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HomeMy WebLinkAboutCC Resolution 13282 (Hazardous Waste Collection Program)RESOLUTION NO. 13282 RESOLUTION APPROVING AND AUTHORIZING THE CITY MANAGER TO EXECUTE THE AMENDED HAZARDOUS WASTE COLLECTION PROGRAM AGREEMENT WITH THE MARIN RECYCLING AND RESOURCE RECOVERY ASSOCIATION WHEREAS, the City Council on September 5, 1995, pursuant to Resolution No. 9448, approved and entered into a Hazardous Waste Collection Program Agreement, dated September 14, 1995, with Marin Recycling and Resource Recovery Association, for the establishment and operation of a permanent household hazardous waste collection facility and a conditionally exempt small quantity generator waste collection facility at 565 Jacoby Street in San Rafael; and WHEREAS, the City of San Rafael and Marin Recycling and Resource Recovery Association have agreed upon the amended agreement to clearly specify responsibilities, documentation, and the new Door -to -Door Household Universal Waste Pick-up Program; and WHEREAS, the City Council approves the waiver of competitive bidding with respect to this Agreement pursuant to San Rafael Municipal Code Section 2.55.070 in order to allow Marin Recycling and Resource Recovery Association to continue to provide the City with the required services at its modernized facility at 565 Jacoby Street, in compliance with its funding agreement with the California Integrated Waste Management Board. NOW THERFORE, BE IT RESOLVED that the San Rafael City Council authorizes and empowers the City Manager of the City of San Rafael to execute in the name of the City of San Rafael the Amended Hazardous Waste Collection Program Agreement with the Marin Recycling and Resource Recovery Association in a form approved by the City Attorney. BE IT FURTHER RESOLVED that the City Council of the City of San Rafael finds that the actions taken by the Resolution are not subject to the California Environmental Quality Act (CEQA), pursuant to Article 5, Section 15061(b) (3) of the CEQA Guidelines because there is no possibility that they will have a significant effect on the environment as provided by CEQA. The City Clerk is hereby directed to file the necessary Notice of Exemption as provided under CEQA. I., ESTHER C. BEIRNE, Clerk of the City of San Rafael, hereby certify that the foregoing Resolution was duly and regularly introduced and adopted at a regular meeting of the City Council of said City held on Tuesday, the 17th day of January, 2012 by the following vote, to wit: AYES: COUNCILMEMBERS: Connolly, Heller, Levine, McCullough & Mayor Phillips NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None ESTHER C. BEIRNE, City Clerk AMENDED HAZARDOUS WASTE COLLECTION PROGRAM AGREEMENT This Agreement is entered into as of the 26th day of January, 2012, between the City of San Rafael, a Charter City ("City"), and Marin Recycling & Resource Recovery Association, a California Corporation ("Company"). WHEREAS, the City entered into a Hazardous Waste Collection Program Agreement with the Company, dated September 14, 1995, as approved by City Council Resolution No. 9448, pursuant to which the Company has been operating a household hazardous waste facility (-HHWF-) and also collecting conditionally exempt small quantity generator waste on behalf of the City on a property owned by Marin Sanitary Service at 565 Jacoby Street in San Rafael; and WHEREAS, the City holds a permit from the Marin County Certified Unified Program Authority (CUPA) to conduct a hazardous waste collection program for household hazardous waste and conditionally exempt small quantity generator waste. the Facility Operator being named as the Company; and WHEREAS, the parties now desire to enter into a new agreement that supersedes the Hazardous Waste Collection Program Agreement, dated September 14, 1995, which shall be deemed terminated on the effective date of this Agreement, subject to the survival of the indemnification provisions in such superseded Agreement. NOW, THERFORE, in consideration of the mutual promises contained in this Agreement, the pat -ties agree as follows: Definitions. A. "Approved Hazardous Waste" means hazardous waste that Company is authorized to receive at the HHWF from households consisting of: Used Oil Used Oil Filters Household batteries Small quantities of mercury Latex paints Pesticides and herbicides Kerosene Acids Caustics Old gasoline Other household flammable liquids Ethylene Glycol Lead acid batteries Household cleaners Fertilizers Oil Based Paints Paint strippers Lamp oil Bases Universal versal Waste And the hazardous waste that Company is authorized to receive from CESQG's consisting of the above listed household hazardous waste and any other hazardous waste as defined in Title 22. California Code of Regulations, Section 66261.3. B. "Approved Service Area" shall mean all incorporated cities and towns, except Novato, and the unincorporated areas of the County of Marin. C. "BOP" means grant assistance provided to the HHW program by the Marin County Storm Water Program. D. "CESQG" is a Conditionally Exempt Small Quantity Generator business that generates no more than 100 kilograms of hazardous waste in a calendar month as defined in H&S Code section 25218.1. E. "CESQG Waste" is Approved Hazardous Waste generated by Conditionally Exempt Small Quantity Generator businesses. F. "Disposal Manifest" shall have the meaning set forth in California Code of Regulations, Title 22, Section 66262.20. G. "Generator'" or "Producer" means any person, by site, whose act or process produces hazardous waste identified or listed in Chapter 11 of Title 22, Division 4.5 of the California Code of Regulations, or whose act first causes a hazardous waste to become subject to regulation. H. "HHWF" means the portion of the property at 565 Jacoby Street leased by Company from Marin Sanitary Service that has been set aside and designated for the Company's receipt of Approved Hazardous Wastes. L "Household hazardous waste" or "1IFIW" means any Approved Hazardous Waste generated incidental to owning and/or maintaining a place of residence. Household hazardous waste does not include any waste generated in the course of operating a business at a residence. J. "JPA" means the Marin County Hazardous and Solid Waste Joint Powers Authority. K. "Participant" means any individual from a household or a CESQG that delivers Approved Hazardous Waste to the HHWF or removes Approved Household Hazardous Waste from the HHWF as part of the reuse of HHW. Participant also includes a household where Approved Hazardous Waste is collected as part of the Door -to -Door Household Universal Waste Pick-up Program. L. " Pennitted Disposal site'" means a hazardous waste disposal site permitted or deemed to be permitted pursuant to 42 U.S.C. section 6925 and California Health & Safety Code. Sections 1-5200. 25200.5 and applicable regulations. -2- M. "Registered Hazardous Waste Transporter" means a transporter registered with the Department of Toxic Substance Control to transport hazardous wastes, as required by California Health & Safety Code, Division 20, Articles 6 (Health & Safety Code Section 25160 et seq.) and 6.5 (Health & Safety Code Section 25167.1 et seq.), and California Code of Regulations, Title 22, Division 4.5, Chapter 13, Section 66264. 10 et seq. N. "Reuse" means to use a material again for its original purpose without additional processing by providing the material free to the public. O. "Universal Waste" means hazardous waste consisting of: Electronic devices Batteries Fluorescent tubes and bulbs Mercury -containing equipment CRTs Aerosol cans 2. Scope of Services. A. Acceptance and Management of Approved Hazardous Waste. (1) Company shall perform all operational services for the Door -to -Door Household Universal Waste Pick -tip Program and at the HHWF in connection with receipt. storage, handling, disposal and data collection of the Approved Hazardous Waste in accordance with this Agreement and all applicable federal, state and local laws and regulations. (2) Company shall accept Approved Hazardous Waste at the HHWF according to the operating schedule as described in Exhibit "A". as it may be modified from time to time by agreement of the parties or as otherwise provided in Exhibit "A". (3) The Company shall voluntarily receive at the HHWF only Approved Hazardous Waste -which has been produced by a resident or a CESQG located within the Approved Service Area. Before accepting such waste, Company shall require verification that the Approved Hazardous Waste delivered to the Company was produced by residents within the Approved Service Area. (4) Moreover. the Company shall not receive any hazardous waste which it does not believe can be handled or stored legally, safely. or compatibly with the facilities and Nvith other hazardous wastes at the HHWF. Company shall not accept any Un -Approved Hazardous Waste at the HHWF as identified in EXHIBIT -B". (5) Company shall segregate. package. label and otherwise prepare, and Registered contract for transport of Approved Hazardous Waste received at the HHWF b.1 y a L_istered Hazardous Waste Hauler. approved by the City's Fire Department, to a Permitted Disposal site. Company shall have a written Transport Agreement with any Registered Hazardous Waste -3- Transporter selected by Company to transport the Approved Hazardous Waste that obligates such Transporter to indemnify, defend, hold harmless and release City and the JPA, and their officers, agents and employees, from and against any and all actions, claims, damages, liabilities or expenses (including costs of defense, settlement, expert witness fees, and attorney's fees) that may be asserted by any person or entity, including the Transporters employees or agents, arising out of or in connection with the performance of such Transporter under the Transport Agreement, whether or not there is concurrent negligence on the part of the City or JPA, but excluding liability due to the sole active negligence or sole willful misconduct of the City or JPA. Such Transport Agreement also shall require the Transporter to carry the following insurance which City may require to be carried with higher coverage limits if determined to be reasonably necessary to protect the City and JPA's interests: Commercial General Liability Insurance--$ 2 Million Automobile Insurance -45 Million Pollution, Sudden and Accidental Insurance --$5 Million Workers Compensation-- Statutory limits The Commercial General Liability Insurance, Automobile Insurance, and Pollution, Sudden and Accidental Insurance shall be placed with an insured with an A.M. Best rating of at least A7. The Commercial General Liability Insurance also shall name the City and JPA as additional insureds, with such insurance being primary insurance. (6) Company shall collect, maintain and provide copies to the City of all manifests, shipping documents, waste disposal invoices and any other documents and data related to waste received, disposal and dispersal. (7) Company shall have the responsibility for the safe handling and storage of the Approved Hazardous Waste from the time the Approved Hazardous Waste is received by Company through the Door -to -Door Household Universal Waste Pick-up Program, or is received by Company at the HHWF, until such time as the Company has completed the safe loading of the Approved Hazardous Waste onto a Registered Hazardous Waste Transporter vehicle for transport to a Permitted Disposal site designated on a Disposal Manifest. (8) Company shall work to resolve all customer conflicts internally without contacting or involving the City. (9) Company shall provide security to assure the safety of Approved Hazardous Waste stored at the HHWF. B. Transportation and Disiaosal of A-onroved Hazardous Waste. (1) Under the terms of this Agreement. the City agrees that it is and accepts the responsibilities of the Generator and Producer of the Approved Hazardous Waste received by the Company at the HHWF in accordance with this Agreement. However, City shall not be responsible for contamination permitted or caused by Company as a result of activities or operations by the Company. -4- (2) The City agrees that Company shall be responsible for the Bills of Lading or Hazardous Waste Manifests in accordance with United States Department of Transportation and State regulations. Company agrees to provide an experienced and qualified person to sign hazardous waste shipment manifests and bills of lading on behalf of the City. (3) City shall provide a Hazardous Waste California ID number. C. Reportinia Requirements. (1) Within one month following the end of each quarter, Company shall submit reports to City detailing HHW program and CESQG program activities for the previous quarter; the report shall include all of the following: (a) Expense invoices and collection and disposal related paperwork, including but not limited to manifests, bills of lading, Participant delivery receipts, and reuse receipts. (b) All revenue receipts including but not limited to the CESQG fees. (c) List of the types and quantities of CESQG waste received together with identity of the jurisdiction where the CESQG waste was located. (d) List of the types and quantities of HHW received together with the identity of the jurisdiction where the household was located. (e) List of the types and quantities of Door -to -Door Household Universal Waste received. (2) Within one month following the end of each City fiscal year ending, Company shall submit a report to the City detailing the types and total quantities of waste received by the HHW program in the previous fiscal year, so that the City may comply with State of California's reporting regulations as currently specified in the California Department of Resources Recycling and Recovery (CalRecycle) Form 303a, or any successor regulations. (3) By February 1 of each year, the Company shall submit a report to the City regarding the electronic waste received by the HHW program in the previous calendar year, so that the City may comply with State of California's reporting regulations as currently specified in the California Department of Resources Recycling and Recovery (CalRecycle) Annual CE`s' Net Cost Report Form 220 and CEW Net Cost Estimation Worksheets for Collectors Form 220A, or any successor regulations. (4) City may require Company to provide additional operational related data as deemed necessary for the Cit\ 's monitoring and supervision of the operations of the HHWF. -5- D. Trained and Qualified Personnel. (1) Company shall be the supervisors of HHWF staff and resolve any personnel issues or conflicts without City involvement. (2) Company shall ensure that sufficient numbers of personnel meeting the requirements of this section are available during the operating schedule to adequately meet the requirements of the Agreement. (3) Company shall use qualified staff trained in minor spill response, general health and safety, and emergency procedures to collect, sort, identify and package, manifest, transport and arrange for the treatment and/or disposal of incoming Approved Hazardous Waste. (4) Company shall ensure that any personnel assigned to the functions described in Section 2.D.(3) shall receive the training specified in California Code of Regulations, Title 22, Section 66264.16(a), and Title 8, Sections 3380 and 5192, and shall keep records of such training available on site at all times for inspection by the City. (5) Company shall ensure that a medical surveillance program is instituted for personnel meeting the requirements of Title 8 of the California Code of Regulations, Section 5192(f)(2), and shall keep such records on site at all times for inspection by the City. E. HHWF General Operational Requirements. (1) Company shall provide all the required expertise, management skills, equipment and supplies necessary to operate a HHWF and CESQG Waste Collection program, and a Door -to -Door Household Universal Waste Pick-up Program, including but not limited to, providing properly trained and qualified personnel, preparing and distributing public information materials to Participants and members of the public, collecting Approved Hazardous Waste, identifying unknown wastes, packaging and labeling the Approved Hazardous Waste, and providing on-site interim storage, transport, recycling, reuse, and disposal of the Approved I-Iazardous Waste. (2) Company shall ensure compliance with the standards and policies as specified in the City's HHWF Operations Manual, dated October 1993, as it may be amended by City from time to time hereafter. (3) Company shall provide personnel to control on-site traffic, greet Participants, unload Participant's vehicles. and identify and segregate Approved Hazardous Waste. Company shall instruct Participants to remain in their vehicles at all times as required by State law. Prior to unloading. Company shall inspect the material for any potential Un -Approved Hazardous Waste. -6- F. Surveys and Information Materials. (1) When requested by the City, Company shall provide personnel to distribute City information materials and/or collect City survey information from Participants at the HHWF. (2) Company shall contract for the printing of Household Waste Delivery forms and CESQG delivery forms as necessary. G. Public Education. Company shall have a public education program as described in EXHIBIT "C" to promote use of the HHWF and the Door to Door Household Universal Waste Pick-up Program provided in subparagraph J below. 11. CESQG Waste Collection. (1) Company shall ensure that when a CESQG is being unloaded, only one waiting vehicle is unloaded at a time, and that all participants remain in their vehicles. A single file unloading line shall be maintained at all times. (2) Company shall: (a) Ensure that CESQG's are charged in accordance with the fee amounts listed on the CESQG Fee List as set forth by City Resolution. (b) Track quantities and pounds of waste, total pounds delivered from each municipality or jurisdiction and total dollar amounts collected from CESQG's. (c) Invoice those businesses that do not pay during delivery. (d) Provide a receipt to CESQG's, which shall reflect the name of the CESQG, the address and phone number of the CESQG, the poundage of waste received, the fees paid for depositing the waste at the HHWF, and the HHWF and CESQG's Hazardous Waste California 11) Number. 1. Reuse. (1) In conjunction with the 11FINV and CESQG Waste collection and disposal. Company shall promote and operate a reuse program. Company shall make available to the public certain hazardous and recyclable materials for the purpose of reuse by the public. Company shall assure that anv reuse materials are not leakim,. and shall maintain such reuse materials in an approved storage container, in a designated location that is accessible and safe for retrieval by the public. Signage shall be provided to direct the public to the reuse area. (2) Company shall maintain records of the Reuse participants' municipality or jurisdiction, quantity and type of Reuse materials taken and provide the same to City as provided in 2 C. specifying the Reuse participants' municipality or jurisdiction, type and quantity of materials retrieved and date of retrieval. J. Door -to -Door Household Universal Waste Pick-ur) Proiiram. (1) Company shall establish a Door -to. -Door Household Universal Waste Pick-up Program as provided in EXHIBIT "D", with a targeted implementation date of July 1, 2012, subject to budgeting in the annual HHW program budget approved by the JPA. (2) The service area for the implementation of the Door -to -Door Household Universal Waste Pick-up Program shall be initially limited to the City of San Rafael. The Company shall expand the Door -to -Door Household Universal Waste Pick -Lip Program to other municipalities or jurisdictions upon mutual agreement between the City and Company subject to budgeting of such expansion in the annual HHW program budget approved by the JPA. 3. ComDanv's Books and Records. A. Company shall maintain any and all documents and records demonstrating or relating to Company's performance of services under this Agreement, including ledgers, books of account, invoices, vouchers, cancelled checks, or other documents or records evidencing or relating to work, services. employee time -sheets, and expenditures and disbursements charged to City under this Agreement. All financial documents or records shall be maintained in accordance with generally accepted accounting principles and all docurnents shall be sufficiently complete and detailed so as to permit an accurate evaluation of the services provided by Company under this Agreement. All such documents or records shall be maintained for four years following the final payment under this Agreement. The Company shall make available such documents and records for audit. review and copying by City or City's agent upon 10 days advance notice from City. B. City shall have the right to request and receive any Company documentation or other information that is reasonably necessary for City to properly evaluate any Company invoices submitted to the City and to withhold payment pending receipt and evaluation of all information requested. Contractor hereby grants City permission to contact any vendor. supplier, contractor named in the invoice for the purposes of evaluation and/or verification of an invoice. C. In August 2012 and every three years thereafter, there shall be an independent certified audit of the Company's records of the expenses, profit and revenues for the previous period tinder this Agreement. The City shall obtain the services of an independent auditor to perforin this audit. the cost of which shall be included in the annual approved JPA budget. The Coitipan-, shall provide an adequate work space within their adininistratixe office for the auditor to perform the audit. During the audit Company shall make all records under this agreement available to the auditor. Upon completion, the results of the certified audit shall be made available to the City. JPA and Company. ".0 4. Term. A. The term of this Agreement shall commence upon March 1, 2012 and shall continue to June 30, 2020, subject to earlier termination as provided in Section 11.G. B. This Agreement shall not become effective unless the City and the JPA have entered into an Amended Hazardous Waste Funding Agreement which supersedes the Agreement between the City and the JPA dated July 1, 1996. 5. Compensation. The procedures for compensation to the Company are as outlined in Exhibit "E". 6. Compliance with Agreement; Applicable Laws, Inspections. A. Company shall perform its obligations under this Agreement in conformance with the conditions of the CUPA pen -nit issued to the City and with all applicable federal, state and local laws and regulations. B. Company shall maintain the HHWF in such a condition that it can pass a Marin County CUPA inspection at any time. C. Company shall inspect the HHWF at least monthly to confirm compliance with the CUPA permit and all applicable laws. D. City shall be entitled to inspect the HHWF, with or without Marin County CUPA, at any time during the HHWF operational hours, without any advance notice to Company, to confirm compliance with the CUPA permit and all applicable laws, and compliance with the terms of this Agreement. 7. Indemnification. A. Company agrees to accept all responsibility for loss or damage to any person or entity, and to defend, indemnify, hold harmless and release City, its officers, agents and employees, from and against any and all actions. claims. damages, liabilities or expenses (including costs of defense, settlement, expert witness fees, and attorney's fees) that may be asserted by any person or entity. including Company's employees or agents, arising out of or in connection with the performance of Company under this Agreement, whether or not there is concurrent negligence on the part of the City, but excluding liability due to the sole active negligence or sole willful misconduct of the City. This indemnification obligation is not limited in any way by any limitation on the amount or tvpe of damages or compensation payable to or for Company or its agents under workers" compensation acts. disability benefit acts or other employee benefit acts. In addition. Company shall be liable to City for any loss or damage to City property arising from or in connection with Company's performance hereunder. -9- B. Notwithstanding the foregoing, the parties understand that Company's obligation to defend, indemnify, hold harmless and release City shall not apply to and specifically excludes any and all liability arising out of or in connection with the handling, treatment, storage or disposal of Approved Hazardous Waste by third parties after it has been loaded onto a Registered Hazardous Waste Transporter vehicle for transport to a Permitted Disposal site designated on a Disposal Manifest, and that as between the parties to this Agreement, Company shall not (for liability purposes or otherwise) be construed as either the generator or arranger of such Approved Hazardous Waste. $. Insurance. Company shall procure and maintain for the duration of this Agreement, insurance as provided hereafter against claims for injuries to persons or damages to property which may arise from or in connection with the work hereunder by the Company, its agents, representatives, employees or subcontractors. With respect to Commercial General Liability. Auto Liability Insurance, and Pollution Liability Insurance, coverage shall be maintained for a minimum of five (5) years after the expiration or earlier termination of this Agreement. A. Minimum Scope of Insurance. Company shall maintain Insurance policies with coverages as follows: 1. Commercial General Liability, occurrence based coverage (Insurance Services Office Form CGOOO I); 2. Automobile Liability Insurance, any owned and non -owned vehicle (Insurance Services Office Form No. CA000I); 3. Worker's Compensation Insurance, as required by the State of California; 4. Employer's Liability Insurance; and 5. Pollution Liability Insurance. B. Minimum Limits of Insurance. Company shall maintain coverage limits in its insurance policies that are no less than; 1. Commercial General Liability: $3 Million per occurrence and $6 Million policy annual aggregate. for bodily injury, personal injury and property damage. 2. Automobile Liability: $3 Million per accident for bodily injure and property damage. 3. Workers Compensation Insurance: Statutory minimum. 4. Employer's Liability Insurance: $1 Million each accident. $1 Million policy limit bodily injury by disease. and $1 Million each employee bodily injury by disease. -10- 5. Pollution Liability Insurance: $6 Million each occurrence, $6 Million policy annual aggregate. C. Deductible and Self Insured Retention. Any deductibles or self insured retention shall be declared to and approved by the City. If possible, the insurer shall reduce or eliminate such deductibles or self insured retention as respects the City, its officers, officials, employees and volunteers; or the Company shall provide evidence satisfactory to the City guaranteeing payment of losses and related investigations, claim administration and defense expenses. In the event Company maintains a self insured retention under any of the foregoing insurance policies, the Company shall upon notice of a claim under a policy surrender and pay the self insured retention amount toward the defense and settlement of said claim. D. Other Insurance Provisions. 1. The Commercial General Liability, Automobile Liability and Pollution Liability Insurance policies shall contain, or shall be endorsed to contain, the following provisions: (a) The City, its officers, officials, employees and volunteers shall be named as additional insureds. (b) The Company's insurance coverage shall be primary insurance as respects the City, its officers, officials, employees, agents and volunteers. Any insurance or self- insurance maintained by the City, its members, officers, officials, employees, agents or volunteers shall be excess of the Company's insurance and shall not contribute with it. (c) Each insurance policy required by this clause shall be endorsed to state that coverage shall not be canceled or materially changed by the Insurer except after thirty (30) days prior written notice has been given to the City. 2. The Automobile Liability policy shall be endorsed to delete the Pollution exclusion and add the Motor Carrier Act endorsement (MCS -90), TL 1005, TL 1007 and any other endorsements that may be required by federal or state authorities. 3. None of the required insurance policies may be obtained on a Claims Made basis, other than the Pollution Liability Insurance, and if such insurance is obtained on such a basis, the following shall apply: (a) The "Retro Date" shall be sho-vvii. and shall be before the date of the Agreement or the beginning of contract work. (b) Insurance shall be maintained and evidence of insurance shall be provided for at least five (5) years after completion of the Agreement. or earlier tennination thereof. (c) If coverage is canceled or non -renewed. and not replaced tvith -11- another claims made policy form with a "Retro Date" prior to the effective date of the Agreement, the Company shall purchase "extended reporting" coverage for a minimum of five (5) years after completion of contract work. (d) A copy of the claims reporting requirements shall be submitted to the City for review. E. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A:VI1 if admitted. If Pollution Liability Insurance is not available from an "Admitted" insurer, the coverage may be written by a Non -admitted insurance carrier. A Non -admitted Company shall have an A.M. Best's rating of A:X or higher. F. Verification of Coverap-e. Company shall furnish the City with a Certificate of Coverage verifying the required insurance policies and coverage, and shall provide City with portions of the insurance policies or endorsements of such policies satisfying the requirements of Section 8.4, to the reasonable satisfaction of City. Upon City written request, Company shall provide City with certified copies of the required insurance policies and pertinent endorsements. within thirty (30) days after City's request. G. Policv Obligations. Company's indemnity and other obligations shall not be limited by the foregoing insurance requirements. H. Material Breach. If Company, for any reason. fails to maintain insurance coverage which is required pursuant to this Agreement, the same shall be deemed a material breach of this Agreement. City, at its sole option, may terminate this Agreement and obtain damages from Company resulting from said breach. Alternatively, City may purchase such required insurance coverage, and without further notice to Company, City may deduct frorn sums due to Company any premium costs advanced by City for such insurance. These remedies shall be in addition to any other remedies available to the City. 9. Indemnitv and Insurance for JPA. Company agrees to indemnify the JPA and its members to the same extent that Company has agreed to indemnify City under Sections 7 of this Agreement, and to provide the JPA and its members the same degree of insurance coverage provided the City under Section 8 of the Agreement, including but not limited to naming the JPA and its members as additional insureds under such coverage provided to the City. The Company shall provide the JPA, upon request, with certificates and endorsements reflecting such coverage. 10. Status of Companv. A. Company is and shall at all times remain a wholly independent contractor and not an officer or employee of City. Company has no authoritx to bind City in any manner or to incur any obligation. debt or liability of any kind on behalf of or against City. whether by contract or otherwise. unless such authority is expressly conferred under this A-reement or is otherwise expressly conferred in NNTitina by City. B. The personnel performing the services under this Agreement on behalf of Company shall at all times be under Company's exclusive direction and control. Neither City, nor any elected or appointed boards, officers, officials, employees or agents of City, shall have control over the conduct of Company or any of Company's officers, employees or agents, except as provided in this Agreement. Company warrants that it shall not at any time or in any manner represent that Company or any of Company's officers, employees or agents are in any manner officials, officers, employees or agents of City. C. Neither Company, nor any of Company's officers, employees or agents, shall obtain any rights to retirement, health care or any other benefits which may otherwise accrue to City's employees. Company expressly waives any claim to any such rights or benefits. D. Company shall obtain City's written approval before utilizing any subcontractors to perform any services under this Agreement. 11. Miscellaneous. A. Entiretv of Contract. This Agreement, constitutes the entire agreement between the parties relating to the subject of this Agreement and supersedes all previous agreements, promises, presentations, understandings and negotiations, whether written or oral, among the parties with respect to the subject matter hereof. No modification, amendment, supplement to, or waiver of this Agreement, or any of its provisions, shall be binding on the parties unless made in writing and signed by such parties. B. Severability_ . In the event any one or more provisions of this Agreement shall for any reason be held to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall be unimpaired, and the invalid, illegal or unenforceable provisions shall be replaced by a mutually acceptable provision, which, being valid, legal and enforceable, comes closest to the intention of the parties underlying the invalid, illegal or unenforceable provision. C. Assignment. This contract may only be assigned by Company to an Affiliate entity that controls, is controlled, or under common control of Company. "Control" means the direct or indirect ownership of more than fifty percent (50%) of the ownership and voting interests in the ordinary direction of the entity's affairs. Despite any other provision of this contract, the Company cannot assign this contract to an Affiliate without the express written consent of the City, which consent shall not be unreasonably withheld. D. Waiver. No waiver of any term or condition of this Agreement or any breach of this Agreement, or any part thereof, shall be effective unless expressed in writing and signed by the party to be bound, and shall not be deemed a NNaiver of any other term or condition of this Agreement. or if any subsequent breach of this Agreement or any part thereof. E. No Joint Venture. The Company is an independent contractor of the City with regard to the subject matter of this Agreement and nothing herein expressed or implied is intended or shall be construed to create a partnership. joint venture, agency or employment relationship among the parties hereto. -13- F. Third Parties. Except as provided in Sections 5 and 9, nothing herein express or implied is intended or shall be construed to confer upon or give any third person any rights or remedies pursuant to this Agreement and no party hereto shall be liable to any third person for the acts or omissions of any other party. G. Termination. Notwithstanding anything stated to the contrary herein, if Company should fail to perforin any of its material obligations hereunder, within the time and in the manner herein provided, or otherwise violate any of the material terms of this Agreement, City may immediately terminate this Agreement by giving Company written notice of such termination, stating the reason for such termination. In such event, Company, shall be entitled to receive as frill payment for services rendered prior to the effective date of the termination of the Agreement in accordance with Section 5, less the amount of any damages sustained by City by virtue of Company's breach of the Agreement. In addition, City may terminate this Agreement upon the effective date of the termination of the Agreement between the City and the JPA which provides the City's funding for this Agreement, by giving Company written notice of the termination of such Agreement, provided that Company shall be entitled to receive full payment for services rendered prior to the termination of such Agreement. II. Headinis. The section headings contained in this Agreement are for purposes of reference only and shall not affect the meaning or interpretation of this Agreement. I. Notices. All notices and other communications required or permitted to be given under this Agreement, including any notice of change of address, shall be in writing and given by personal delivery, or deposited with the United States Postal Service, postage prepaid, addressed to the parties intended to be notified. Notice shall be deemed given as of the date of personal delivery, or if mailed, upon the date of deposit with the United States Postal Service. Notice shall be given as follows: CITY City Manager City of San Rafael P.O. Box 151560 (1400 Fifth Avenue) San Rafael. CA 94915-1560 415-459-2242 COMPANY President Marin Recycling R Resource Recot cry Association 565 Jacoby Street San Rafael. CA 94901 415-485-1509 -14- With a Copv To: City Attorney City of San Rafael P.O. Box 151560 (1400 Fifth Avenue) San Rafael, CA 94915-1560 415-485-3109 J. Governiiw Law. This agreement shall be governed by and construed in accordance with the laws of the State of California. K. Closure Plan. Company shall undertake and complete the requisite closure process for the tlllWF. Except as otherwise provided herein, Company shall be responsible for., and shall assume all cost of closure for the IIHWF as required by California Code of Regulations. Title 22. Chapter 15, Article 7, Section 66265.110 et seq., and Chapter 45. Article 1, Section 67450.30 et seq., and all applicable federal and state laws and regulations. (1) $50,000 of JPA funds has been collected by City and placed aside for payment of the costs in the event of HHWF closure. (2) Closure cost beyond the available $50,000 shall be the sole responsibility of Company. (3) Company shall assure City that it has met all regulatory requirements in regards to closure of the III-IWF. -15- EN' WITNESS WHERFEGF�- &�-- pzifiesh-:2�n �-Lave exelzunzd thills Agrice-ment as of dile date set forth above. CITY OF SAN RAEL AlARIN RECYCLING & RESOURCE R-WOVERY, ASSOCIAUP-DN' 1 s AR NANCY MACKLE, City Manager '1�SEP 3uard ATT�ST: APPROVED AS WORM: ESTfr--R C. BEIRNE, City Clerk- Cpl Couns'I fe, '`cerin Recyclin. gg Resource Re*160vleq, Association APPROVED AS TO FORM: ROBERT F- E-PSTE-lW,,, City Attomey EXHIBIT "A" HHWF OPERATING SCHEDULE 1. Operating Schedule for the receipt of HHW and CESQG: A. The hours of operation are 8:00 am to 3:30 pm, with the understanding that employees will need an additional one half hour for cleanup and closure. B. The days of operation are Tuesday through Saturday, except for the following Holidays: 4th of July, Thanksgiving, Christmas and New Year's Day. 2. Review of Operating Schedule The Operating Schedule as set forth above may be modified from time to time as follows: A. By agreement of the parties, following consultation with the JPA, which shall occur at least annually prior to the commencement of a fiscal year, or B. Upon City's determination that a fiscal or other emergency justifies a modification, following City's consultation with the JPA, and City's giving reasonable advance written notice to Company of the modification in the Operating Schedule and the period of the modification. Exhibit A EXHIBIT "B" UN -APPROVED HAZARDOUS WASTE The following un -approved hazardous waste shall not be accepted at the HHWF: 1. Radioactive wastes. 2. Infections wastes. 3. Biohazard wastes. 4. Explosives. 5. Ammunition. 6. Hard shell compressed gas cylinders. 7. Laboratory waste. Exhibit B EXHIBIT "C" PUBLIC EDUCATION 1. Company shall have a public education program concerning the HHWF and the Door -to - Door Household Universal Waste Pick-up Program which shall include the distribution of information as follows: A. An advertised "Hazardous Waste Hotline" telephone line answered by a Company employee during HHWF operation hours, with an answering machine on such telephone line operable at all other times to take messages for a response during operation hours. B. Articles in local papers at least twice a year. C. Flyers, handouts or newsletters distributed at least twice a year throughout the Approved Service Area. D. Handouts at the HHWF continuously. 2. In order for the public information program to succeed, efforts shall be made to reach all Approved Service Area audiences. Public Information shall address the needs of various groups (e.g., parents, children. merchants and neighborhood associations). 3. HHWF workers shall be trained in customer relations. Multilingual (English and Spanish) workers shall be available at the HHWF and shall be trained to answer Participants questions, including questions about questionnaires, forms, and operations of the HHWF. HHWF employees shall encourage Participants to reduce the amount of hazardous waste they generate and to tell their friends and neighbors about the HHWF. 4. Promotional materials, such as magnets printed with the slogans such as "My Garbage is Toxic Free", or ball-point pens or other writing instruments advertising the HHWF telephone number shall be distributed on a regular basis to Participants and at public events and venues in the Approved area. Promotional materials shall also be provided to the City and the JPA for distribution to the public. 5. The City may provide environmental management public education. Exhibit C EXHIBIT 64D99 DOOR -to -DOOR HOUSEHOLD UNIVERSAL WASTE PICK-UP PROGRAM 1. Company will operate a Door -to -Door Household Universal Waste Pick -Up Program by collecting from residences and transporting to the HH WF for disposition along with other Approved Hazardous Waste received at that facility, the following Universal Waste products: • Electronic devices • Batteries • Fluorescent tubes and bulbs • MerCUry-containing equipment • CRTs • Aerosol cans In addition to Universal Waste, the scope of the pick-up program also includes the following approved hazardous waste products: *Motor Oil 0 Oil Filters 2. The Door -to -Door Household Universal Waste Pick -Up Program shall be provided to residents by appointment only. Residents shall be permitted to make an appointment by calling the Company's advertised Household Hazardous Waste Hot Line phone number and speaking to a Company attendant during the III-IWF operating hours, or by leaving a message outside operating hours on an answering machine maintained by Company on the Hot Line. Company shall return calls left on the Hot Line answering machine before the end of the work day following their receipt. 3. City and Company shall evaluate the effectiveness of the Door -to -Door Household Universal Waste Pick -Up Program within one year from its inception, and each year thereafter. 4. Company shall assure that all Door -to -Door Household Universal Waste Pick -Up Program Z__ operations are conducted in a safe manner and in accordance with local, state and federal regulations regarding the collection, transportation., storage and disposal of such waste. 5. Company shall prepare a written operational plan for the Door -to -Door Household Universal Waste Pick -Up Program for review and approval by the City within 60 days of the commencement date of this Agreement. 6. The Company shall offer pick-ups at customer residences Linder the Door -to -Door Household t T Aliversal Waste Pick -Up Program, by appointment. Exhibit D 7. Company shall track and maintain records, and submit quarterly reports to the City, regarding the Door -to -Door Household Universal Waste Pick -Up Program, including total hours worked by each Company employee participating in the Program, equipment and materials used, type and quantity of Universal Waste received, and number of households served per day. 8. In January 2013, the Company shall provide a written report to the City and JPA on the first six months of operations of the initial Door -to -Door Household Universal Waste Pick - Up Program in San Rafael. The details required in the report will be determined while creating the annual budget for fiscal year 2012-13. The report is intended to provide sufficient information so that the City and JPA may consider the future of the program and the feasibility of expanding the program to other municipalities and jurisdictions. Exhibit D EXHIBIT "E" COMPENSATION PROCEDURES 1. The Company shall submit a detailed monthly invoice in a form to be mutually agreed upon by the City and the Company. Such invoice shall be submitted by the last day of the month following the month for which the costs and expenses were incurred. The invoice shall be due and payable by the City no later than 30 days after receipt. 2. The City shall not compensate the Company for any cost increases and/or services rendered beyond the amounts specified for Company in the annual 11F[W program budget, except Where the increased services and additional compensation has been agreed to in advance in a writing between the City and Company, and approved by the JPA. All parties recognize that the City needs to and shall obtain approval for each upcoming year's I­lHW Program Budget from the JPA Board prior to authorizing company to proceed with continuing operations of the H I IW program. 3. The following general categories of expenses are approved for reimbursement tinder this Agreement and will be included in the annual HHW program budget subject to approval by the JPA: A. Direct labor expenses for personnel working for the Company at the HF[WF or the Door -to -Door Household Universal Waste Pick-up Program for their time providing Z:1 services under this Agreement. Expenses shall include regular wages, sick pay, vacation pay, medical insurance, workers compensation insurance, retirement benefits, and payroll taxes. but shall exclude overtime pay and holiday pay. B. Company's rental expenses for the 13,755 square feet of ]eased Hfl'A'F at the rate of $0.50 per month per square foot ($6.877.00) for the first year, as adjusted annually thereafter on the anniversary of the Agreement by the change in the Consumer Price Index, All Urban Consumers, for the San Francisco, Oakland, San Jose Metropolitan area. C. Legal and professional fees directly related to services provided tinder this contract. D. Expenses related to direct labor personnel training & education (including travel, meals. lodging, etc.) required to provide services Linder this Agreement. Exhibit E E. Equipment rental or other charges incurred for equipment used to provide services under this Agreement F. Waste disposal costs for the transportation and ultimate disposal of the Approved Hazardous Waste collected under this Agreement. G. Supplies and materials used to collect and safely consolidate materials prior to transport. H. Protective and safety gear used by the employees. 1. Other materials and supplies necessary to provide services under this Agreement. J Advertising, promotion and administrative costs related to services provided Linder this Agreement. K. Insurance specifically related to the HHW and CESQG programs. 4. The Company shall be allowed a profit calculated by applying an operating ratio of 90.5% to the expenses eligible for reimbursement, not to include the expenses listed below. The profit shall be calculated in the following manner (assume costs and expenses of $100,000 for the month). Operating Costs — Operating Ratio — Operating Costs = Profit $100,000 -- .905 = $110,497 - $100,000 = $10,497 profit Rental expenses for the HHWF shall not be included in the Operating Ratio Profit Formula. 5. The Company shall submit to City within the month following the completion of each fiscal year a Report detailing the foregoing operating expenses approved for reimbursement and the associated profit, less revenues received 1rom Small Quantity Generator Waste fees, sales of recycled Approved Hazardous Waste, and BOP and other outside funding sources collected by the Company for operating the HHW program. Exhibit E CITY OF SAN RAFAEL INSTRUCTIONS: USE THIS FORM WITH EACH SUBMITTAL OF A CONTRACT, AGREEMENT, ORDINANCE OR RESOLUTION BEFORE APPROVAL BY COUNCIL / AGENCY. SRRA / SRCC AGENDA ITEM NO. DATE OF MEETING: January 17, 2012 FROM: Christopher Grav, Fire Chief DEPARTMENT: Fire DATE: December 29, 2011 TITLE OF DOCUMENT: Hazardous Waste Collection Program Aqreement Department Head (signature) (LOWER HALF OF FORM FOR APPROVALS ONLY) AP ROV A S COUNCIL IL /AGENCY AG TEM. CitMainger (si atu e) NOT APPROVED REMARKS: APPROVED AS TO FORM: City Attorney (signature)