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Home My WebLink AboutFD Paint Recovery Program; Paintcare Inc.CITY OF n, ;W % Agenda Item No: 6. a Meeting Date: December 2, 2013 SAN RAFAEL CITY COUNCIL AGENDA REPORT Department: Fire Prepared by: Christopher Gray, Fire Chief'City Manager Approval:. r SUBJECT: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL APPROVING AND AUTHORIZING THE CITY MANAGER TO EXECUTE THE CALIFORNIA ARCHITECTURAL_ PAINT RECOVERY PROGRAM COLLECTION FACILITY AND WASTE FAINT MANAGEMENT SERVICES, AGREEMENT WITH PAINTCARE, INC. RECOMMENDATION: Staff recommends that the City Council adopt the Resolution approving and authorizing the City Manager to execute the California Architectural Paint Recovery Program Collection Facility and Waste Paint Management Services Agreement with PaintCare, Inc. BACKGROUND: The collection and disposal of Household Hazardous Waste (HHW) in Marin County, except for Novato, is accomplished through a three stakeholder partnership, as follows: The funding source for the HHW Program is the Marin County Hazardous and Solid Waste Management Joint Powers Authority (JPA), which represents every jurisdiction in Marin County, except for Novato. Marin County has one permanent HHW collection facility, which is located in San Rafael and operated by the Marin Recycling and Resource Recovery Association under an Agreement with the City. The City of San Rafael holds the required permits for the permanent HHW Facility and for temporary collection events that are held annually by the Fire Department in West Marin. The Fire Department also provides management oversight of the HHW Program. The three stakeholder partnership is memorialized through resolutions and agreements that have been approved the City Council beginning in 1995. October 19, 2012, marked the first day of the California Paint Stewardship Program established by a law, AB 1343 (2010) by Assembly Member Jared Huffman, that requires paint manufacturers to develop a take back system for leftover paint from household and commercial consumers. The legislation ensures environmentally responsible end -of -life management for leftover architectural paint while relieving local jurisdictions of the economic burden of post -consumer paint management. PaintCare, Inc. is the program manager of the California Architectural Paint Recovery Program as set forth by California Public Resources Code 48700-48706. Assembly Member Huffman stated that the California PaintCare program will be particularly helpful to consumers and local governments: "This is an important program that will make paint recycling more convenient for Californians, reduce the financial burden on local governments. and protect the environment. It allows industry to take the lead in developing a safe and reliable system for the recovery and proper management of leftover paint. It's a win win win." FOR CITY CLERK ONLY File No.: Council Meeting: Disposition:f365,i� SAN RAFAEL CITY COUNCIL AGENDA REPORT / Pa, e 2 Accordingly, to fulfill its obligations under the Law, PaintCare, Inc. must contract with jurisdictions to manage leftover paint products. In FY 2012/13, approximately 635,000 pounds of latex and oil-based paint were collected through the HHW Program, which accounted for approximately 43% of the program's total waste volume. ANALYSIS: In order to take advantage of the benefits associated with the California Architectural Paint Recovery Program, the City of San Rafael desires to enter into an agreement with PaintCare, Inc. The PaintCare program will provide collection containers, transportation, recycling and proper disposal of post -consumer leftover paint for no cost to the HHW Program. Partnering with the PaintCare, Inc. will mean very little operational changes at the HHW Facility and temporary collection events. All of the services that are part of the PaintCare agreement are already offered at some level at the HHW Facility. PaintCare, Inc. has contracted with the same transportation provider that currently transports paint for the HHW Program, so there will be no transporter changes under the proposed agreement. By entering into the PaintCare agreement the HHW Program would see a significant cost savings every year with minimal operational changes. The PaintCare program will result in increased recycling and reuse of the leftover paint that is generated by residents of Marin County. PaintCare, Inc. also ensures that waste paint will be disposed of in the most environmentally responsible means available. The proposed PaintCare Agreement is for a minimum period of two years from the date of the Agreement, with annual renewals thereafter unless either party elects to terminate the Agreement upon 60 days advance notice to the other party before the end of the renewal term, but in no event will the agreement extend beyond June 30, 202.0 without the written consent of both parties. City staff has spent more than a year negotiating modifications to the terms of the proposed Agreement with PaintCare. Inc. and City staff are now satisfied with the form of the proposed Agreement. In addition, City staff have reviewed the proposed Agreement with staff of both the JPA and the Marin Recycling and Resource Recovery Association. and they have advised City staff that they have no objections to the Agreement. ENVIRONMENTAL REVIEW: It has been determined that the Resolution and PaintCare Agreement are covered by the 'general rule' that the California Environmental Quality Act (CEQA) applies only to projects which have the potential to cause a significant physical environmental impact. Pursuant to CEQA Section 15061(b)(3), the Resolution and PaintCare Agreement are not subject to environmental review. FISCAL IMPACT: There will be no fiscal impact to the City. Based on the FY 2012/13 volumes of paint handled by the HHW Program, staff estimates the JPA may realize savings of up to $300,000 annually as a result of implementing the PaintCare agreement. OPTIONS: The City Council's options are (1) to adopt the Resolution and approve the PaintCare Agreement as recommended by staff, or (2) to not approve the Resolution or the PaintCare Agreement, which staff does not recommend. ACTION REQUIRED: Staff recommends that the City Council adopt the Resolution authorizing the City Manager to execute the California Architectural Paint Recovery Program Collection Facility and Waste Paint Management Services Agreement with PaintCare Inc. Attachment: PaintCare Agreement RESOLUTION NO. 13654 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL APPROVING AND AUTHORIZING THE CITY MANAGER TO EXECUTE THE CALIFORNIA ARCHITECTURAL PAINT RECOVERY PROGRAM COLLECTION FACILITY AND WASTE PAINT MANAGEMENT SERVICES AGREEMENT WITH PAINTCARE, INC. THE CITY COUNCIL OF THE CITY OF SAN RAFAEL RESOLVES as follows: WHEREAS, the City of Rafael ("City") is a Charter City, which under existing agreements provides the management oversight of the Household Hazardous Waste Program for Marin County, except for Novato; and WHEREAS, the City's Household Hazard Waste Program includes the collection of leftover paint products; and WHEREAS, PaintCare Inc. ("PaintCare") is the program manager of the California Architectural Paint Recovery Program (the "Program"), as set forth by California Public Resources Code §§ 48700 — 48706 (2010); and - WHEREAS, PaintCare enters into agreements with jurisdictions having household hazardous waste collection programs for the purpose of collecting leftover paint products; and WHEREAS, PaintCare desires to obtain the services of the City for the collection of paint products in Marin County, except for Novato; and WHEREAS, the City of San Rafael Fire Department holds permits to operate collection facilities in Marin County, except for Novato, and desires to participate in the Program; and WHEREAS, City staff and PaintCare have negotiated an agreement with terms that are acceptable to City and PaintCare for services associated with the collection of paint products; and WHEREAS, City staff estimates that participating in the Program may result in cost recovery and savings for the Household Hazardous Waste Program of up to approximately three hundred thousand dollars ($300,000) annually. NOW THERFORE, BE IT RESOLVED that the City Council of the City of San Rafael approves and authorizes the City Manager to execute the California Architectural Paint Recovery Program Collection Facility and Waste Paint Management Services Agreement with PaintCare, Inc. in the form attached to the Staff Report prepared in connection with this Resolution and on file with the City Clerk. 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 Monday, the 2nd day of December, 2013 by the following vote, to wit: AYES: COUNCILMEMBERS: Bushey Lang, Colin, Connolly, McCullough & Mayor Phillips NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None ESTHER C. BEIRNE, City Clerk CALIFORNIA ARCHITECTURAL PAINT RECOVERY PROGRAM 1500 Rhode Island Ave, NW Washington DC 20005 (855)724-6809 California Architectural Paint Recovery Program Collection Facility and Waste Paint Management Services Agreement Between PaintCare Inc. Im City of San Rafael TABLE OF CONTENTS RECITALS.......................................................................................................................2 ARTICLE 1 - DEFINITIONS............................................................................................2 ARTICLE 2 - TERM OF AGREEMENT...........................................................................4 ARTICLE 3 - GENERAL OBLIGATIONS OF THE CITY.................................................5 ARTICLE 4 - REPRESENTATIONS AND WARRANTIES..............................................7 ARTICLE 5 - GENERAL OBLIGATIONS OF PAINTCARE.............................................7 ARTICLE 6 - TITLE AND RISK OF LOSS.......................................................................8 ARTICLE 7 - CONSIDERATION AND PAYMENT..........................................................9 ARTICLE 8 - AUDIT AND INSPECTION RIGHTS OF CITY AND PAINTCARE ...........11 ARTICLE 9 - INDEMNIFICATION.................................................................................11 ARTICLE 10 - INSURANCE..........................................................................................12 ARTICLE 11 -TERMINATION OF AGREEMENT........................................................14 ARTICLE 12 - ASSIGNMENT AND SUBCONTRACTING............................................15 ARTICLE 13 - FORCE MAJEURE................................................................................15 ARTICLE14 - NOTICES...............................................................................................16 ARTICLE 15 - INDEPENDENT CONTRACTOR STATUS............................................16 ARTICLE 16 - DISPUTE RESOLUTION.......................................................................17 ARTICLE 17 - COMPLIANCE WITH LAW....................................................................17 ARTICLE 18 - SAFETY, HEALTH, AND ENVIRONMENTAL PROTECTION; RELEASES OF HAZARDOUS SUBSTANCES; EMERGENCY RESPONSE ...............18 ARTICLE 19 - CONFIDENTIALITY/PUBLICITY...........................................................19 ARTICLE 20 - MISCELLANEOUS PROVISIONS.........................................................19 ATTACHMENT A: SCOPE OF WORK.........................................................................23 ATTACHMENT B: CALIFORNIA ARCHITECTURAL PAINT RECOVERY PROGRAM COLLECTION FACILITY GUIDELINES.........................................................................25 ATTACHMENT C: PRICING.........................................................................................47 ATTACHMENT D: COLLECTION FACILITY INFORMATION......................................48 ATTACHMENT E: MODEL INVOICE............................................................................51 -1- CALIFORNIA ARCHITECTURAL PAINT RECOVERY PROGRAM AND WASTE PAINT MANAGEMENT SERVICES AGREEMENT This Agreement is made on this day of 2013 ("Agreement") by and between the City of San Rafael, a Charter City ("City") and PaintCare Inc., a Delaware corporation ("PaintCare"). RECITALS Whereas, PaintCare is the program manager of the California Architectural Paint Recovery Program (the "Program"), as set forth by Cal. Public Resources Code §§ 48700 — 48706 (2010) (the "Legislation"); and Whereas, PaintCare desires to enter into agreements with hazardous waste and paint Collection Facilities for the purposes of Collecting Program Products (as defined below),- and elow);and Whereas, the City of San Rafael Fire Department holds permits to operate Collection Facilities and desires to participate in the Program by Collecting Program Products; and Whereas, PaintCare wishes to obtain the services of the City for the Collection of Program Products in Marin County, except for Novato; and Whereas, the City may desire, but is not required, to engage in Services that are part of the Program, including Loose Packing, Direct Reuse, Reprocessing, Bulking, and Onsite Reuse. Now, therefore, for and in consideration of the terms of this Agreement and the mutual promises and covenants contained herein, the City and PaintCare hereto agree as follows. ARTICLE 1 — DEFINITIONS 1.1 "Agreement" means this executed document, including attachments, setting forth the obligations of the parties. 1.2 "Bulking" means opening individual cans of Program Products and combining the latex paint into separate 55 gallon drums marked "Latex Paint" and the oil-based paint into a separate 55 gallon drums marked "Oil -Based Paint." 1.3 "Collect/Collected/Collection" means accepting Program Products from the public, and properly identifying with the information received at the time of Collection, and packing for transportation. 1.4 "Collection Activities' means the Direct Reuse, Reprocessing, Onsite Reuse, Bulking, and Loose Packing of Program Products. 1.5 "Collection Containers" means containers, Including 5 gallon buckets, 55 gallon drums, pallets, totes, roll -off containers, and all liners and dividers, which are -2- provided by PaintCare or its subcontractors to hold and transport Program Products. 1.6 "Collection Facility/Facilities" means the permanent Marin Household Hazardous Waste Facility (Marin HHW Facility), the Household Universal Waste Pick -Up Program and Temporary HHW Collection Events that are all operated by independent subcontractors under agreements with City. 1.7 "Day/Days" means any calendar day or calendar days, respectively, including weekends, State holidays and federal holidays unless otherwise expressly provided. To the extent a deadline as measured by a specified number of calendar days falls on a weekend, State holiday or federal holiday, the next business day shall be the applicable deadline. 1.8 "Direct Reuse/Direct Reusing" means selling or giving away of Program Products to the public without combining it with the Program Products from other individual cans and without removing it from its original container. 1.9 "Effective Date" means the date that the parties' obligations begin under this Agreement. The Effective Date may be a date other than the date the Agreement is signed by the parties. The Effective Date for this Agreement is January 1, 2014. 1.10 "HHW" means household hazardous waste. 1.11 "Including" means "including but not limited to." 1.12 "Indemnified Parties" has the meaning as used in Article 9. 1.13 "Law" means all existing and future federal, State, and local statutes, laws, codes, ordinances, decrees, rules, regulations, requirements, and orders, of any governmental authority, entity, or agency whether federal, State, municipal, local, or other government body or subdivision, including those relating to unemployment compensation, worker's compensation, disability, taxes, worker and public health and safety, the environment, and the Program. 1.14 "Loose Pack/Loose Packing" means placing Program Products into Collection Containers provided by PaintCare or its subcontractors for pick up by Transportation Providers. 1.15 "Materials and Activities" means materials, supplies, Collection Containers, tools, vehicles, equipment, labor, water, light, power, facilities, construction of any nature, supervision, and all other services, acts, activities, resources, transportation, and goods, necessary for the City and PaintCare to comply with and fully perform its obligations under the Agreement. 1.16 "Non -Program Products" means products not covered by the Program. 1.17 "Onsite Reuse" means the onsite reuse of Program Products on the premises of the Collection Facility. 1.18 "Post -Collection Activities" means the activities performed by PaintCare or its subcontractors, as described in this Agreement and Attachments hereto, including the facilitation of the pick-up of Program Products from Collection -3- Facilities, the transportation of Program Products, and facilitation of management of the end -of -life of those Program Products. 1.19 "Program Products" means the materials described in Section 3 of Attachment B, which is incorporated by reference as if set forth in full. 1.20 "Reprocessed/Reprocessing" means the blending or combining of acceptable Program Products, other than Bulking, at the Collection Facility for resale or to give away to consumers. 1.21 "Required Insurance" has the meaning as used in Article 10. 1.22 "Services" means the services described in this Agreement and in the Attachments hereto, including any and all Materials and Activities. 1.23 "State" means the State of California. 1.24 "Stockpile" means accumulating Program Products at the Marin HHW Facility for more than fourteen (14) Days. 1.25 "Temporary Collection Events" means an event hosted by the City to Collect HHW including Program Products at locations within Marin County, excluding Novato, as described in Attachment D: Collection Facility Information. 1.26 "Transportation Provider/Providers" means independent subcontractors hired by PaintCare to transport Program Products from the Collection Facilities. ARTICLE 2 — TERM OF AGREEMENT 2.1 The term of this Agreement shall commence on the Effective Date and shall remain in full force and effect for a period of two (2) years after the start date. 2.2 This Agreement shall be automatically renewed each year for additional one (1) year terms unless either party notifies the other in writing at least sixty (60) Days in advance of the renewal term commencement date that the Agreement shall not be renewed, provided the Agreement shall not, under any circumstances, be extended beyond June 30, 2020 without mutual agreement by both parties. Except for pricing, the consideration of each option year will be the same as the consideration during the previous contract year provided that the City's Fire Chief and PaintCare may agree in writing to a change in one or more of the prices to be paid by PaintCare as specified in Attachment C. The unit prices specified in Attachment C may be increased at any time as mutually agreed upon in writing by City Fire Chief and PaintCare. 2.3 If the Agreement is not renewed, or is terminated in accordance with Article 11 of this Agreement, unless otherwise instructed by PaintCare, the City, before the end of the term or the termination date of the Agreement, shall assemble all Collection Containers supplied by PaintCare whether or not full, and shall make them available for pick up at one of the City's Collection Facilities by a Transportation Provider. The parties shall cooperate with each other in good faith to ensure the orderly transition of the Services to any successor Collection Facility. M ARTICLE 3 — GENERAL OBLIGATIONS OF THE CITY 3.1 This Agreement applies to Program Products received at the Collection Facilities from California sources located within the geographical areas specified in Attachment D. In consideration of PaintCare's payments to the City for the Services that may be undertaken at the expense of PaintCare, the City agrees to provide management oversight of subcontractors performing the following services: a. Collection of Program Products, as follows: i. At the Marin HHW Facility; ii. At Temporary HHW Collection Events; iii. Through the Household Universal Waste Pick -Up Program. b. The Services in Attachment A: Scope of Work and Attachment B: Municipal Collection Facility Guidelines, both of which Attachments are incorporated by reference as if set forth in full, in accordance with the terms and conditions of this Agreement; c. Collection Facility operations, including: Day-to-day and critical decisions regarding the Services including the Collection, identification, handling, sorting, Direct Reuse, Loose Packing, Reprocessing, Bulking, and Onsite Reuse of Program Products, and the undertaking, managing, and supervising of those activities, where applicable; and ii. Achieving compliance with applicable Law; and d. Securing the Collection Facility at all times when the facility is closed; and e. As appropriate, and in accordance with Attachment A: Scope of Work, management of all Collected Program Products gathered through the Collection Facilities only in the following ways and not dispose of Program Products in any other method without the prior written approval of PaintCare: i. By placing the acceptable latex paint or oil-based paint "as is" out for Direct Reuse; ii. By Loose Packing; iii. By Reprocessing; iv. By Bulking; or v. Onsite Reuse. 3.2 The City shall not charge fees on a per unit basis to a household customer for dropping off Program Products at a Collection Facility. The City's subcontractor and their subcontractors may charge a service fee to household customers for Collecting Program Products through the Household Universal Waste Pick-up Program. The City may charge a processing fee per visit and a fee per gallon of -5- Program Products for Conditionally Exempt Small Quantity Generators (CESQG) as specified in a City Resolution. 3.3 The City shall provide the Services at its own risk. 3.4 The City shall take every precaution to protect all public and private property during the performance of the Services. Any damage to PaintCare's or one of its subcontractors' property that is caused by City personnel, its subcontractor or equipment shall be promptly repaired to the condition existing before the damage or be replaced. All costs of repairs or replacements shall be solely the responsibility of the City. 3.5 Project deliverables, as identified in Attachment A: Scope of Work, paragraph 5, including notifications, reports, and cost and schedule commitments, are as integral a part of the Services as are the technical requirements. The City shall respond to all reasonable requests from PaintCare for preparation, access, review, and adjustment of these deliverables throughout the term of this Agreement. 3.6 The City shall perform the Services primarily at Collection Facilities and shall provide PaintCare and its representatives with reasonable access, as provided in Article 8.1, to all places under the City's subcontractors' control where the Services are performed in order for PaintCare to fulfill its rights under Article 8.1. 3.7 The City shall commence performing the Services under this Agreement on the Effective Date set forth in Article 1.9 and shall perform such duties continuously and diligently until they are completed in accordance with this Agreement. 3.8 The City shall inspect the Collection Containers upon arrival and determine if they are in proper condition for use. If the Collection Containers are not in proper condition, the City shall contact PaintCare immediately for repair or replacement of these Collection Containers. 3.9 In addition to those reports detailed in Attachment A: Scope of Work, the City shall for 3 years maintain records detailing: a. The quantity of Program Products transported by the Transportation Provider, in the form of a bill of lading and/or a manifest. The bill of lading and/or manifest shall include: i. The name, address, and telephone number of the originating Collection Facility, and the Transportation Provider; ii. The date on which the Transportation Provider accepts the Program Products from the Collection Facilities; and iii. The signatures of the Transportation Provider and the site supervisor of the originating Collection Facility. b. The quantity of paint managed through Direct Reuse, Onsite Reuse, or Reprocessing; c. Records of any inspections required by Law; l� d. Records of Appendix A to Attachment B: CESQG Certification, which is incorporated by reference as if set forth in full. The City may adopt its own version of the CESQG Certification but such waiver must specifically waive, release and hold harmless PaintCare Inc., PaintCare Inc's sole member, and all of their agents, employees, member companies, officers, directors, successors, assigns and attorneys from any and all liability and claims, and otherwise give equal protection to PaintCare's interests as described in Appendix A; e. Records of Appendix B to Attachment B: Direct Reuse and Reprocessed Paint Waiver, which is incorporated by reference as if set forth in full. The City may adopt its own version of the Direct Reuse and Reprocessed Paint Waiver but such waiver must specifically waive, release and hold harmless PaintCare Inc., PaintCare Inc's sole member, and all of their agents, employees, member companies, officers, directors , successors, assigns and attorneys from any and all liability and claims, and otherwise give equal protection to PaintCare's interests as described in Appendix B; and f. Employee Training records described in and required by Attachment B: the Municipal Collection Facility Guidelines. ARTICLE 4 — REPRESENTATIONS AND WARRANTIES The City and PaintCare represent, covenant, and warrant that: 4.1 The City is the Permit by Rule holder and is qualified to perform management oversight of Collection Facilities operated by City's subcontractors and has the capacity and authority to enter into this Agreement. 4.2 PaintCare is in good standing and is qualified to carry on business in California, and has the approval, capacity, and authority to enter into this Agreement. 4.3 Each party represents, covenants, and warrants that there is no other agreement that prohibits that party from performing the obligations under this Agreement. 4.4 Each party represents, covenants, and warrants that it contracts for or possesses the business, professional, and technical expertise, training, and Materials and Activities required to meet its obligations under this Agreement. 4.5 Each party represents, covenants, and warrants that it shall perform its obligations or require its obligations to be performed in a diligent, safe, and workmanlike manner that conforms with generally accepted industry and professional practices, and the care and skill ordinarily exercised; for such Services. ARTICLE 5 — GENERAL OBLIGATIONS OF PAINTCARE 5.1 PaintCare shall provide all Post -Collection Activities as described in this Agreement. Within fourteen (14) Days in rural areas and five (5) Days in urban areas of a request placed by City, PaintCare shall facilitate the pick-up from any Collection Facility any Program Products that have been Collected by City or its -7- subcontractor, and shall, at its own expense, transport those Products to intermediary locations, processors, or other final destinations that are part of the Program. Any other Program Products, including those subject to Direct Reuse, Onsite Reuse or Reprocessing under Attachment A, shall be handled as provided in that Attachment. 5.2 PaintCare shall provide all Collection Containers for Program Products to each of the Collection Facilities providing the Services. All Collection Containers supplied by PaintCare shall remain the property of PaintCare. 5.3 PaintCare shall have no authority to manage, direct, or supervise employees, representatives, subcontractors, or agents of the City, including how they perform the work and achieve compliance with applicable Law. 5.4 PaintCare shall reasonably provide City with Certificates of Disposal/Recycling for the Program Products Collected and disposed of by the PaintCare Program at large. PaintCare shall annually report the quantity of Program Products Collected from the City and the disposition of Program Products by type statewide which shall include Program Products Collected from the City, so that the City can establish the disposition of its wastes. This obligation shall survive termination of this Agreement. 5.5 PaintCare, its subcontractors and agents, shall treat, store and dispose of all Program Products Collected by City and picked up by Transportation Provider in accordance with all applicable Law. PaintCare, including any subcontractor or agent, shall maintain any facilities in accordance with all applicable Law. 5.6 PaintCare will contract with a Transportation Provider to arrange and provide for the ultimate disposition of the Program Products. PaintCare will arrange for the ultimate disposition of the wastes according to the following hierarchy: reuse, recycling, treatment/neutralize, incineration, stabilization/solidify/landfill, and, lastly, direct hazardous waste landfilling. 5.7 Nothing herein is intended nor shall be construed as creating any exclusive arrangement with the City. The City shall not restrict PaintCare from contracting with other entities under the Program, including other service providers with Collection Facilities in the jurisdictions identified in Attachment D. ARTICLE 6 — TITLE AND RISK OF LOSS 6.1 Under the terms of this Agreement, the City acknowledges that it is the generator and accepts the liability of the generator for Program Products received at the Collection Facilities and operations undertaken at the Collection Facilities in accordance with this Agreement. 6.2 PaintCare shall hire only Transportation Providers that have all required licenses and certifications under applicable Law to perform transportation services related to this Agreement. PaintCare will enforce the provisions of any subcontract to ensure performance by the subcontractor; and shall promptly replace any subcontractor that fails to perform the services. PaintCare will supply the City with a copy of the Transportation Services Agreement applicable to the City's -8- Collection Facilities and any subsequent amendments to such, absent confidential pricing information. Nothing contained in this Agreement or otherwise, shall create any contractual relationship between the City and the Transportation Providers and other companies that have entered into contracts with PaintCare. 6.3 The City shall not be liable for contamination permitted or caused by PaintCare or its subcontractors, including Transportation Providers, as a result of activities or operations by PaintCare or its subcontractors, including Transportation Providers. The City shall not be liable for any damage to persons, property or the environment as a result of any incident that occurs during or after the Transport of such Program Products by Transportation Providers from the Collection Facilities. 6.4 PaintCare shall not be responsible for any damage to persons, property or the environment as a result of the use, misuse, or failure of any equipment used by the City or by any of its employees or subcontractors, including the Collection Containers, even though such equipment is furnished to the Collection Facilities by PaintCare, prior to the acceptance for transport of such Program Products by Transportation Providers. ARTICLE 7 — CONSIDERATION AND PAYMENT 7.1 Consideration shall be provided to the City through the provision of Collection Containers, spill kits, the transportation and processing of Program Products and payment for Services. Payment for Services to the City shall be made in the manner set forth in this section and Attachment C, which is incorporated by reference as if set forth in full. Payment for Services shall be made in United States currency. 7.2 The City shall invoice PaintCare on a monthly basis electronically. Invoices furnished by the City under this Agreement must be in a form acceptable to the City and PaintCare. a. Each proper invoice shall include the information included in Attachment E: Model Invoice, which is incorporated by reference as if set forth in full, and shall state: i. The unique, identifying invoice number; ii. The specific work categories of Services provided for under the Agreement; iii. The specific quantity of units invoiced under each category, as appropriate; and iv. Additional information as agreed to in writing by the parties that is unique to the Services being performed by the City and its subcontractors. &s1 b. Each invoice shall include the signature of the City employee or its designee responsible for submitting the invoice and a certification that the invoice accurately reflects the work performed. 7.3 All amounts paid by PaintCare to the City are subject to audit by PaintCare. 7.4 All invoices shall be submitted to PaintCare by the agreed method at the address specified below. All payments made by PaintCare to the City shall be submitted at the address specified below. To: PaintCare Inc. Attn: Accounting Email Address: paintcare@bill.com To: City of San Rafael Fire Department Address: 1039 C St. San Rafael, CA 94901 7.5 PaintCare shall pay the full amount of City's invoice for Services within thirty (30) Days of the date that the invoice is electronically transmitted. In the event PaintCare has a good -faith objection to an invoice, PaintCare shall pay the undisputed amount pursuant to the terms of this Agreement and notify the City in writing of said objections and describe in reasonable detail the basis for the objections. During any such dispute, the City shall continue with its responsibilities under this Agreement and shall not stop providing the Services or terminate the Agreement; and PaintCare shall be obligated to make all payments invoiced by the City as specified in this section over which there is no good faith dispute. The City and PaintCare shall make a good faith effort to resolve such disputes. Where it is determined that the City has been overpaid, the overpayment will be credited to PaintCare on the following invoice(s) from the City. Where it is determined that the City has been underpaid by PaintCare, the amount owed to the City will be included on the next month's invoice from the City. 7.6 PaintCare's payment of an invoice shall neither relieve the City of any of its obligations under this Agreement nor constitute a waiver of any claims by PaintCare. 7.7 The City agrees that all documents, including invoices, billings, back-up information for invoices, and reports, submitted by the City to PaintCare to support amounts invoiced in connection with the Services will reflect the facts about the activities and transactions to which they pertain to the best of the knowledge of the City, and the City represents that PaintCare, for whatever purpose, may rely upon all such documents and the data therein as being complete and accurate. The City further agrees to promptly notify PaintCare upon discovery of any instances where the City becomes aware of any discrepancies in relation to documents under this Article 7.7. -10- ARTICLE 8 — AUDIT AND INSPECTION RIGHTS OF CITY AND PAINTCARE 8.1 PaintCare and its representatives shall have the right to (a) monitor and verify that the City has complied with this Agreement and the applicable Law; and (b) consult with the City about such compliance; provided, however, that PaintCare shall not, and affirmatively disclaims any ability to, control supervise or manage (1) the employees of the City; (2) the activities undertaken by the City in the performance of this Agreement; and (3) the means by which the City meets all requirements, including applicable Law. PaintCare may, upon a ten (10) Day advanced written notice delivered to the City, audit and inspect, with full access, the Collection Facilities during the Collection Facilities' hours of operation, unless more immediate access is required in the event of an emergency. 8.2 PaintCare and City agree to maintain and to make available to each other, during regular business hours, accurate books and accounting records relating to its Services under this Agreement. The City and PaintCare will permit each other to audit, examine, and make excerpts and transcripts, for any books or records, and to make audits of invoices, materials, and other data, not otherwise privileged or confidential, related to all other matters covered by this Agreement and shall maintain such data and records in an accessible location and condition for a period of not less than three (3) years from the date of the final report or final payment under this Agreement, as applicable, or until after final audit has been resolved, whichever is later. The City will include this requirement in any subcontract for City Services performed under this Agreement. 8.3 The City and its representatives shall have the right to (a) monitor and verify that PaintCare, its subcontracted Transportation Providers, and its subcontracted disposal, reprocessing or recycling providers have complied with this Agreement and applicable Law; and (b) consult with PaintCare about such compliance; including the manifesting, transporting, storage, processing and disposal of any Program Products transported from Collection Facilities for which the City is the generator or in any way legally responsible under applicable Law. City may, within 72 -hour notice, audit and inspect, with full access, PaintCare's contracted Transportation Provider and storage, processing and disposal facilities which handle the City's Program Products during the normal hours of operation. ARTICLE 9 — INDEMNIFICATION 9.1 The City's Indemnification of PaintCare. The City, its successors and assigns, agree to defend, indemnify, and hold harmless PaintCare and its sole member, as identified under its Certificate of Incorporation, and their member companies, officers, directors, employees, successors, assigns, attorneys, agents, and invitees ("Indemnified Parties") from and against all claims, suits, demands, obligations, losses, damages (including punitive or exemplary damages), liabilities, expenses (including legal fees, expenses of litigation, court costs, and reasonable costs of investigation), and causes of action of every kind whatsoever, whether based in contract, tort, statute, common law, or strict liability, which are claimed in any way to result from, arise out of, or are -11- connected with the City's performance of its obligations under this Agreement. This indemnification shall not apply to the extent any claims, suits, demands, obligations, losses, damages, liabilities, expenses, or causes of action are proven to result from the sole negligence or willful misconduct attributable to PaintCare. The foregoing indemnity shall include reasonable fees of attorneys, consultants and experts and related costs and PaintCare's costs of investigating any claims against PaintCare. 9.2 PaintCare's Indemnification of the City. PaintCare, its successors and assigns, agree to defend, indemnify, and hold harmless the City and its officers, directors, employees, successors, assigns, attorneys, volunteers, and subcontractors ("Indemnified Parties") from and against all claims, suits, demands, obligations, losses, damages (including punitive or exemplary damages), liabilities, expenses (including legal fees, expenses of litigation, court costs, and reasonable costs of investigation), and causes of action of every kind whatsoever, whether based in contract, tort, statute, common law, or strict liability, which are claimed in any way to result from, arise out of, or are connected with PaintCare's performance of its obligations under this Agreement, or the acts of its subcontractors including Transportation Providers in furtherance of this Agreement. This indemnification shall not apply to the extent any claims, suits, demands, obligations, losses, damages, liabilities, expenses, or causes of action are proven to result from the sole negligence or willful misconduct attributable to the City. The foregoing indemnity shall include reasonable fees of attorneys, consultants and experts and related costs and the City's costs of investigating any claims against the City. ARTICLE 10 — INSURANCE 10.1 PaintCare acknowledges and accepts that the City is self-insured, and is a member of the California Joint Powers Risk Management Authority (CJPRMA) through which the City has General Liability Coverage in excess of $500,000 up to $40 million pursuant to a Memorandum of Coverage, a copy of which will be provided to PaintCare upon written request. Within fifteen (15) Days after execution of this Agreement or twenty-four hours before Services under this Agreement commence, whichever date is earlier, the City will provide PaintCare with a Certificate of Coverage from CJPRMA naming PaintCare as an additional insured under that Memorandum of Coverage. 10.2 PaintCare also acknowledges and accepts that the City is self-insured for workers' compensation, as permitted by the California Department of Industrial Relations, and has an excess Workers Compensation Insurance policy with Employer Liability coverage up to $2 Million per occurrence over the City's self- insured retention of $750,000 per occurrence. The City will provide PaintCare with a Certificate of Insurance showing that coverage upon written request. NIVA 10.3 PaintCare also acknowledges and accepts that the City has an agreement with its subcontractor, Marin Recycling & Resource Recovery Association ("MRRRA"), dated January 26, 2012, for operation of the HHW Facility, a copy of which will be provided to PaintCare upon written request, pursuant to which MRRRA carries a Commercial General Liability Insurance policy with coverage in the amount of $3 Million per occurrence and $6 Million aggregate, a Workers' Compensation Insurance policy with statutory limits, and a Pollution Liability Insurance policy in the amount of $6 Million per occurrence and $6 Million aggregate, and that the City is a named insured under the Commercial General Liability policy and the Pollution Insurance policy. City will provide PaintCare with a copy of MRRRA's Certificate of Liability Insurance showing the aforementioned insurance coverages within fifteen (15) Days of PaintCare's written request. 10.4 PaintCare, at its own expense, shall procure and maintain on a continuous basis for the duration of this Agreement the following minimum levels of Required Insurance coverage as provided below: a. Commercial General Liability Insurance written on an occurrence basis covering personal injury, property damage, and bodily injury and death with limits not less than $1,000,000 each occurrence, and $2,000,000 in the aggregate. The Commercial General Liability Insurance carried pursuant to this Article 10.4(a) shall include: i) comprehensive form; ii) premises — operations, improvements, and equipment; iii) explosion and collapse hazard; iv) underground hazard; v) products/completed operations hazard; vi) contractual insurance; vii) broad form property damage; viii) independent contractors; ix) personal injury; and x) all liability assumed under and indemnities provided under this Agreement; b. Workers' Compensation Insurance as required by the State of California or other applicable Law; c. Environmental Pollution Liability Insurance with limits not less than $1,000,000 per occurrence and $1,000,000 in the aggregate for liability, bodily injury, property damage, and clean-up costs arising from the use, handling, storage, discharge, dispersal, release, escape, transportation, loading, unloading, or exposure to Program Products or Non -Program Products (collectively, the "PaintCare Required Insurance."). 10.5 PaintCare Required Insurance shall contain or be endorsed to name the City and its officers, directors, employees, successors, assigns, attorneys, volunteers, and subcontractors as additional named insureds. The foregoing Required Insurance shall contain or be endorsed to state that the Required Insurance is primary and is not additional to or contributing with any insurance carried for the benefit of the additional insureds. 10.6 PaintCare shall provide a certificate of insurance and any required endorsements complying with this article within fifteen (15) Days of execution of this Agreement or twenty-four (24) hours before Services under this Agreement commence, -13- whichever date is earlier demonstrating that the Required Insurance is in full force and effect and all premiums paid. The certificate of insurance shall have no disclaimers of liability. All Required Insurance shall be placed with insurers with rating comparable to A-, VIII, or higher, that are authorized to do business in the State of California, and that are satisfactory to City. Approval of the insurance by City will not relieve or decrease the liability of PaintCare hereunder. Certified copies of all binders of insurance, policies of insurance, and all endorsements thereto shall be provided to City within seven (7) Days of its written request for the same. 10.7 All PaintCare Required Insurance policies shall provide thirty (30) Days' advance written notice to City of reduction or nonrenewal of coverage or cancellation of coverage for any reason. 10.8 Should any of the Required Insurance be provided under a claims -made form, PaintCare at its sole expense, shall maintain such coverage continuously throughout the term of this Agreement, without lapse, and for a period of three (3) years beyond the expiration or termination of this Agreement, to the effect that, should occurrences during the contract term give rise to claims made after expiration or termination of the Agreement, such claims shall be covered by such claims -made policies. 10.9 Where PaintCare uses a subcontractor, including Transportation Providers, to complete any portion of this Agreement or to provide any Services, PaintCare shall ensure that the subcontractor provides insurance coverage as set forth herein and meeting all of the above requirements for the PaintCare Required Insurance, including naming the City and its officers, directors, employees, successors, assigns, attorneys, volunteers, and subcontractors as additional named insureds (with primary coverage) in conformity with the above provisions and provide a waiver of subrogation. ARTICLE 11 —TERMINATION OF AGREEMENT 11.1 Either party may terminate this Agreement or any Services under this Agreement upon prior written notice if the other party: a. has breached any material provision of this Agreement, and has failed to cure such breach within ten (10) Days of receiving written notification of such breach from the other party; or b. has violated applicable Law. The notice of termination shall specify the date on which this Agreement or Services terminates if not cured and the reasons for termination. 11.2 Either party may terminate this Agreement at any time upon one hundred and eighty (180) Days written notice to the other party, without cause. 11.3 This Agreement is contingent upon the appropriation of sufficient funding by the Marin County Hazardous and Solid Waste Management Joint Powers Authority (JPA) for the City obligations covered by this Agreement. If funding is reduced or deleted by the JPA for the City obligations covered by this Agreement. the City -14- may terminate this Agreement with no liability occurring to the City upon giving ten (10) Days written notice to PaintCare. 11.4 If this Agreement is terminated under this Article, PaintCare shall pay the City the full amount invoiced for the Services performed to the date of the termination of this Agreement. 11.5 At the time of termination of this Agreement, the City shall assemble all Collection Containers supplied by PaintCare whether or not full, and shall make them available for pick up at the Collection Facilities by a Transportation Provider. PaintCare shall ensure that all Collection Containers are picked up by a Transportation Provider no more than thirty (30) Days after termination of Agreement. ARTICLE 12 — ASSIGNMENT AND SUBCONTRACTING 12.1 This Agreement and the obligations and rights hereunder shall not be assignable, novated, or otherwise transferred by operation of law by either party without the express written consent of the other party, which consent shall not be unreasonably withheld. Any change of control by either party, shall be deemed an assignment that requires prior written consent. A "change of control" includes, among other items, any merger, consolidation, sale of all or substantially all of the assets or sale of a substantial block of stock of PaintCare. 12.2 The City and PaintCare may subcontract any part of their obligations under this Agreement. If the City or PaintCare does subcontract out any portion of the work, nothing contained in this Agreement or otherwise, shall create any contractual relationship between PaintCare or the City and the subcontractors, and no subcontract shall relieve either party of its responsibilities and obligations hereunder. Each party agrees to be as fully responsible to the other for the acts and omissions of its subcontractors and of persons either directly or indirectly employed by any of them as it is for the acts and omissions of persons directly employed by the party. 12.3 City's obligation to pay its subcontractors is an independent obligation from PaintCare's obligation to make payments to the City. As a result, PaintCare shall have no obligation to pay or to enforce the payment of any moneys to any subcontractor of the City. 12.4 PaintCare's obligation to pay its subcontractors is an independent obligation from PaintCare's obligation to make payments to the City. As a result, City shall have no obligation to pay or to enforce the payment of any moneys to any subcontractor of PaintCare. ARTICLE 13 — FORCE MAJEURE 13.1 Except for the obligation to pay for Services, any delay or failure of either party to perform its obligations hereunder shall be suspended if, and to the extent, caused by the occurrence of a Force Majeure. In the event that either party intends to rely upon the occurrence of a force majeure to suspend or to terminate -15- its obligations, such party shall notify the other party in writing immediately, or as soon as reasonably possible, setting forth the particulars of the circumstances. Written notices shall likewise be given after the effect of such occurrence has ceased. 13.2 "Force Majeure" means riots, wars, civil disturbances, insurrections, acts of terrorism, epidemics, acts of nature whose effects preventing safe passage of vehicles upon city, state or federal highways for a continuing period of not less than fourteen (14) Days and city, federal or state government orders, any of which is beyond the reasonable anticipation of the applicable party and which prevents performance of this Agreement, but only to the extent that due diligence is being exerted by the applicable party to resume performance at the earliest possible time. ARTICLE 14 — NOTICES 14.1 Except where otherwise expressly authorized, notice shall be by first class certified or registered mail, or by commercial delivery service issuing a receipt for delivery and addressed as set forth below, unless changed in writing by the party to whom the notice is being sent. Notice shall be effective upon delivery. To: PaintCare Inc. Attn: General Counsel Address: 1500 Rhode Island Ave, NW Washington DC 20005 To: City Manager City of San Rafael P.O. Box 151560 (1400 Fifth Avenue) San Rafael, CA 94915-1560 With a CopV To: City Attorney City of San Rafael P.O. Box 151560 (1400 Fifth Avenue) San Rafael, CA 94915-1560 ARTICLE 15 — INDEPENDENT CONTRACTOR STATUS 15.1 The parties intend that each party, in performing its obligations under this Agreement, is acting as an independent contractor and that each party will control the work and the manner in which it is performed. This Agreement is not intended and may not be construed to create the relationship between the parties of agent, servant, employee, partnership, joint venture, or association. -16- 15.2 Each party, or its subcontractors as appropriate, shall be liable and responsible for providing all compensation and benefits due to, or on behalf of, all persons performing work pursuant to this Agreement on that party's behalf or under that party's direction or control. Neither party shall have any liability or responsibility for the payment of any salaries, wages, unemployment benefits, disability benefits, Federal, State, or local taxes, or other compensation, benefits, or taxes for any personnel provided by or on behalf of the other party. 15.3 Each party understands and agrees that all persons performing work pursuant to this Agreement on that party's behalf or under the party's direction and control are, for purposes of Workers' Compensation liability, solely employees of that party and not employees of the other party. Each party, or its subcontractors, shall be solely liable and responsible for furnishing any and all Workers' Compensation benefits to its employees as a result of any injuries arising from or connected with any work performed by or on behalf of that party or its subcontractors pursuant to this Agreement. ARTICLE 16 — DISPUTE RESOLUTION 16.1 Both parties shall, in good faith, attempt to negotiate resolutions to all disputes arising out of this Agreement. If the dispute cannot be settled by good faith negotiations between the parties, PaintCare and City will submit the dispute to non-binding mediation. 16.2 Any disputes under this Agreement that are not disposed of by mutual agreement of the Parties may be decided by recourse to an action at law or in equity. Until final resolution of any dispute hereunder, both parties shall diligently proceed with performance of this Agreement. Any dispute over any question of fact or law arising under this Agreement shall be governed by the laws of the State of California. ARTICLE 17 — COMPLIANCE WITH LAW 17.1 The City and PaintCare shall comply with all Law applicable to this Agreement 17.2 Each party shall promptly notify the other in writing upon discovery of any material failure, or any allegation of any material failure, of either party or other persons or entities to comply with any applicable Law relevant to the performance of their obligations under this Agreement or any requirement of this Agreement. 17.3 Duties and obligations imposed by the Agreement, and rights and remedies available thereunder, shall be in addition to and not a limitation of duties, obligations, rights, and remedies otherwise imposed by applicable Law. -17- ARTICLE 18 — SAFETY, HEALTH, AND ENVIRONMENTAL PROTECTION; RELEASES OF HAZARDOUS SUBSTANCES; EMERGENCY RESPONSE 18.1 The City and PaintCare shall be responsible for safety, health, and environmental protection related to and in the performance of their obligations under this Agreement and shall take appropriate measures required by applicable Law and legal standards to avoid liability to: (a) provide and maintain safe, health - protective, and environmental -protective working areas at or in proximity to where the Services are performed, including adjacent areas, and (b) protect and safeguard (i) all persons at or in proximity to the Services, including those in adjacent areas, from risk or injury and danger to health, and (ii) property and equipment from damage or loss. 18.2 The City, and PaintCare where applicable, shall be aware of, and to the extent required by Law, comply with: (a) the requirements for household hazardous waste collection facilities pursuant to the California Health and Safety Code, sections 25218-25218.13; (b) all applicable Law governing the generation, handling, management, treatment, storage, or disposal of hazardous wastes; and (c) all applicable health, safety, and environmental Law, including the requirements of the U.S. Occupational Safety and Health Administration ("OSHA"), U.S. Environmental Protection Agency ("EPA"), delegated state programs authorized by OSHA and EPA, the California Department of Resources, Recycling, and Recovery, the California Environmental Protection Agency, the California Department of Toxic Substances Control, and applicable California certified unified program agencies. 18.3 Neither Party shall allow the release of hazardous substances, hazardous wastes, or hazardous materials that require a notification, cleanup, or response action under any applicable Law, including the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 6901 et seq., the Hazardous Materials Transportation Act, 49 U.S.C. § 1801 et seq., or Carpenter -Presley -Tanner Hazardous Substance Account Act, Cal. Health & Safety Code § 25300 et seq. 18.4 Each party shall immediately notify the other of any circumstance or occurrence during the performance of the Services that require reporting to any governmental authority under any applicable Law, including reporting to the National Response Center because of the release of a reportable quantity of hazardous substances pursuant to 42 U.S.C. § 9603 and Cal. Health & Safety Code 25507(a), and shall make such report immediately. Each party shall ensure that any such reports are made within the applicable time limits and shall not delay making such reports because of the inability to notify the other. 18.5 Prior to transport, in the event of any action or occurrence during the performance by City or its subcontractors of the obligations under the Agreement which causes or threatens a release of a hazardous substance, hazardous waste, or hazardous material into the environment which presents or may present an imminent and substantial endangerment to public health or welfare or the environment and/or requires cleanup or a response action under applicable -18- Law, the City shall immediately notify PaintCare and shall take all appropriate action to prevent, abate, minimize, and cleanup such release and endangerment in conformance with applicable Law including applicable cleanup standards. The City and not PaintCare shall be responsible for the costs of such action and any liability and damages of any type, including actual, incidental, consequential, and punitive damages, arising from any action or occurrence identified in this Article 18.5. The City shall not delay the undertaking of appropriate action because of the inability to notify PaintCare. 18.6 During and after transport, in the event of any action or occurrence during the performance by PaintCare or its subcontractors of the obligations under the Agreement which causes or threatens a release of a hazardous substance, hazardous waste, or hazardous material into the environment which presents or may present an imminent and substantial endangerment to public health or welfare or the environment and/or requires cleanup or a response action under applicable Law, PaintCare shall immediately notify the City and shall take all appropriate action to prevent, abate, minimize, and cleanup such release and endangerment in conformance with applicable Law including applicable cleanup standards. The City shall be not responsible for the costs of such action and any liability and damages of any type, including actual, incidental, consequential, and punitive damages, arising from any action or occurrence identified in this Article 18.6. PaintCare shall not delay the undertaking of appropriate action because of the inability to notify the City. ARTICLE 19 — CONFIDENTIALITY/PUBLICITY 19.1 The City and PaintCare acknowledge and agree that the City is a public agency subject to the disclosure requirements of the California Public Records Act. ARTICLE 20 — MISCELLANEOUS PROVISIONS 20.1 No Waiver. The failure at any time to enforce any provision of this Agreement or failure to exercise any right herein granted shall not constitute a waiver of such provision or of such right thereafter to enforce any or all of the provisions of this Agreement. 20.2 Selective Waiver. Either party hereto may waive any default by the other party under this Agreement by an instrument in writing to that effect and any such waiver shall not extend to any subsequent or other default by such party. No failure on the part of any party to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof. Either party may elect to selectively and successively enforce its rights hereunder, such rights being cumulative and not alternative. 20.3 Entire Agreement. This Agreement and all attachments and exhibits hereto, and all referenced documents, constitute the entire Agreement between the parties with respect to the matters herein, and integrates, merges, and supersedes all prior negotiations, representations, or agreements relating thereto, whether written or oral, except to the extent they are expressly incorporated herein. The 001 provisions of this Agreement and the accompanying document shall be construed and interpreted as consistent whenever possible. If any conflicts arise between the terms and conditions of this Agreement, and the terms and conditions of the attached exhibits or the documents expressly incorporated by reference, the terms and conditions of this Agreement shall be resolved in accordance with the following descending order of precedence: a. Attachment A: Scope of Work; b. The terms of this Agreement; c. Attachment B: Municipal Collection Facility Guidelines; d. Attachment C: Pricing, e. Attachment D: Collection Facility Information; and f. Attachment E: Model Invoice 20.4 Amendment or Modification. Unless otherwise provided herein, no amendments, changes, alterations, variations, or modifications to this Agreement shall be effective unless in writing and signed by the respective duly authorized officers or their designees of the parties hereto. 20.5 Governing Law. This Agreement is executed and intended to be performed in the State of California, and the laws of that State shall govern its interpretation and effect. 20.6 Severability. If any term, covenant, condition, or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby. 20.7 No Third Party Beneficiary. This Agreement is intended solely for the benefit of the parties hereto, and no third party has any right or interest in any provision of this Agreement or as a result of any action or inaction or any party in connection therewith. 20.8 Authorization. The representative(s) signing this Agreement on behalf of the parties, represent and warrant that each party has full power and authority to enter into this Agreement and to perform the obligations set forth herein, and that the representatives signing this Agreement, have the authority to execute this Agreement on behalf of the party and to bind the party so represented to its contractual obligations hereunder. 20.9 Survivability. The continuing obligations, rights and remedies of the parties under this Agreement, including those set forth in the sections relating to either party's representations and warranties (Article 4), title and risk of loss (Article 6), audit and inspection rights (Article 8), indemnification (Article 9), insurance (Article 10), independent contractor status (Article 15), dispute resolution (Article 16), compliance with the Law (Article 17), safety, health, and environmental protection releases of hazardous substances, emergency response (Article 18), and -20- confidentiality/publicity (Article 19) shall survive the expiration or termination of this Agreement. IN WITNESS WHEREOF, the parties have each caused this Agreement to be executed by its duly authorized representative effective on the day and year first set forth below. Authorized Signatory Authorized Signat6ry PaintCare Inc. City of San Rafael Print Name If Print Title Date ATTEST: ESTHER C. BEIRNE, City Clerk APPROVED AS TO FORM: ROBERT F. EPSTEIN, City Attorney Nancy Mackle Print Name City Manager Print Title Date:, -21- EXHIBITS: Attachment A: Scope of Work Attachment B: Municipal Collection Facility Guidelines Attachment C: Pricing Attachment D: Collection Facility Information Attachment E: Model Invoice -22- ATTACHMENT A: SCOPE OF WORK Services under the Program: 1) Manage all Collected Program Products gathered through the Collection Facilities only in the following ways and not dispose of Program Products in any other method without the written approval of PaintCare: a) Loose Packing; b) Direct Reuse; C) Onsite Reuse; d) Reprocessing; or e) Bulking. 2) Collect, properly identify and sort any Program Products and put these Program Products into Collection Containers to be picked up by Transportation Providers. 3) The City shall not Stockpile Program Products. 4) Provide to PaintCare a minimum of thirty (30) Days advance notice of any Temporary Collection Events conducted by the City that include the Collection of Program Products that require PaintCare or its Transportation Providers to attend in order to pick up the Program Products collected at the Temporary Collection Event. 5) The City shall provide the following reports to PaintCare on a monthly basis, within thirty (30) Days of the end of each month. Reports shall include: a) Date and location of any Temporary Collection Events held by or on behalf of the City; b) The number of Collection Containers of Program Products removed by PaintCare or its subcontractors by type (latex or oil-based) for each Temporary Collection Event and at each of the Collection Facilities; C) The number of containers of paint distributed for Direct Reuse to the public (this does not include the number of containers of paint that the public has not yet reclaimed); d) The number of gallons of paint Reprocessed and distributed to the public (this does not include the number of gallons of paint that the public has not yet reclaimed); -23- e) The number of 55 -gallon drums of latex paint that have been Bulked; f) The number of 55 -gallon drums of oil-based paint that have been Bulked; and g) The number of gallons of oil-based paint diverted for Onsite Reuse. h) The number of roll -off Containers of latex paint that have been Loose Packed. -24- ATTACHMENT B: MUNICIPAL COLLECTION FACILITY GUIDELINES -25- CALIFORNIA ARCHITECTURAL PAINT RECOVERY PROGRAM 1500 Rhode Island Ave, NW .h r Washington DC 20005 � " , r (855) 724-6809 www.PaintCare.org Municipal Collection Facility Guidelines Contents 1. PaintCare`' Collection Facilities ........................ --- ....................................... 27 2. Accepting Program Products.........................................................................31 3. What Is Acceptable .......................................... —........................................... 33 4. Operations... ................................................. ................................................ 34 5. Direct Reuse, Onsite Reuse and Paint Reprocessing.....................................36 6. Working with Transporters............................................................................38 7. Inspections and Records................................................................................39 8. Training and Safety........................................................................................40 9. Spill Response ........................................ --....... ............................................. 41 Appendices A. CESQG Certification........................................—....,......................................43 B. Direct Reuse and Reprocessed Paint Waiver.................................................44 C. Training Record for Collection Facility Staff....—...........................................45 D. Emergency Contact Information ............. —... ...................................... ......... .46 Contact Site Name: Marin Household Hazardous Waste Facility Information ---- -- - Site Address: 565 Jacoby St, San Rafael, CA 94901 Mailing Address (if different): Site Contact 1, Name/Phone: Patty Gorborinol(415) 485-5648 Site Contact 2. NomefPhone: Ron Piomboj(415) 990-2489 PaintCare Contact Name: Doria Kent PaintCare Contact PhonejEmoil: (530) 559-3274/dkent@paint.org Transporter Company and Contact Name: Philips Services Corp. (PSC)/ Priscilla Petersor, -26- Transporter Contact Phone/Email: (916) 351-0980 x2l5lpriscillo.peterson@pscnow.com riIPA rnntnrt Name/Phoma: Bilin Rnrnac//47 S) 499-70-85 Section 1 PaintCare° Collection Facilities Legislation In 2010, Governor Schwarzenegger signed Assembly Bill 1343 creating the California Architectural Paint Recovery Program. The new law requires paint manufacturers to develop and implement a program to Collect, transport, and process post -consumer paint and other architectural coatings to reduce the costs and environmental impacts of their disposal in California. The program's primary goals are to: (1) reduce the generation of post -consumer architectural coatings; (2) promote reuse/using up post- consumer architectural coatings; and (3) ensure proper recycling and disposal at their end -of -life. About PaintCare The law allows for the formation of a non-profit stewardship organization to implement the program. To serve this purpose, PaintCare Inc. was formed by the American Coatings Association (ACA), the non-profit trade association for the paint and coatings industry. PaintCare submitted a management plan to the California Department of Resources Recycling and Recovery (CalRecycle) on behalf of paint manufacturers in April 2012. The Department approved the Plan on July 19, 2012. The California program must begin 90 days after this approval — on October 19, 2012. Various studies have demonstrated that between 3 and 10% of all paint purchased goes unused. To capture this paint, PaintCare will pay for storage containers, transportation and recycling/proper disposal for leftover paint delivered to contracted Collection locations like yours. PaintCare will also conduct extensive public outreach about the Program, and promote your sites as a Collection Facility. Before the PaintCare Program ("Program"), California residents and businesses recycled or disposed of paint primarily through government-sponsored household hazardous waste (HHW) programs or through private hazardous waste management companies. The PaintCare Program increases recycling opportunities for California consumers by partnering with hundreds of retail and reuse stores throughout the State to serve as paint Collection Facilities, as well as by partnering with municipal programs like yours. PaintCare Once a contract is established between PaintCare and the City, the Program will Provides provide the following: Paint storage Collection Containers (e.g usually 1 cubic yard containers and 55 - gallon drums) Labels for paint Collection Containers Spill kit (upon request) Recordkeeping forms and/or log book -27- Poster identifying your site as a PaintCare Collection Facility Educational print materials for your customers Transportation and disposal/diversion of paint PaintCare Dos The Program does not provide personal protective equipment (PPE) or gear that may be Not Pro required by the U.S. Occupational Safety and Health Administration (OSHA) or California occupational and safety regulations for your place of work. It is your site's responsibility to provide appropriate PPE for your workplace. PaintCare has no authority and disclaims any responsibility to manage, direct, or supervise your employees, representatives, or agents, including how they perform the work and achieve compliance with applicable Law. PaintCare does not have responsibility for making day-to-day and critical decisions regarding the Services that you provide. , PaintCare collection facilities may be any of the following: Cc Municipal household hazardous waste collection facilities (permanent and temporary) Paint retailers including paint, hardware and home improvement stores, and reuse stores (i.e., stores that sell salvaged or excess building materials) Waste transfer stations, landfills, public works yards, and other appropriate, publicly accessible facilities we Below are general guidelines for a typical Collection Facility. However, we recognize that each location will have unique logistical and operational considerations. PaintCare Collection Facilities must make their own decisions and use their best judgment to operate in the safest manner possible in accordance with applicable Law. To be a Collection Facility, you must: Accept Program Products from participants during your regular advertised or posted operating hours Have appropriate signage that informs the public of the hours of operation Display the PaintCare or similar poster to identify you as a Collection Facility — this poster should be posted in a highly visible area, preferably at the entrance Have adequate space, staffing and training to Collect and store Program Products and consolidate them only in Collection Containers provided by or approved for use by PaintCare or its contractors to hold and transport Program Products Provide a secure space for empty and full Collection Containers Pack only Program Products into Collection Containers Schedule shipments of Program Products from your Collection Facility Maintain records Train staff to be familiar with the requirements and practices of this guide Have adequate comprehensive and/or commercial general liability insurance to cover potential risks and liability associated with activities on premises Know and comply with applicable federal, State and local Laws as they pertain to your Collection Facility and train staff accordingly — these may include zoning requirements for your activities, State permit requirements (air, hazardous waste, water quality, solid waste, storm water, CUPA) and OSHA requirements For additional information on State law regarding Collection of the Program Products, visit the Department of Toxic Substance Control's website at www.dtsc.ca.gov MGM Establish a sufficient, dedicated storage area for Collection Containers and Program Products. Collection Containers must include secondary containment to contain liquids in the event a can leaks while in storage; however, they should also be placed on an impermeable surface (e.g., concrete, asphalt, sealed wood floor) whenever possible. Store Collection Containers away from ignition sources. Place Collection Containers away from storm drains and floor drains. Protect Collection Containers from temperature extremes by storing them inside or under cover if possible. Mark the Collection Container with the date the first Program Product is placed in it and ensure that no Collection Container with content is stored for more than six (6) months, as required by applicable Law. If you store Collection Containers outdoors, you may need approval from your local fire or hazardous materials oversight agency. Storage area information should be included in your Hazardous Materials Business Plan (HMBP) if required by your local fire or hazardous materials oversight agency. The Collection Facility should be secured and locked when it is closed or not attended. Only Collection Facility staff and authorized government officials should have access to the Collection Containers and storage area. Use and Keep Collection Containers closed except when adding Program Products. Maintenance Of Collection Maintain enough space around Collection Containers to inspect for leakage and Containers emergency access. Do not overfill Collection Containers. Pack 5 -gallon buckets on the bottom layer of the Collection Containers for stability. Pack all Program Products (cans, buckets, bottles) upright and as tightly as possible in the Collection Containers to protect contents from shifting and leaking in transit. Use safe practices for handling, storage and management of Program Products. Use good housekeeping standards; keep paint storage areas clean and orderly. -30- Section 2 Accepting Program Products What, is It is an important responsibility for PaintCare Collection Facilities to only accept Archit ecturad Program Products for management under the PaintCare partnership. Section 3 sit includes the primary examples of architectural paint products accepted by the PaintCare Program ("Program Products") and paint or paint -related products not accepted by the PaintCare Program ("Non -Program Products"). Collection Facilities that accept Non -Program Products will be responsible for managing all Non -Program Products at the Collection Facilities' expense. Generally, architectural paints include latex and oil-based house paint, stains and clear coatings. The Program excludes anything that is (a) in an aerosol spray can, (b) intended and labeled "for industrial use," (c) mostly used in the manufacture of equipment, or (d) on a list of specifically excluded products for some other reason. Architectural paint is classified as either latex (water-based) or oil-based (alkyd) and the classification is important in order to decide how the product should be handled and recycled. Being able to tell the difference between latex and oil-based products is also important in determining which types of businesses can use the PaintCare Program (see next two sub -sections). Who Can Drop The Program accepts paint from the following: Off Program Products Households. Residents may drop off up to 15 gallons of any Program Products combined or up to 20 gallons of latex paint only. CESQG Businesses. These are businesses that generate less than 100 kilograms (about 27 gallons) of hazardous wastes per month. These businesses are called CESQGs for "Conditionally Exempt Small Quantity Generators." They are often small painting contractors or commercial property owners, but they can be any type of business as long as they do not generate more than 27 gallons of hazardous waste per month. CESQG businesses may drop off any Program Product, up to 27 gallons per month. -31- Each business is responsible for determining its own generator status under the Is a uusiapplicable Law. Qualtic When a business has Program Products to drop off, they must sign the CESQG Certification log, included in Appendix A, to verify that they are CESQGs and therefore qualified to use the Program. The log includes an explanation of what types of businesses qualify to use the Program. Once signed, you may accept up to 27 gallons of Program Products from a CESQG. Certification logs may be reviewed by PaintCare or government agencies and compared with a list of registered hazardous waste generators to see that only CESQG businesses are using the Program for their oil-based paint. If a business is a Large Quantity Generator or a Small Quantity Generator they do NOT qualify under our Collection agreements and they may not drop off any product at our D Collection Facilities, even if they only have latex paint. The Collection Facilities do not have the capacity to take unlimited latex paint. Carl Facilities Except for latex paint Collected through the Household Universal Waste Pick -Up Charge Fees Program, residential Program participants should never be charged a fee. HHW facilities may charge CESQG businesses fees for overhead and waste Collection and handling of Program Products as costs not covered through the PaintCare partnership. -32- Section 3 What Is Acceptable l ita iners cctabl Containers Program Products and Nuri -Pro rar Products Before accepting products from participants for management under the PaintCare program, Collection Facility staff must (1) check the product label to verify that it contains a Program Product, and (2) check the condition of the container for acceptance in the Program. The container must be 5 gallons in The container is larger than 5 size or smaller gallons Ar- P Interior and exterior paints: latex, acrylic, water-based, alkyd, oil- based, enamel (including textured coatings) Deck coatings and floor paints (including elastomeric) Primers, sealers, undercoaters Stains Shellacs, lacquers, varnishes, urethanes (single component) Waterproofing concrete/masonry/wood sealers and repellents (not tar or bitumen - based) Metal coatings, rust preventatives Field and lawn paints -33- Paint thinner, mineral spirits, solvents Aerosol paints (spray cans) Auto and marine paints Art and craft paints Caulking compounds, epoxies, glues, adhesives Paint additives, colorants, tints, resins Wood preservatives (containing pesticides) Roof patch and repair Tar and bitumen -based products 2 -component coatings Deck cleaners Traffic and road marking paints Industrial Maintenance (IM) coatings Original Equipment Manufacturer (OEM) (shop application) paints and finishes Section 4 Operations Participants must be assisted and supervised when they come to drop off Program Products. Collection Facility staff should greet participants and verify eligibility of the participant and their leftover paint products as Program Products. Examine*', _ Screen products to ensure that only the following are accepted: Product Container is 5 gallons in size or smaller Latex paint from households and CESQG businesses Oil-based paint from households and CESQG businesses IMPORTANT: Never allow the participant to open a product to see what is inside Screen products to ensure that the following are not accepted: Non -Program Products Program Products from SQG or LQG businesses Cc While the PaintCare Program intends to Collect as much Program Product as is Facility LIM tS available, we recognize that your Collection Facility may have storage limitations. PaintCare Collection Facilities, in agreement with PaintCare, may limit the amount of Program Products they accept from a customer. If you have a participant with a significant amount of Program Products that your location cannot manage, contact PaintCare directly for additional assistance. We may direct the participant to another PaintCare Collection Facility that can manage the large load or offer a direct pickup. -34- Refus Do not accept into the PaintCare program any containers that are larger than 5 naccr_pL s,jl gallons. Product When refusing a Program Product, Collection Facility staff must explain why the Program Product cannot be accepted (too large, from SQG/LQG, etc.). Storing and Place Program Products into Collection Containers immediately upon acceptance to Packing minimize the possibility of spills. Collection Place 5 -gallon containers at the bottom of Collection Containers to provide stability Containers for second layer of 1 gallon and smaller cans. Place all Collection Containers upright to prevent leaks or spills. Pack the Program Products as tightly as possible inside the Collection Containers. This helps to keep paint products from shifting during transit. If being stored outside, keep lids on Collection Containers to keep out rain. Make sure the Collection Container lid sits flat on top the Collection Container. All Program Products must be stored in Collection Containers at all times. Never overfill Collection Containers. Contact your local fire and/or hazardous materials oversight agency to find out if you need a Hazardous Materials Business Plan (HMBP) specific to your Collection Facility to accept and store Program Products. C'osin g a Please notify PaintCare in writing at least 180 Days before stopping Collection services c llectio"n to give us adequate time to remove your information from Program promotional �adlity materials. As soon as possible, remove the poster ("Recycle Your Paint Here") from the Collection Facility and post a new sign at the entrance to the site to notify the public that you will no longer be accepting Program Products. Before your last pick-up, verify that all Program Products and Collection Containers are returned to PaintCare. -35- Section S Direct Reuse, Onsite Reuse and Paint Reprocessing PaintCare encourages reuse of leftover paint through Direct Reuse (also known as a "paint exchange" or "swap shop"). These programs return good quality unused paint to the local community at low or no cost. When selecting products to place in the Direct Reuse area, containers must be labeled, more than half full, and in good physical and aesthetic condition. Contents must be liquid and relatively new. HHW programs may open the container to check the contents. The container should be closed securely before placing it in the Direct Reuse storage area. Containers must never be opened by customer at the Collection Facility. The Direct Reuse area must be separate from the Collection Facility's processing area. This section applies to Collection Facilities that have an Onsite Reuse program where Program Products are reused upon the premises of that Collection Facility. Program Products are used on the site as architectural coatings for equipment and facility maintenance. Latex or oil-based paint may be used directly from manufacturer's containers, from Reprocessed paint, or from 55 -gallon drums. Requirements PaintCare also encourages on-site latex paint Reprocessing. These programs, on for Faust average, Reprocess 30-60% of latex paint brought to an HHW facility back into Reprocessing Bulked usable paint available for return to the local community. White, beige, and grey latex paint is Reprocessed by blending into 5 -gallon containers or 55 -gallon drums for sale or to be given away to the public. Latex paint is Reprocessed into 5 -gallon or 55 -gallon containers for graffiti abatement. Oil-based paint may be Reprocessed into 5 -gallon or 55 -gallon containers for Onsite Reuse. A HHW Collection Facility conducting paint Reprocessing must have and follow its own procedures for sorting and Reprocessing paint. At a minimum, these procedures will include: Open each container to visually inspect the contents Determine if the contents are latex, oil-based, or other paint Determine if the condition of the paint is suitable for recycling (e.g. not moldy, rusty, etc.) Sort containers according to type, quality and color For containers of products suitable for paint Reprocessing: -36- Bulk contents into larger container (e.g. drum) for mixing Mix paint until homogenous Repackage paint into 5 -gallon or smaller containers Label Reprocessed paint For containers of products unsuitable for Reprocessing, either: Close container and pack in a Collection Container (must be completely resealed and not leaking) 0 Bulk the contents into a drum for "bad" latex or oil based paint Customer Customers must sign the Direct Reuse and Reprocessed Paint Waiver log included in VVaiv r Appendix B explaining that the paint is taken "as is" with no guarantee of quality or contents. The customer is required to read, complete and sign the form and the staff is required to verify what has been taken by the customer. The staff must record the number of containers taken by each customer and the total estimated volume on the log. Customers may return paint to the site if does not meet their expectations. -37- Section 6 Working with Transporters PaintCare contracts with public and private Transporters for the delivery of supplies, empty Collection Containers and pick-up of full Collection Containers. Scher',uling.e;, M PaintCare shall arrange for pick-ups of Program Products by Transporters at the Trani! -.--ter, to i -k Up Cc llno-fit - Marin HHW Collection Facility as specified by City. The name of your Transportation Service Provider and the contact information should be filled in on the cover of this guide. Cc Except for the pick-up above, when establishing an appointment for pick-up, please indicate: That your facility is a PaintCare Collection Facility 0 Name of Collection Facility and address a Your name 0 Your phone number Number of full Collection Containers to be picked up and the number of empty Collection Containers needed for replacement Allow a minimum of five (5) Days in urban areas from the time of your call to actual pickup. For temporary HHW Collection events, contact PaintCare when you start to plan your event to arrange the Transporter. PaintCare's Transporter shall pick-up Program Products at temporary events. Preparing On the scheduled pickup Day, Collection Containers should be readily accessible to Collection the Transporter for quick and efficient loading. The transporter will bring shipping %care¢ documents and Collection Container labels. Please assist the transporter with Collection Container loading and off-loading and keep a copy of the shipping documents (e.g. bill of lading or manifest) for your records. The site supervisor and the Transporter driver must each sign the bill of lading or manifest for each pick-up of Program Products. MRI Section? Inspections and Records At the end of each day, staff should: Inspect the Collection Facility to ensure Collection Containers are closed properly and the area is secured Inspect Collection Containers for damage and report any damaged Collection Containers to PaintCare for replacement or repair Inspect Collection Container for damaged or missing labels and correct as necessary The following records are to be maintained for a minimum of 3 years: Inspection records CESQG Certification Log or the Marin Household Hazardous Waste Facility Waste Drop-off Form (see: Appendix A) Direct Reuse and Reprocessed Paint Waiver or the Waiver for Release of Hazardous Materials from the Reuse and Reprocessing Center (see: Appendix B) Employee training records (see: Appendix C) Bills of Lading, manifests and/or other documentation required by applicable Law for outgoing shipments of Program Products RDZ Chapter Training and Safety All employees handling Program Products must receive training in product identification, acceptance, handling, packaging, inspection and emergency response procedures before Collecting Program Products or engaging in any PaintCare Program activities. Ensure that employees conduct Program Products Collection Activities in a safe manner that protects workers and the environment. Ensure Program Products Collection Activities follow general safety practices including proper lifting techniques. Ensure Collection Facility employees are equipped for and understand hazards associated with Program Products. Maintain training plans and records for each employee. A form for recording staff training is included in Appendix C. Store personal protective equipment (PPE) and spill response equipment in an accessible location adjacent to the Collection Containers. Ensure the Collection Facility is equipped with appropriate emergency response equipment including a fire extinguisher, spill kit and PPE. Monthly inspections of equipment are recommended. Ensure spill kit contains at a minimum safety goggles, gloves, absorbent, duct tape and plastic bags. Ensure emergency procedures and emergency contact numbers including police, fire department and emergency services are posted by a phone near the Collection Facility area. If applicable, develop and maintain emergency action plan as required by OSHA. If required by federal, State or local law, familiarize police, fire departments and emergency response teams with the layout of your facility, properties of Program Product handled at your facility and evacuation routes. A form for recording emergency contacts is included in Appendix D. .m Chapter 9 Spill Response The information in this section will assist with spills from damaged or leaking Program containers. It is important that all Collection Facility staff understand corrective actions to minimize exposure to people or the environment. Collection Containers should be kept in a clean, accessible area. Avoid spills through good housekeeping, safe handling techniques, proper storage and best management practices. Clean up any spill or release of Program Product immediately and place spill residue in a sealed container inside a Collection Container. Label it. Contact PaintCare to replenish spill kit materials as needed. Any spill or release of Program Product to the environment through a storm drain, waterway or soil contamination of more than 10 gallons must be immediately reported to the appropriate governmental authority, including the Certified Unified Program Agency, ("CUPA"). Contact PaintCare within 24 -hours of making such a report. Post emergency contact numbers including police, fire department, and emergency services. Upon request, PaintCare provides each Collection Facility with a spill kit containing: Latex gloves Safety glasses Absorbent Plastic bags Any material used should be replaced immediately after it is used. Contact PaintCare for replacement items. If a spill is small enough to be managed by Collection Facility staff, follow these steps: Isolate the area and restrict access to the spill Ensure personal safety, put on protective gear (glasses and gloves) provided in the spill kit Stop the movement of paint by placing the leaking container upright or in a position where the least amount will spill, and place leaking container in plastic bags provided in spill kit -41- Contain the spill by placing absorbent pads or granular absorbent around and on the spill — if outdoors, place barriers around storm drains to prevent a release to the environment Collect the contaminated absorbent material and place it in plastic bag(s) along with the leaking container and contaminated PPE, seal the bag(s) and place in the Collection Container Remove any clothing that may be contaminated, wash thoroughly to remove spilled material from your hands or body Replace any used spill control supplies -42- Appendix A. CESQG Certification Any business may drop latex paint Program Products at this Collection Facility, but you may only use this Program for oil-based Program Products if you are a household or a Conditionally Exempt Small Quantity Generator (CESQG). A CESQG is a business that generates less than 100 kilograms (about 27 gallons or 220 pounds) of hazardous waste (e.g. solvents or oil-based paint) per month. If you do not qualify as a CESQG, you must use a licensed hazardous waste hauler for managing your oil-based paint products. By signing this document, I certify that my organization is a CESQG. I also understand that the Collection Facility accepting this waste and PaintCare Inc., their agents, employees, member companies, officers, directors, stockholders, assigns and attorneys do not assume liability for my waste and that liability remains with my organization. By signing below, I waive, release and hold harmless the entities and persons referred to in this paragraph from any liability, claim, injury, losses or damages arising from the provision of these materials to the Collection Facility. Business or Name of Person Dropping Organization Off Program Product Phone (Please Print) (Please Print) Signature Number -43- Appendix B. Direct Reuse and Reprocessed Paint Waiver By signing below, I waive, release and hold harmless the Collection Facility and PaintCare Inc., their agents, employees, member companies, officers, directors, stockholders, successors, assigns and attorneys from any liability, claim, injury, losses, damages (including punitive or exemplary damages), or cause of action of any kind whatsoever, whether based on contract, tort, statute, common law, or strict liability, which are claimed in any way to result from, arise out of, or are connected with the handling, receipt, use, storage, treatment, disposal (including spilling and leaking) or release of Program Product or Reprocessed paint obtained for reuse from the PaintCare Program. For all materials that I obtain from the PaintCare Program, I accept with full understanding and appreciation of the actual or potential dangers stemming from the proper or improper use. I accept all risk related to my handling receipt, use, storage, treatment, disposal (including spilling and leaking) or release of such Program Product, including Reprocessed paint. All Program Product, including Reprocessed paint, that I obtain from the PaintCare Program, I accept as is, with no warranties. I recognize that PaintCare does not warrant that any materials obtained from the Collection Facility are merchantable, or fit for any particular use. PaintCare shall not be responsible for any consequential damages stemming from the use of any material obtained from the Collection Facility. Reprocessed Paint Latex* Oil•Based* Number of Staff Date Print Name Signature (gallons) (gallons) (gallons) Containers Initials Totals *Estimate the actual gallons of liquid, not container volume (e.g., 4 one -gallon cans that are half full equals 2 gallons.) Appendix C - Training Record for Collection Facility Staff Training for Collection Facility personnel is based on materials provided to Collection Facilities as part of their training requirement. Training includes information on the following: PaintCare Collection Facilities, accepting Program Products, what is and is not acceptable, Program operations, working with transporters, inspections and records, training and safety, and spill response. Date Trainee (Print Name) and Signature Trainer Initials -45- Appendix D - Emergency Contact Information This form is to be completed prior to the first Day of Collection. Basic Local Emergency Contacts Facility Emergency Coordinator (name/phone): Patty Garbarino (415) 269-5648 Alternate Emergency Coordinator (name/phone): Ron Piombo (415) 990-2489 Fire Department Phone Number 911 Police Phone Number 911 Hospital Phone Number Marin General Hospital (415) 925-7000 For Spills of Program Product: Report any spill or release of Program Product to the environment (air, water or soil) greater than 10 gallons or any release of any Program Product to the storm drain or waters of the State to the appropriate local and State enforcement agencies immediately, and to PaintCare within 24 hours. Local enforcement agency (name/phone) 911 State agency (name/phone): California Emergency Management Agency (Cal EMA) 1-800-852-7550 PaintCare: 1-855-PAINT09 Other (name/phone): DTSC (510) 540-3739 Other (name/phone): Marin County CUPA (415) 499-6647 .M ATTACHMENT C: PRICING Service Description Unit Price Direct Reuse Rate PaintCare agrees to pay to $0.25 per container the City for each container of Program Product that is actually taken by a public consumer from a Reuse program, whether sold or given away without charge. Paint Reprocessing Rate PaintCare agrees to pay to $4.50 per gallon the City for each gallon of Reprocessed paint produced from Program Products that is actually taken by a public consumer, whether sold or given away without charge. Containers may be 5 -gal buckets or 55 -gal drums. Onsite Reuse PaintCare agrees to pay to $4.50 per gallon the City for each gallon of Program Product that is diverted for Onsite Reuse. Containers may be 5 -gal buckets or 55 -gal drums. Bulked Oil -Based Paint PaintCare agrees to pay to $85.00 per Bulked 55 - Waste Rate the City for every 55 -gallon gallon drum drum of Bulked oil-based paint waste that is picked up by a Transportation Provider. Bulked Latex Paint Waste PaintCare agrees to pay to $85.00 per Bulked 55 - Rate the City for every 55 -gallon gallon drum drum of Bulked latex paint waste that is picked up by a Transportation Provider. Loose Pack Latex Paint PaintCare agrees to pay to $1,000.00 per roll -off Rate 1 the City for every roll -off container of Loose Pack latex paint that is picked up by a Transportation Provider. -47- ATTACHMENT D: COLLECTION FACILITY INFORMATION A. The City will provide Collection for the following jurisdictions: Unincorporated Marin County City of Belvedere Town of Corte Madera Town of Fairfax City of Larkspur City of Mill Valley Town of Ross Town of San Anselmo City of San Rafael City of Sausalito Town of Tiburon B. List the following for each Collection Facility that participates in the PaintCare Program: 1. Facility name: Marin Household Hazardous Waste Facility • Permit holder: City of San Rafael Fire Department • Facility address: 565 Jacoby Street • Contact name, e-mail, and phone: Patty Garbarino; Patty. Garbarinona.marinsanitary.com; (415) 485-5648 • Facility days and hours of operations: Tuesday through Saturday; except for the following Holidays: 4th of July, Thanksgiving. Christmas and New Year's Day; 8:00 AM thru 3:30 PM. • Customers served: HHW and CESQG. 2. Facility name: Household Universal Waste Pick -Up Program • Permit holder: City of San Rafael Fire Department • Facility address: 565 Jacoby St, San Rafael, CA 94901 RN • Contact name, e-mail, and phone: Kathy Wall, Kathy.wall(abmarinsanitary.com, 415-485-6806 • Facility days and hours of operations: Tuesday through Saturday; except for the following Holidays: 4th of July, Thanksgiving, Christmas and New Year's Day; 9:00 AM thru 2:00 PM. • Customers served: HHW only C. List the following for planned Temporary Collection Events taking place during the term of this Agreement where the location is known: 1. Site name: Bolinas Fire Department/Mesa Park • Permit holder: City of San Rafael Fire Department • Site address: 100 Mesa Road, Bolinas, CA 94924 • Contact name, email, and phone: John Lippitt, john.lippittgCityofsanrafael.org, 415-485-5067 • Event date and hours of operation: Varies • Audience served: HHW only 2. Site name: Pt. Reyes Fire Station • Permit holder: City of San Rafael Fire Department • Site address: 4th and B St, Pt. Reyes Station, CA 94956 • Contact name, email, and phone: John Lippitt, john.lippitt(a-)Cityofsanrafael.org, 415-485-5067 • Event date and hours of operation: Varies • Audience served: HHW only 3. Site name: Woodacre Fire Station • Permit holder: City of San Rafael Fire Department • Site address: 33 Castle Rock Drive; Woodacre, CA 94973 • Contact name, email, and phone: John Lippitt, john.lippitt(a Cityofsanrafael.org, 415-485-5067 • Event date and hours of operation: Varies • Audience served: HHW only no 4. Site name: Tomales High School • Permit holder: City of San Rafael Fire Department • Site address: 3850 Irvin Rd, Tomales, CA 94971 • Contact name, email, and phone: John Lippitt,lohn.lippittCc7Cityofsanrafael.org, 415-485-5067 • Event date and hours of operation: Varies • Audience served: HHW only 1671911 ATTACHMENT E: MODEL INVOICE City Collection Facility Location: Temporary Event Location and Date: Unique Identifying Invoice Number: Service Quantity of Units Included Unit Price Total Invoiced Amount Direct Reuse $0.25 per container Paint Reprocessing $4.50 per gallon Onsite Reuse $4.50 per gallon Bulked Oil -Based Paint Waste $85.00 per drum Bulked Latex Paint Waste $85.00 per drum Loose Pack Latex Paint $1,000.00 per roll -off - The above invoice represents, to the best of my knowledge, complete and accurate information regarding the Services rendered and for which the City seeks reimbursement through the Program. The attached back up documentation is accurate. Name: Company Title: Date: -51- Notice of Exemption 5 y�(kyss Form D To: Office of Planning and Research P.O. Box 3044, Room 212 Sacramento, CA 95812-3044 County Clerk County of MARIN Marin County Civic Center 3501 Civic Center Drive, #234 San Rafael, CA 94903 From: (Public Agency) CITY OF SAN RAFAEL- FIRE DEPARTMENT 1400 FIFTH AVENUE, SAN RAFAEL, CA 94901 (Address) Project Title: California Architectural Paint Recovery Program Collection Facility and Waste Paint Management Services Agreement Project Location - Specific: NA- Citywide Project Location — City: SAN RAFAEL Project Location — County: MARIN COUNTY Description of Nature, Purpose and Beneficiaries of Project: Execution of an agreement between the City of San Rafael and the California Architectural Paint Recovery Program Collection Facility andthe Waste Paint Management Services. Agreement would authorize the collection of leftover paint products from households. The City of San Rafael Fire Department currently holds a permit to operate collection facilities in Marin County. Name of Public Agency Approving Project: Name of Person or Agency Carrying Out Project: Exempt Status: (check one) ❑ Ministerial (Sec. 21080(b)(1); 15268); CITY OF SAN RAFAEL CITY COUNCIL `i " L` --J I' 0 3 2013 ❑ Declared Emergency (Sec. 21080(b)(3); 15269(a)); ❑ Emergency Project (Sec. 21080(b)(4); 15269(b)(c)); © Categorical Exemption. State type and section number: ❑ Statutory Exemptions. State code number: Reasons why project is exempt: �51 RICHARD N. BENSON MARIN COUNTY CLERK BY- J. Whitney, Deputy 15061(B)(3)- GENERAL RULE AND 15308- ACTIONS FOR PROTECTION OF THE ENVIRONMENT Executed agreement would authorize the City Fire Department to collect potential hazardous household waste (leftover paint), which would provide better disposal oversight thus facilitating environmental protection. Lead Agenc\ _ C=ontact Person: p`.J` vEi" SE' C3 r Ib°,N:7? UE ✓EL'.,F r Ew= Area Code;' Telephone'E\tension: 415.485.5064 If filed by applicant: 1. Attach certified document of exemption finding. 2. Has a Notice of Exemption been filed b\ the public agency appro� ing the project? ❑X 1'es ❑ No Sig. nature:_r—��'�'�` JZ Sieved bN Lead A2enc\ )C Signed b} Applicant '' 8 Date: December 3, 20,13 Ti',',: Community Development Director Date received for filir, at OPR: Rei iced 2005 PROFESSIONAL SERVICES AGREEMENT/CONTRACT COMPLETION CHECKLIST AND ROUTING SLIP Below is the process for getting your professional services agreements/contracts finalized and executed. Please attach this "Completion Checklist and Routing Slip" to the front of your contract as you circulate it for review and signatures. Please use this form for all professional services agreements/contracts (not just those requiring City Council approval). This process should occur in the order presented below. Step Responsible Description Completion Department Date 1 City Attorney Review, revise, and comment on draft agreement. 2 Contracting Department Forward final agreement to contractor for their signature. Obtain at least two signed P3 originals from contractor. 3 Contracting Department Agendize contractor -signed agreement for Council approval, if Council approval necessary (as defined by City Attorney/City Ordinance*). 4 City Attorney Review and approve form of agreement; � IQ— 01tI i r bonds, and insurance certificates and �VA.4 tv1, endorsements. 5 City Manager / Mayor / or Agreement executed by Council authorized ` Z. it " Department Head official. IM is q//3 6 City Clerk City Clerk attests signatures, retains original 0 agreement and forwards copies to the contracting department. 'A9 To be completed by Contracting Department: Project Manager: John Lippitt Project Name: Paintcare Agreement Agendized for City Council Meeting of (if necessary): December- 2, 2013 If you have questions on this process, please contact the City Attorney's Office at 485-3080. * Council approval is required if contract is over $20,000 on a cumulative basis. 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. 6.a DATE OF MEETING: December 2, 2013 FROM: Christopher Gra DEPARTMENT: Fire Department DATE: November 22, 2013 TITLE OF DOCUMENT: Resolution adopting the PaintCare Agreement. DepA--rt'ment 1-14J (kgna e )l (LOWER HALF OF FORM FOR APPROVALS ONLY) APPROVED AS COUNCIL / AGENCY AGENDA ITEM: 1�:� I - L City Mainager (signature) NOT APPROVED REMARKS: City Attorney (signature) 12