. Containers will be subject to periodic, unscheduled inspections by the CITY and
determination as to sanitary condition shall be made by the CITY.
d. CITY shall have the right to prohibit the use of any container that fails to comply
with the pruvisions herein.
e. Violations of this provision shall subject the FRANCHISEE to liquidated damages
as set forth in Section 21 of this Agreement.
Section 19. Personnel
a. FRANCHISEE agrees that all drivers shall be trained and qualified in the operation
of collection vehicles and must have in effect a valid license, of the appropriate class, issued by
the Califomia Department of Motor Vehicles.
b. FRANCHISEE shall provide suitable operational and safety training for all of its
employees who utilize or operate vehicles or equipment for collection of Discard Material, or who
are otherwise directly involved in such collection.
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466 Section 20. Permits and Licenses.
467 FRANCHISEE shall obtain and maintain, at FRANCHISEE'S sole cost and expense, all
468 permits and licenses applicable to FRANCHISEE'S operations under the Franchise required of
469 FRANCHISEE by any governmental agency.
470 Section 21. Liquidated Damages
471 a. The parties acknowledge that consistent and reliable Discard Material collection
472 service is of utmost importance to CITY and that CITY has considered and relied on
473 FRANCHISEE'S representations as to its quality of service commitment in awarding the
474 Agreement to it. The parties further recognize that some quantified standards of performance are
475 necessary and appropriate to ensure consistent and reliable service and performance. The
476 parties further recognize that if FRANCHISEE faiis to achieve the performance standards, or fails
477 to submit required documents in a timely manner, CITY and CITY'S residents and businesses will
478 suffer damages and that it is and will be impractical and extremely difficult to ascertain and
479 determine the exact amount of damages. Therefore, without prejudice to CITY'S right to treat
480 such non-performance as an event of default under Section 22, the parties agree that the
481 liquidated damages amount defined in this Section represent reasonable estimates of the amount
482 of such damages considering all of the circumstances existing on the effective date of this
483 Agreement, including the relationship of the sums to the range of harm to CITY, customers and
484 the community as a whole that reasonably could be anticipated and the anticipation that proof of
485 actual damages would be costly or impractical. In placing their initials at the places provided.
486 each party specifically confirms the accuracy of the statements made above and the fact that
487 each party has had ample opportunity to consult with legal council and obtain an explanation of
488 the liquidated damage provisions at the time that the Agleement was made.
489
CITY Initial Here
FRANCHISEE Initial Here
490 b. Upon delivery of written notice to the FRANCHISEE, the CITY may impose the
491 following Liquidated Damages upon the FRANCHISEE, in addition to any other available
492 remedies the CITY may have.
493 (1) Failure to maintain public containers or vehicles in clean and sanitary
494 condition as required by this Agreement: $100.00 per day per incident.
495 (2) Failure to label public containers, Construction and Demolition Debris
496 Boxes and vehicles with FRANCHISEE'S name (as listed in this Agreement),
497 FRANCHISEE'S customer service telephone number, and the number of the container or
498 vehicle: $500 per day per incident.
499 (3) Failure to achieve and maintain either the fifty percent (50%) or one
500 hundred percent (100%) recycling requirement per Franchise Year as set forth in
501 Sections 11a. and 11b., respectively of this Agreement: ten percent (10%) of all gross
502 Discard Material collection revenues received for services provided within the Service
503 Area during that Franchise Year.
504 (4) Failure to remit franchise fee to CITY by the fifteenth (15th) of the month as
505 required in Section 8: $100.00 per occurrence plus late fees of two percent (2%) per
506 month for every month thereafter until paid.
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507 (5) Failure to maintain or submit documents and reports, other than annual
508 and monthly reports, as required under the terms of this Agreement after ten (10) days
509 notice: $100.00 per incident per day.
510 (6) Failure to submit monthly or annual reports required under Section 12 by
511 the due date: fifty dollars ($50.00) for the first fifteen (15) days, thereafter $100.00 per
512 incident per day.
513 (7) Failure to perform any other requirements of this Agreement not
514 specifically stated in this Section, and not corrected or in the process of correction within
515 twenty-four (24) hours of notice from the CITY: $200.00 each incident each day.
516 c. Above amounts may be adjusted by the CITY on each July 1, beginning with July
517 1, 2006 to reflect changes in the Consumer Price Index, All Urban Consumers, Series ID:
518 CUURA422SAO, San Francisco-Oakland-San Jose, CA, Not Seasonally Adjusted for the
519 preceding twelve (12) month peliod.
520 Section 22. Default, Termination
521 a. The CITY shall provide written notice of a default or failure to comply with any
522 obligation or duty imposed on FRANCHISEE under this Agreement or CITY ordinance. The
523 Franchise Administrator and FRANCHISEE shall thereupon meet and confer in good faith in an
524 effort to agree on a resolution and cure of the breach. If the parties are unable to agree on the
525 informal resolution or cure of the breach within ten (10) business days, the Franchise
526 Administrator shall have the right to terminate this Agreement Whereupon, FRANCHISEE shall
527 be suspended from providing Discard Matelial collection services for a period of five (5) years
528 from the date of the termination. After five (5) years, should the FRANCHISEE provide proof that
529 the event causing the FRANCHISEE to default has been corrected, and at the sole and complete
530 discretion of the CITY, the FRANCH ISEE may be reinstated upon re-application.
531 b. A default under this Agreement shall include, but not be limited to, any of the
532 following:
533 (1) Misrepresentation. Any misrepresentation made to the CITY by the
534 FRANCHISEE or failure to disclose required information any reports submitted to the
535 CITY, in FRANCHISEE'S application to enter into this Agreement or, in Agreement or any
536 future amendment to this Agreement, which proves to be false or misleading in any
537 matelial respect as of the time the representation or disclosure is made, whether or not
538 any such representation or disclosure appears as part of this Agreement
539 (2) Fraud or Deceit If the FRANCHISEE practices, or attempts to practice,
540 any fraud or deceit upon the CITY or its customers.
541 (3) Failure to Maintain Coverage. If the FRANCHISEE fails to provide or
542 maintain in full force and effect the Worker's Compensation or liability, coverage as
543 required by this Agreement.
544 (4) Violations of Regulation. If the FRANCHISEE violates any regulations,
545 permits, orders or filing of any regulatory body having jurisdiction over the FRANCHISEE
546 which violation or non-compliance matelially affects the FRANCHISEE'S ability to perform
547 under this Agreement, provided that the FRANCHISEE may contest any such orders or
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548 filings by appropriate proceedings conducted in good faith, in which case no breach of the
549 Franchise shall be deemed to have occurred during the pendency of the contestation or
550 appeal, to the extent the FRANCHISEE is able to adequatelyperfolTll during that period.
551 (5) Acts or Omissions. Any other act or omission by FRANCHISEE which
552 materially violates the terms, conditions, or requirements of this Agreement, City Code,
553 AB 939, as it may be amended from time to time, or any order, directive, rule, or regulation
554 issued hereunder and which is not corrected or remedied within the time set in the written
555 notice of the violation or, if the FRANCHISEE cannot reasonably correct or remedy the
556 breach within the time set forth in such notices, if the FRANCHISEE should fail to
557 commence to correct or remedy such violation within the time set forth in such notice and
558 diligently effect such correction or remedy thereafter.
559 (6) Failure to Meet Recycle Requirement. If the FRANCHISEE fails to meet
560 the Recycle requirement as set forth in Section 11 of this Agreement.
561 (7) Failure to Pay Franchise Fees. If the FRANCHISEE fails to pay the
562 franchise fees in the amount owed to the CITY pursuant to Section 7 according to the
563 schedule specified in Section 8.
564 c. Termination. If the Franchise Administrator determines, at his sole discretion,
565 that the FRANCHISEE has defaulted under the terms of this Agreement, failure to cure
566 will result in suspension, penalties, or a notice of termination of this Agreement by the
567 CITY in accordance with subsection e.
568 d. Force Majeure. The performance of this Agreement may be discontinued or
569 temporarily suspended in the event of Force Majeure. FRANCHISEE shall not be deemed to be
570 in default and shall not be liable for failure to perform under this Agreement if FRANCHISEE'S
571 performance is prevented or delayed by Force Majeure.
572 e. The Franchise Administrator shall serve written notice pursuant to Section 24 of
573 the termination of a Franchise under this Agreement to the last place of business of the
574 FRANCHISEE, and the FRANCHISEE shall cease operation under its FRANCHISE within ten
575 (10) calendar days after receipt of said notice unless FRANCHISEE has requested an appeal
576 hearing before the CITY prior to the expiration of the ten (10) day period. In the event
577 FRANCHISEE requests such an appeal hearing, said FRANCHISEE may continue collecting,
578 transporting, recycling and disposing of Discard Material until the CITY has rendered its decision
579 on the tel1l1ination of the Franchise.
580 f. Any FRANCHISEE whose Franchise has been tel1l1inated has the right to an
581 appeal hearing before the CITY COUNCIL. FRANCHISEE shall request such a hearing in writing
582 to the City Clerk within ten (10) calendar days after receipt of notice of termination, and the CITY
583 COUNCIL shall hold the appeal hearing not later than thirty (30) calendar days following the
584 receipt of the written request if requested by FRANCHISEE. The Clerk shall give written notice of
585 the time, date and place of the appeal hearing to FRANCHISEE and the Franchise Administrator.
586 The CITY COUNCIL shall render its decision after the close of the appeal hearing and its
587 decision shall be final; provided, however, that nothing herein shall limit FRANCHISEE'S right to
588 seek judicial review or remedies.
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589 Section 23. Conditions Upon Termination.
590 a. In the event the Discard Material Non"Exclusive Collection Franchise is terminated
591 the following conditions and requirements shall survive tennination:
592 (1) FRANCHISEE shall have no right or authority to engage in Discard
593 Material collection, recycling or disposal operations in the CITY for a period of five (5)
594 years from the date of the termination.
595 (2) FRANCHISEE shall, however, remain liable to the CITY for any and all
596 franchise fees that would otherwise be payable by FRANCHISEE pursuant to Section 8 of
597 this Agreement, for any and all liquidated damages assessed pursuant to Section 21 of
598 this Agreement, and for any indemnity obligations under Section 15 of this Agreement.
599 (3) FRANCHISEE shall have a continuing obligation to submit to the CITY all
600 reports required by Section 12 of this Agreement which relate to Discard Material activities
601 performed by FRANCHISEE up to and including the date oftermination.
602 (4) FRANCHISEE shall allow the Discard Material generators served by
603 FRANCHISEE to arrange for Discard Material collection services with a collector
604 authorized to perform such services, without penalty or liability for breach of contract on
605 the part of the generators.
606 b. In the event the Franchise is terminated, then within the time period specified by
607 the CITY and if directed by the Franchise Administrator, FRANCHISEE shall remove all of
608 FRANCHISEE'S Discard Material containers from all of FRANCHISEE'S collection service
609 locations and shall properly recycle or dispose of all Discard Material in such containers.
610 Section 24. Notices.
611 Except as otherwise provided in this Agreement, all notices required by this Agreement or
612 by the Discard Material Box Collection Franchise shall be given by personal service or by deposit
613 in the United States mail, postage pre-paid and return receipt requested, addressed to the pariies
614 as follows:
To CITY:
Franchise Administrator
City of Dublin
100 Civic Plaza
Dublin, CA 94568
To FRANCHISEE:
615 Notice shall be deemed received on the date personally served or, if mailed, three (3)
616 business days after the date deposited in the mail.
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617 Section 25. Relationship ofthe Parties
618 The parties intend that the FRANCHISEE shall perform the services required by this
619 Agreement as an independent contractor and not as an officer or employee of the CITY nor as a
620 partner of or joint venturer with the CITY. No employee or agent of the FRANCHISEE shall be
621 deemed to be an employee or agent of the CITY. Except as expressly provided herein, the
622 FRANCHISEE shall have the exclusive control over the manner and means of conducting the
623 Discard Material collection services performed under this Agreement and all persons performing
624 such services. FRANCHISEE shall be solely responsible for the acts and omissions of its
625 officers, employees, subcontractors and agents shall not obtain any rights to retirement benefits,
626 worker's compensation benefits, or any other benefits which accrue to the employees of the CITY
627 by virtue of their employment with the CITY.
628 FRANCHISEE agrees that this Agreement is not made in the interest of, or on behalf of,
629 any undisclosed person, partnership, franchisee, association, organization, or corporation.
630 FRANCHISEE has not directly or indirectly colluded, conspired, connived or agreed with any
631 person, partnership, FRANCHISEE, association, organization, or corporation to secure any
632 advantage against the CITY.
633 Section 26. Compliance with Law
634 In providing the services required under this Agreement, FRANCHISEE shall at all times,
635 at its sole cost, comply with all applicable laws of the United States, the State of California, the
636 CITY and other states, cities or counties which may have jurisdiction over any service provided in
637 this Agreement and with all applicable regulations promulgated by any federal, state, regional or
638 local administrative and regulatory agency, now in force and as they may be enacted, issued or
639 amended during the term of this Agreement.
640 Section 27. Governing Law
641 This Agreement shall be governed by, and construed and enforced in accordance with,
642 the laws of the State of California.
643 Section 28. Jurisdiction
644 The parties agree that this Agreement is made in and will be performed in the CITY and
645 any lawsuits between the parties arising out this Agreement shall be filed in Alameda County, CA.
646 Section 29. Assignment
647 a. FRANCHISEE acknowledges that this Agreement involves rendering a vital
648 service to the businesses within the CITY, and that the CITY has Franchised FRANCHISEE to
649 perform the services specified herein based on (1) FRANCHISEE'S experience, skill and
650 reputation for conducting its Discard Material collection in a safe, effective and responsible
651 fashion, at all times in keeping with applicable waste management laws, regulations and good
652 waste management practices, and (2) FRANCHISEE'S financial resources to maintain the
653 required equipment and to support its indemnity obligations to the CITY under this Agreement.
654 The CITY has relied on each of these factors, among others, in choosing the FRANCHISEE to
655 perform the services to be rendered by the FRANCHISEE under this Agreement.
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656 b. Any Franchise granted is a privilege to be held in trust by the original
657 FRANCHISEE. A Franchise issued by the CITY shall not be transferred, sold, leased, assigned,
658 or relinquished, or delegated to another person, either in whole or in part, whether by forced sale,
659 merger, consolidation, bankruptcy laws or otherwise, without the written prior approval of the
660 CITY. This restriction includes the transfer of ownership of the Franchise, or a majority of the
661 ownership or control of the FRANCHISEE, or the conveyance of a majority of the
662 FRANCHISEE'S stock to a new controlling interest. Franchises shall become void upon the
663 abandonment of same by the FRANCHISEE. The CITY shall not unreasonably withhold approval
664 of a Franchise assignment, provided that such assignment does not unreasonably impact
665 competition and the assignee meets all of the requirements established by the CITY for the
666 granting of this Franchise and is qualified to perform its obligations as required by this Franchise
667 Agreement.
668 c. FRANCHISEE shall promptly notify the Franchise Administrator in writing in
669 advance of any proposed assignment, sale, or transfer. In the event the CITY approves of any
670 assignment, sale, or transfer, said approval shall not relieve FRANCHISEE of any of its
671 obligations or duties under this Agreement unless this Agreement is modified in writing to that
672 effect.
673 Section 30. Binding on Successors
674 The provisions of this Agreement shall inure to the benefit to and be binding on the
675 successors and permitted assigns of the parties.
676 Section 31. Waiver
677 The waiver by either party of any breach or violation of any provisions of this Agreement
678 shall not be deemed to be a waiver of any breach or violation of any other provision nor of any
679 subsequent breach or violation of the same or any other provision. The subsequent acceptance
680 by either party of any monies which become due hereunder shall not be deemed to be a \M3iver of
681 any preexisting or concurrent breach or violation by the other party of any provision of this
682 Agreement.
683 Section 32. Entire Agreement
684 This Agreement, including the Attachments, represents the full and entire Agreement
685 between the parties with respect to the matters covered herein.
686 Section 33. Interpretation
687 This Agreement shall be interpreted and construed reasonably and neither for nor against
688 either party, regardless of the degree to which either party participated in its drafting.
689 Section 34. Amendment
690 This Agreement may not be modified or amended in any respect except by a written
691 agreement duly approved and signed by the parties.
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692 Section 35. Severability
693 If any nonmaterial provision of this Agreement is for any reason deemed to be invalid and
694 unenforceable, the invalidity or unenforceability of such provision shail not affect any of the
695 remaining provisions of this Agreement which shall be enforced as if such invalid or
696 unenforceable provision had not been contained herein.
697
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697 IN WITNESS WHEREOF, the CITY and the FRANCHISEE have executed this Agreement on the
698 day and year first written above.
699
CITY OF DUBLIN
FRANCHISEE
700 A Municipal Corporation
701
702
703
704
705
706 Attest:
707
708
709
710 Kay Keck, City Clerk
RICHARD C. AMBROSE
CITY MANAGER
(Name & Title)
711
712
713 Approved as to Form:
714
715
716
717 Elizabeth H. Silver, City Attomey
718
719
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