AN AGREEMENT BETWEEN THE CITY OF UNIVERSITY PLACE, WASHINGTON, AND UNIVERSITY PLACE REFUSE SERVICE, INC., GRANTING UNIVERSITY PLACE REFUSE A NEW FRANCHISE THROUGH DECEMBER 31, 2035 FOR COLLECTION AND DISPOSITION OF SOLID WASTE, RECYCLABLE MATERIALS, AND YARD WASTE, REVOKING THE PRIOR FRANCHISE AGREEMENT BETWEEN THE PARTIES.
Section 1. RECITALS 3
Section 2. DEFINITIONS 3
Section 3. SCOPE OF WORK 8
Section 4. TERM 8
Section 5. ANNEXATION 9
Section 6. SOLID WASTE COLLECTION AND DISPOSAL 10
Section 7. RECYCLABLE MATERIALS; YARD WASTE 10
Section 8. COLLECTION EQUIPMENT AND SPILLAGE 12
Section 9. COLLECTION SCHEDULE 12
Section 10. SERVICE 13
Section 11. EMPLOYEE CONDUCT 14
Section 12. COMPLAINTS 14
Section 13. NOTIFICATION TO CUSTOMERS 14
Section 14. DISABLED SERVICE 14
Section 15. LOCATION OF CUSTOMER SERVICE OFFICE 14
Section 16. XXXXXXXX AND REFUNDS 14
Section 17. RATE AND RATE ADJUSTMENTS 17
Section 18. CITY AGREEMENT ADMINSITRATION FEE 20
Section 19. CITY-OPERATED FACILITIES 20
Section 20. SPECIAL COLLECTION EVENTS 20
Section 21. COMPANY PLANNING ASSISTANCE 21
Section 22. DISRUPTION DUE TO CONSTRUCTION 22
Section 23. SAFEGUARDING PUBLIC AND PRIVATE FACILITIES 22
Section 24. AUDITS AND RECORDKEEPING 22
Section 25. INDEMNIFICATION 23
Section 26. INSURANCE 25
Section 27. MODIFICATION 28
Section 28. INTERPRETATION 28
Section 29. ASSIGNMENT 28
Section 30. COMPLIANCE WITH LAWS 30
Section 31. EXCLUSIVE RIGHT 30
Section 32. FORCE MAJEURE 30
Section 33. DEFAULTS; FAILURE TO PERFORM CONTRACTUAL OBLIGATIONS 31
Section 34. NOTICES 32
Section 37. GOVERNING LAW; VENUE 33
Section 38. SEVERABILITY 33
Section 39. NO THIRD-PARTY BENEFICIARIES 33
Section 40. EXECUTION/AGREEMENT DATE 33
This solid waste collection contract is entered into by and between the City of University Place, a municipal corporation of the State of Washington (“City”), and University Place Refuse Service, Inc., a Washington corporation (the “Company”) to provide for collection of Garbage, Compostables, and Recyclables as provided by RCW 35A.47.040.
The parties, in consideration of the promises, representations and warranties contained herein, agree as follows:
1.1. Before incorporation of the City on August, 31, 1995, the Company handled the collection, hauling and transportation of solid waste, recyclable materials and yard waste for the individuals and businesses that are now residents of the City under its Certificate of Convenience and Necessity (“G Certificate”). The G Certificate was issued by the Washington Utilities and Transportation Commission (“WUTC”).
1.2. The City desires the Company to continue to provide such services through this Agreement with the City and the parties wish to enter into this Agreement to define the rights, responsibilities and obligations relating thereto.
1.3. The City and the Company agree to revoke the prior Franchise Agreement that would expire under its terms on December 31, 2025 and substitute in its place a new Franchise Agreement.
1.4. The Company is qualified to provide solid waste, yard waste and recyclable collection services in accordance with the terms of this Agreement.
1.5. The Company is granted terms in this Agreement to provide for reliable, environmentally sound, and timely solid waste, yard waste and recyclable collection services to City residents and businesses. This Agreement constitutes a grant of an exclusive City franchise to the Company within the geographic area further defined herein and full satisfaction of the City’s obligations under RCW 35A.14.900.
Section 2. DEFINITIONS. The following terms shall have the following definitions for the purposes of this Agreement.
2.1 “Adjustment Date” means the Index reports as of June 30 in any year during the term of this Agreement.
2.2. “Agreement Date” means the date following mutual acceptance of the terms of this Agreement by both parties
2.3 “Aluminum” means cans and containers composed solely of aluminum.
2.4. “Automated Carts” means a cart designed to be picked up and emptied by mechanical means. Specific type and size to be defined in rate items.
2.5. “Bale” means material compressed by machine and securely tarped or banded.
2.6. “Base Rates” means the rates set forth in Exhibit A and incorporated herein by this reference, as such rates may be adjusted in accordance with this Agreement. The Base Rates in effect at a particular time shall be used as a basis for any adjustments required under this Agreement.
2.7. “Bulky Materials” means empty carriers, cartons, boxes, crates, etc., or materials offered for disposal, all of which may be readily handled without shoveling.
2.8. “Bulky Waste” means those items, not exceeding 300 lbs. per items and smaller than 4 feet by 8 feet by 3 feet by 4 feet. Items included in this definition include, but are not limited to: Appliances (i.e. clothes washers and dryers, cooking stoves and ranges, microwave ovens, water heaters, dishwashers, etc., refrigerators, freezers, and air conditioners), carpet and carpet padding, and furniture and power yard equipment.
2.9. “Can” means a can made of durable corrosion-resistant, nonabsorbent material, watertight, with a close-fitting cover and two graspable handles. Size to exceed 20 gallons but not to exceed 32 gallons or 4 cubic feet. A can cannot weigh more than 45 pounds when filled nor more than 12 pounds when empty.
2.10. “Cardboard” for recycling means: corrugated cardboard, cereal boxes, soap boxes, xxxxx paper bags, etc. It must be clean, free of packing materials, and flattened. Waxed or food-contaminated cardboard cannot be included.
2.11. “Cart” means a wheeled plastic container. May also be referred to as a toter. Size and type to be defined in rate items.
2.12. “Charge” or “Rate” means a set flat fee for performing a service as described in Exhibit A, or the result of multiplying the amount charged for a unit times the number of units serviced as described in Exhibit A.
2.13. “Co-mingled or Co-mingled Recycling” means the items that are allowed to be included and mixed together in the Company-provided Recycling Cart, as
defined in this Agreement, which are: newspaper, cardboard, mixed paper, aluminum and metal containers, and plastic. Glass is not included, and must be taken to a drop-off recycling site to be recycled. “Co-mingled Recycling” may also be referred to as “single stream recycling.”
2.14. “Compacted Material” means material which has been compressed by any mechanical device either before or after it is placed in the receptacle handled by the Company.
2.15. “Compactor Disconnect/Reconnect Charge” means a flat fee established by the Company for the service of disconnecting a compactor for a drop box or container prior to taking it to be dumped and then reconnecting the compactor when the drop box or container is returned to the customer’s site.
2.16. “Container” means a detachable container that is left at a customer’s premises and emptied into the collector’s truck and is lifted by mechanical means.
2.17. “Curb or Curbside” means a location within five (5) feet of the drivable portion of a street, alley or roadway, as determined by the Company, for the purpose of acceptable placement of solid waste, recycling or yard waste collection containers.
2.18. “Disposal fee” is the rate charged for disposal of Solid Waste. This rate shall also include taxes and associated costs for the disposal of Solid Waste.
2.19. “Designated Disposal Site” means the disposal facility to which the Company is directed by the City from time to time in accordance with Section 6.2.
2.20. “Drop Box” means a container that is placed on the Company’s truck by mechanical means, hauled to a disposal site and returned to customer’s premises.
2.21. “Drop-off Recycling Site” means a location that the City and the Company have mutually agreed upon for the Company to provide and maintain one or more drop boxes, containers, carts, toters, bins, or other containers for the use of City residents to bring and deposit recyclable materials.
2.22. “Drum” means a metal container of approximately 50-gallon capacity, generally used for oils or solvents. Maximum weight not to exceed 45 pounds when filled.
2.23. “Franchise Area” means the Service Area identified in Paragraph 3.4 infra.
2.24.“Gate Charge” means a flat fee charged for opening, unlocking or closing gates in order to pick up solid waste.
2.25. “Glass” for recycling means: bottles and jars only, of any color, that is composed solely of glass. It does not mean: tempered glass, window glass, ceramic glass, light bulbs, fluorescent tubes and broken glass of any kind.
2.26. “Index” means the Consumer Price Index for All Urban Consumers for Seattle- Tacoma-Bellevue, All Items (1982-84 = 100) published by the United States Department of Labor, Bureau of Labor Statistics.
2.27. “Litter Receptacle” means a container not over 60-gallon capacity generally placed in shopping centers and along streets or highways for litter. Maximum weight not to exceed 75 pounds when filled.
2.28. “Loose Material” means material not set out in bags or containers. Also includes materials which must be shoveled.
2.29. “Metal Containers” means cans and containers composed of metals, such as tin or bimetal, which are attracted by a magnet.
2.30. “Mixed Paper” means junk mail, phone books, office paper, etc. Do not include Newspaper with Mixed Paper. Not accepted: waxed, plastic coated, aluminized, food contaminated paper, paper plates, paper towels, bathroom tissue, or carbon paper.
2.31. “Multi-Family Recycling Center” means a site that the multi-family complex owner/manager and the Company have mutually agreed upon that provides one or more carts, bins, containers or drop boxes for the purpose of providing co- mingled and/or separated recycling to the multi-family residents.
2.32. “Newspaper” means any part of the newspaper that was included when it was delivered or purchased. Magazines may be included with Newspaper.
2.33. “Oversized Brush Pickup” means a special collection event occurring two times per year, spring and fall. The Company shall collect at curbside from each residential customer, branches and limbs placed in a loose pile up to six feet by six feet by six feet in size. Limit: one pile per household per event.
2.34. “Packer” means a device or vehicle specially designed to pack loose material.
2.35. “Pass Through Fee” means a fee that is billed directly to the customer without markup or markdown by the Company.
2.36. “Permanent Service” means, in conjunction with containers and drop boxes, when service is provided for a period of more than ninety days.
2.37. “Plan” means the City-adopted or designated solid Waste Management Plan.
2.38. “Plastic” for recycling means plastic bottles such as milk jugs, soda containers, detergent and shampoo bottles, etc. with neck or openings smaller than the base. Plastic tubs, buckets, bags or any other plastic items not meeting this definition are not accepted. Plastic bottles containing automotive fluids or other hazardous materials are not accepted.
2.39. “Recyclable Materials” means those recyclable items defined in RCW 70A.205.015(18) designated by the City to be picked up in the recycling program, which items are limited to glass, aluminum, metal containers, mixed paper, cardboard and newspaper.
2.40. “Recycling Bin, Cart, Toter, or Container” means a bin or container specifically designed or designated for the collection of recyclables.
2.41. “Recycling Ordinances” means University Place Municipal Code Sections
12.20.060 (A)(curbside program), 12.20.060 (B) (multi-family program) and
12.20.070 (yard waste program).
2.42. “Solid Waste” means those wastes defined in RCW 70A.205.015(22), whether the source be residential, commercial, industrial or otherwise, but shall not include Recyclable Materials and Yard Waste, as those terms are defined herein and shall not include dangerous or hazardous wastes regulated under chapter
2.43. “Special Pickup” means a pickup requested by the customer at a time other than the regularly scheduled pickup time, but which does not involve the dispatch of a truck. If a special dispatch is required, time rates will apply.
2.44. “Temporary Service” means a service that is required for a period of 90 days or less in conjunction with containers and drop boxes. Temporary service rates are not to be used for the first 90 days of service when a customer requests, and the Company provides, service for more than 90 days.
2.45. “Toter” means a wheeled plastic container. May also be referred to as a cart. Type and size to be defined in rate items.
2.46. “TPCHD” means Tacoma-Xxxxxx County Health Department. In the event that the TPCHD is dissolved or disbanded, all references to “TPCHD” shall refer to the successor organization providing public health services under Title 70 RCW.
2.47. “Unit” means: (1) a can made of durable, corrosion-resistant, nonabsorbent material, watertight, with a close-fitting cover and two handles. Size to exceed 20 gallons but not to exceed 32 gallons or 4 cubic feet. Cannot weigh more than 45 pounds when filled or more than 12 pounds when empty; and (2) where agreeable between Company and customer (and where allowable under local ordinance), a box, carton, cardboard barrel or other suitable container may be
substituted for a garbage can, for a single pickup which includes the container, if it meets the size and weight limits shown in clause (1) of this Section.
2.48. “Unlocking” means a flat fee imposed by the Company when their personnel must unlock padlocks or other locking devices to perform pickup service.
2.49. “WUTC” means the Washington Utilities and Transportation Commission.
2.50. “Yard Waste” means vegetative yard and garden debris including: grass, leaves, weeds, branches and limbs not to exceed four inches in diameter. Yard waste does not include: dirt, rocks, sod, beauty bark, stumps, lumber, bags, manure, or table scraps.
2.51. “Yard Waste Bin or Container” means a bin or container specifically designed or designated for the collection of yard waste.
Section 3. SCOPE OF WORK. In accordance with the terms of this Agreement, the Company shall furnish all labor, materials, facilities, services and equipment necessary to provide:
3.1. Collection, hauling and transportation services for all Solid Waste generated within the City for disposal during the term of this Agreement;
3.2. Recycling services to the City at the same level and of the same types as set forth in Chapter 12.20 UPMC; and
3.3. Yard Waste collection services to the City.
In furnishing such labor, materials, facilities, services and equipment, the Company shall provide the levels of services set forth in this Agreement, including Exhibits hereto, subject to the limitations and restrictions contained therein.
3.4. The Service Area or Franchise Area within which the services under this Agreement shall be performed by the Company shall be as described in the Company’s G Certificate (G-64) as issued by the WUTC and as configured on August 30, 1995; as such area may be amended as allowed in this Agreement.
4.1. The previous Agreement between the City and Company for Company to provide collection services to the City beginning on or about January 1, 2010, and as thereafter amended is terminated as of 11:59 p.m. the day of the Agreement Date of this Agreement.
4.2 The term of this Agreement shall commence at 12:01 a.m. on the day following the Agreement Date and shall expire on December 31, 2035 (“Agreement Term”).
4.3 Provided that the Company is not in default, the parties may extend this Agreement for a single extension of no more than five (5) years in duration, with said extension expiring on December 31, 2040. Any such extension shall be under the terms and conditions of this Agreement, as amended from time to time by the City and the Company.
4.4 The City and the Company will meet in 2033 or thereafter to discuss the potential for extending the Agreement Term or entering into a new agreement. In any event, any decision by the parties to extend the Agreement Term or enter into a new agreement will be made by December 31, 2035.
5.1. If the City annexes an area in which, before annexation, an entity other than the Company has operated under a franchise, permit or license to collect and transport Solid Waste, this Agreement and the rights and obligations of the Company hereunder shall apply and become effective with respect to such annexed area(s) immediately upon the earlier of (a) the expiration of any continuation franchise granted by the City under RCW 35A.14.900 or (b) the purchase by the City of the facilities or business of the entity holding the pre-annexation franchise, permit or license.
5.2. If (a) the City annexes an area not previously covered by any such franchise, permit or license; (b) the City annexes areas within which the Company has an existing WUTC permit or other franchise for garbage or refuse collection and removal; or
(c) the Company acquires an area within the City currently served by a different contractor, this Agreement shall apply and become effective with respect to such annexed or acquired area immediately upon the City’s annexation or the Company’s acquisition of such area.
5.3. The Company agrees, in consideration for this Agreement, that the Company’s G Certificate right of franchise, if any, applicable to any annexed areas under Section 5.2 or otherwise, shall be deemed canceled on the effective date of the annexation and that the Company shall service the newly-annexed areas under this Agreement.
5.4. The Company waives any and all claims or rights for compensation or damages under RCW 35A.14.900, as it may be amended or replaced from time to time, or pursuant to any other law or authority in effect on the Agreement Date from the City, its agents, officers or assigns, arising from the cancellation of any right of franchise resulting from the City’s initial incorporation or any subsequent annexations during the Agreement Term and during the term of the prior Franchise Agreement between the City and the Company.
6.1. The Company shall collect Solid Waste from the premises of each residential customer account within the City not less than biweekly (but at the customer’s option, weekly) and of each commercial and industrial customer account as agreed by the Company and that customer. Title to all Solid Waste collected by the Company hereunder shall remain with the generator until it is delivered to and accepted at the Designated Disposal Site.
6.2. The Company shall transport all Solid Waste collected under this Agreement to the Designated Disposal Site. The City shall designate a Disposal Site from time to time, as it chooses in its sole discretion.
6.3. No Solid Waste collected by the Company within the City may be diverted from the Designated Disposal Site without City approval, except for Solid Waste eliminated through waste reduction or waste recycling activities consistent with City ordinances or the Plan. In disposing of Solid Waste, the Company shall comply with all applicable federal, state and local environmental health laws, rules or regulations.
6.4. The City and the Company may meet periodically to review the level of services and Base Rates provided in this Agreement. Services under review may include Recycling, Special Programs, Solid Waste Collection programs, and any other services that the City deems worthy of review. Review of Base Rates may include a comparison with refuse rates across the local region.
7.1. The Company shall provide collection of Recyclable Materials and Yard Waste not less than once every two weeks. Collection will be provided to all single- family residences and multi-family residences subscribing to cart service in the City limits who have signed up for the collection of Recyclable Materials and Yard Waste with the Company and have received bins and carts as provided herein. For collection, all yard waste must be placed in the toter(s) provided by the Company, except for occasional tagged bags, boxes, or cans, and any other city-directed oversized brush pick up events.
7.2. The Company shall provide recycling bins for public use, on City-owned, publicly-owned property or upon the Company’s property of the same type specified in the Recycling Ordinances for recyclables. Those bins shall be at such locations as may be mutually identified by the City and Company, and absent agreement of the parties otherwise, shall not be fewer than three in number. The Company shall, at its expense, maintain the safety and cleanliness of the glass recycling bins at drop off recycling sites, and the nearby surrounding areas around those public glass recycling bins. The Company shall at the Company’s expense also provide single Yard Waste carts for Yard Waste, and such carts shall remain the property of the Company. The Company shall collect
Recyclable Materials the customer prepares in the following manner and then places in the bins:
7.2.1. Aluminum – drain contents and flatten if possible, then place in the co-mingled recycling bin.
7.2.2. Glass – place glass jars and bottles only, of any color, loose into glass-only recycling bins provided for by Company and/or other designated glass- only recycling locations in the City. All jars and bottles must be unbroken, rinsed and placed in the bin carefully. It is not necessary to remove labels. Not accepted: plate glass, window glass, mirrors, light bulbs, Pyrex or other kitchen cookware.
7.2.3. Tin Cans – remove paper labels, rinse clean to avoid attracting insects or animals. Remove tops and bottoms (if possible), place inside can and flatten. Not accepted: clothes hangers, aerosol cans or scrap metal.
7.2.4. Mixed Paper – Cardboard must be flattened when placed in the co- mingled recycling bin.
7.2.5. Newspaper – Only newspaper and catalogs made of newsprint may be included.
7.2.6. Plastic Bottles – Remove lids, empty completely, rinse and discard.
The parties may agree to modify the nature of these materials and the processing thereof by agreement and without the necessity of amending this Franchise Agreement.
7.3 Recyclable Materials.
7.3.1. Yard Waste collected within the City by the Company shall be properly disposed of or marketed by the Company in accordance with applicable laws and regulations. The Company becomes the owner of Recyclable Materials and Yard Waste when such material is placed into containers provided by the Company at curbside for collection or, if the material is not placed at curbside, when the Company or its personnel receives such Recyclable Materials or Yard Waste. The Company may market or dispose of Recyclable Materials or Yard Waste in any manner the Company deems to be economically feasible. The Company shall be responsible for all marketing and sale of Recyclable Materials or Yard Waste collected hereunder and shall be entitled to all proceeds therefrom.
7.3.2. Recyclable Materials collected by the Company shall not be disposed of in a landfill unless the Company has considered other alternatives and, after good faith efforts to locate a market, has determined that such disposal is the only economical way to avoid a monetary loss. If the Company finds it
necessary to landfill Recyclable Materials on a continuing basis, it shall notify and explain to the City representatives its reason for such actions.
7.4. The City shall adopt and enforce reasonable ordinances prohibiting scavenging of Recyclable Materials and Yard waste that would otherwise become the property of the Company hereunder.
7.5. Upon mutual agreement, on terms and conditions and at rates satisfactory to the parties, the City and the Company may include additional items for recycling and additional programs under this Agreement.
Section 8. COLLECTION EQUIPMENT AND SPILLAGE. The Company shall provide an adequate number of vehicles and containers for its collection services under this Agreement. Such vehicles shall be kept in good repair and appearance and in a sanitary condition at all times. Each vehicle shall have clearly visible on each side the name and phone number of the Company and a vehicle number. All vehicles and containers used for hauling Solid Waste, Recyclable Materials, and Yard Waste shall be reasonably enclosed to prevent spillage or leakage. Any spillage that occurs during collection shall be immediately cleaned up by the Company at its expense. Any and all item(s) or equipment, including but not limited to: bins, carts, containers, toters, drop boxes etc., provided to customers under this Agreement by the Company, are and shall remain the property of the Company and are provided at Company expense, except as noted otherwise. Other than normal wear and tear, the customer shall be liable for damages if such items are lost, damaged, or stolen.
9.1. The Company shall establish collection routes and schedules. It shall be the customer’s responsibility to place Solid Waste, Recyclable Materials and Yard Waste at the appropriate location for collection in the appropriate container before the approved starting hour. BOTH the City and the residential customers shall be notified at least seven days before any route changes. The Company will furnish the City a map indicating pick-up days for all roads in the Franchise Area.
9.2. The Company shall provide regularly scheduled service for residential customers on a regular weekday, Monday through Friday.
9.3. Residential pickup shall be made between the hours of 6 a.m. and 6 p.m. If the Company or the City receives complaints about the 6 a.m. collection starting time that cannot be resolved by the best efforts of the Company and the City, the Company shall shift to a 7 a.m. starting time.
9.4. Hours and days of pickup for collection from industrial or commercial outlets shall be in the Company’s discretion, as long as appropriate sanitary conditions are maintained and disruption to adjacent residential areas is minimized.
9.5. When the Company changes the pickup date for its service area, or a portion of its service area, all customers in the affected area must be notified of the change by mail, personal contact, or by a notice being affixed to their solid waste can in advance of the implementation of the new pickup schedule.
9.6. For regularly scheduled service, when pickup is missed due to the Company’s observance of a holiday, the Company will provide service on an alternate day at no additional charge to the customer. A list of the holidays observed by the Company is shown below:
New Year’s Day Thanksgiving Day Christmas Day
There is no pickup on these three holidays and all regularly scheduled pickups will be one day late for the balance of the week.
10.1. The Company may refuse to pick up materials from points where, because of the condition of the streets, alleys or roads, it is impractical or dangerous to persons or property to operate vehicles.
10.2. The Company may refuse to drive onto private property when, in the Company’s judgment, driveways or roads are improperly constructed or maintained or without adequate turn-arounds or have other unsafe conditions.
10.3. The Company will not be required to enter private property to pick up material while an animal considered or feared to be vicious is loose. The customer will be required to confine the animal on pickup days.
10.4. Any pickup may be missed due to weather or road conditions. If the items(s) missed is (are) taken on next pickup, no credit will be given.
10.5. Other than to offer reasonable care, the Company assumes no responsibility for articles left on or near cans or units.
10.6. Where the Company is requested to provide service, and damage occurs to a customer’s driveway due to reasons not in control of the Company, the Company will assume no responsibility.
10.7. The Company reserves the right to reject pickup of a stationary packer or drop box which, upon reasonable inspection:
(a) appears to be overloaded;
(b) would cause applicable vehicle load limitation to be exceeded, or,
(c) if transported by the Company, would violate load limitation on vehicle operation; or negatively impact or otherwise damage road surface integrity.
Section 11. EMPLOYEE CONDUCT. The Company’s employees and agents shall be courteous, refrain from loud and/or obscene language, exercise due care, perform their work without delay, minimize noise, and not damage public or private property while performing Agreement services. If on private property, Company employees shall follow the regular pedestrian walkways and paths, returning to the street after replacing empty containers. Employees shall not trespass or litter; cross flower beds, xxxxxx or property to adjoining premises; or meddle with private property. The Company shall bear full responsibility for all conduct of its agents or employees performing Agreement services.
Section 12. COMPLAINTS. The City shall direct all complaints to the Company. All complaints shall be investigated by the Company within two business days after notice to the Company. The Company shall maintain a written record of all complaints, indicating the disposition of each. Such records shall be available for the City’s inspection during Company business hours.
Section 13. NOTIFICATION TO CUSTOMERS. The Company shall provide customers with notice of, and necessary information about, the services under this Agreement. The Company shall also timely provide customers with necessary information about complaint procedures, rates, regulations, days of collection and other pertinent information to avoid unnecessary inquiries to the City.
Section 14. DISABLED SERVICE. The Company shall establish and implement a special disabled collection program through which the Company will provide carry-out service to households that lack the ability to place containers at the curb because of a disability covered by the program. The program shall provide such carry-out service at no additional charge and shall be available at the written request of a household covered by the program. In establishing the program, the Company will use fair qualification criteria that meet the needs of the City’s disabled residents. These criteria shall comply with all local, state and federal regulations and shall be subject to the City’s review and approval before program implementation.
shall maintain an office in Xxxxxx County within seven miles of City Hall. The Company’s office and customer service assistance shall be accessible by a phone number local to City residents. The Company’s office shall be open at a minimum from 8:30
a.m. to 4:30 p.m. daily, except Saturdays, Sundays, and designated holidays. Representatives shall be available at the Company’s local office during office hours for communication with the public and City representatives.
16.1. The Company shall have full responsibility for billing and collection from customers all fees relating to the collection, transportation and disposal of Solid Waste, Recyclable Materials and Yard Waste under this Agreement, including determination of the timings of xxxxxxxx and the billing periods. Any customer who has not remitted required payments within 45 days after the date of billing may be notified by the Company that service may be discontinued 15 days after the date of notice if payment is not made before that time. The Company shall give customers notice of a right to a hearing regarding disputed bills before a designated Company official, and if a customer requests a hearing before the end of the 15-day period, service shall not be discontinued until the dismissal or conclusion of the hearing. The Company in its reasonable discretion may determine the date and time for the hearing, during its regular business hours, and the hearing procedures. If payment is not made by the date of dismissal or conclusion of the hearing, the Company may discontinue service for such customer. Upon payment of the delinquent fees, the Company shall resume collection on the next regularly scheduled collection day. Customer billing shall not be made more than two months before the service provided.
16.2. Rates and charges shall be as described in Exhibit A. All references made in this Agreement to “Exhibit A” of this Agreement shall be understood to mean “Exhibit A as amended,” unless specifically noted otherwise.
16.3. Credits. When there has been a transaction that results in a credit being due the customer, the Company must issue a check within 30 days unless other arrangements have been made with the customer. When service is discontinued during a pre-billed period and the customer is due a refund, the following shall apply:
1. All requests for refund will be honored.
2. If the customer provides a forwarding address to the Company or one can be obtained from the post office, the Company will issue a
refund check no later than 30 days following the request.
3. The carrier will make an attempt to refund amounts in excess of the amount described in Exhibit A. If the customer does not provide a forwarding address and the U.S. Post Office cannot furnish a forwarding address, the amount may be presumed to be abandoned and subject to the Uniform Unclaimed Property Act after the lapse of one year.
16.4. Overtime Charges. When a customer requests service during overtime periods, additional charges will apply as described on Exhibit A. Overtime periods include Sundays and the following holidays: New Year’s Day, Labor Day, President’s Day, Memorial Day, Independence Day, Thanksgiving Day, and Christmas Day. When a holiday listed above falls on Sunday, it will be observed on the following Monday.
When a holiday listed above falls on Saturday, the preceding Friday shall be the legal holiday. Time is to be recorded to the nearest increment of 15 minutes, from the time the Company’s vehicle is dispatched from the terminal until the time it returns to the
terminal. No additional charge will be assessed to customers for overtime or holiday work performed solely for the Company’s convenience.
16.5. Off-Curb Charges. Except for service provided to the infirm or handicapped, additional charges shall be assessed according to Exhibit A if Cans or Units are to be loaded by the Company and if the Cans or Units are not placed at the curb, in the alley, or points where the Company’s vehicle can be driven within five feet of the Cans or Units on improved access roads commonly available for public use. Driveways are not considered improved access roads commonly available for public use.
Note: The Company may elect to drive in and the charge will be limited to one Can. If cans are carried over 125 feet but are safely accessible to Company’s vehicle, the drive-in charge will apply.
16.6. Residential Rates. Residential monthly rates shall apply to the Solid Waste collection service, Curbside Recycling service, and/or Yard Waste Collection service for residential property. This includes single family dwellings, duplexes, apartments, mobile homes and courts, condominiums, etc., where service is billed directly to the occupant of each residential unit. Customers may be charged for service requested even if fewer units are serviced on a particular trip.
16.7. Commercial Rates. Commercial rates apply to commercial businesses. They also apply to duplexes, apartments, mobile home and courts, condominiums, etc., where service is billed to and paid by the residential property owner or manager. Customers will be charged for service ordered, even if fewer units are serviced or containers are less than full on a particular day.
16.8. Truck and Driver Time Charges. Time is charged as described in Exhibit A: when customers order single, special or emergency pickup; for material requiring special equipment, precautions, or disposal; for special trips to collect loose and bulky material; for material that must be taken to a special site for disposal; and when a truck must wait at or return to the customer’s site due to no fault on the part of the Company. Time taken for a driver to remove contaminants from the load may be included in the charge. Time shall be recorded and charged from the time the vehicles leave the Company’s terminal until return to the terminal, excluding interruptions. Time is to be recorded to the nearest increment of 15 minutes.
16.9. Additional Charges for Over-Weight Containers, Drip Boxes and Compactors. When the maximum net weight allowance is exceeded as stated in the following table, an additional charge per occurrence will be assessed to the customer as described in Exhibit A. Charges will only be assessed if the material is transported. Maximum Net Weight Allowance for Containers, Drop Boxes, and Compactors
Single Rear Axle
Tandem Rear Axle
Drop Boxes & Compactors
10,000 lbs. per load
20,000 lbs. per load
250 lbs. per cubic yard
250 lbs. per cubic yard
16.10 Materials Requiring Special Testing and/or Analysis. When the Company or disposal facility determines that testing and/or analysis of solid waste is required to determine whether dangerous or prohibited substances are present, the actual cost for such testing and/or analysis will be paid by the customer.
16.11 Low Income Senior Discounts. The Company will offer a twenty percent (20%) discount to those who (1) are already qualified through the Tacoma Public Utility’s Low Income Senior Program (TPU Program); and (2) whose service consists of only a 24- or 48-gallon waste container (and may include recycling and yard waste). If Tacoma Public Utility abandons this program, the parties agree to negotiate substitute criterion comparable to the TPU Program.
17.1. Base Rates. As compensation for its services hereunder, the Company shall be paid the Base Rates. These rates shall not be adjusted before March 1, 2021.
Rates may be automatically adjusted annually, beginning March 1, 2022. On or by December 15th of each year, starting December 15, 2021, the Company shall submit in writing and electronic form to the City for review and verification a Rate Adjustment Statement, calculating the new rates for the next year. In the event that the Company does not submit a Rate Adjustment Statement by December 15, the rate shall remain the same.
Upon City review and verification, the new rates shall take effect on March 1st of the following year, and Customers shall be notified by January 15th, forty-five (45) days prior to the new rate going into effect. Should ratepayers not receive notification by January 15th, due to missed deadlines by the Company or failure of the City to verify the rates, implementation of the new rates shall be delayed by one month without opportunity for recovery of lost revenue.
Adjustments to the Company's collection service charge shall be made in units of one cent ($0.01). Fractions less than one cent ($0.01) shall not be considered when making adjustments.
17.2 CPI Adjustments.
The Company's collection service charges and miscellaneous fees and Contract options contained in Exhibit A, excluding disposal fees, for each level of service shall be adjusted by one hundred percent (100%) of the annual percentage change in Seattle-Tacoma- Bellevue Metropolitan Area for the U.S. City Average Urban Wage Earners (CPI-U) prepared by the United States Department of Labor, Bureau of Labor Statistics, or a replacement index (the "CPI"). Rates will be adjusted using the most recently available trailing 12 months average CPI -U comparing June to the 12 months preceding. In the event of a decrease in the CPI, the collection service charges, miscellaneous fees and Contract options shall not decrease, unless the CPI decreases by more than one and a half percent (1.5%).
17.3 Disposal Fee Adjustments. Disposal Fee adjustments shall be made to Company collection rates to reflect increases or decreases in the rates for disposal fees for solid waste. If the Company or the City receives notice of any of the following, it shall notify the other party in writing of such change as soon as possible:
a. a change in the rates for disposal of Solid Waste at the Designated Disposal Site;
b. A change in the location of the Designated Disposal Site after the Agreement Date, the refusal of the Designated Disposal Site to accept Solid Waste or other unavailability of the Designated Disposal Site for Solid Waste; or
c. Any change in collection, treatment or processing requirements for Solid Waste, Recyclable Materials or Yard Waste before disposal or marketing by action of the City of any federal, state, county, or local government or agency.
If the disposal fees which are charged to the Company to dispose of the City’s Solid Waste are increased or decreased at any time for one or more of the preceding reasons, the Base Rates charged by the Company hereunder, upon thirty (30) days’ notice, shall be changed in a manner sufficient to reflect and pass through any such disposal rate change and be effective on the same date the revised disposal rate takes effect. However, if the rate change is not effective on such date, (a) such increase shall be sufficient to compensate the Company fully for the disposal fees it is required to pay before the effective date of the change to the Base Rates and (b) such decrease shall be sufficient to enable customers to fully recoup the Company’s increased revenues or decreased expenses from reductions in disposal fees. Upon the occurrence of a disposal fee change, the Company shall advise the City of the proposed increase or decrease in the Base Rates and, upon request of the City, will provide the City with documentation supporting the change in the Base Rates under this Section.
17.4 In addition to the adjustments attributable to CPI, the Company shall survey the then-effective rates charged to customers for services, similar to those provided by the Company under this Agreement, in the areas in Xxxxxx County, listed on Schedules 1 through 5, prior to any annual adjustment under Section 17.1 of this Agreement. The attached Schedules 1 through 5 shall provide a comparison survey for a sample of the rates charged under this Agreement. The rates used under this Section for the comparison areas in Schedules 1 through 5 shall be the rates effective in such areas immediately prior to the effective date for the annual adjustment and excluding disposal fee charges from comparator haulers. The Base Rates adjusted in accordance with Section 17.1 shall be used for the Company’s Proposed Rates in Schedules 1 through 5. If it is then determined that in any one of Schedules 1 through 5 the Companies’ Weighted Composite Rate exceeds one hundred three percent (103%) of the Xxxxxx County Average Weighted Composite Rate, only the Adjusted Rates regulated by the Schedule shall be reduced until the Company’s Weighted Composite Rate for that Schedule is no more than one hundred three percent (103%) of the Xxxxxx County
Average Weighted Composite Rate. Each Schedule of Schedules 1 through 5 shall be evaluated independently of the other and if found necessary, all the Company’s Adjusted Rates that each such Schedule covers shall be reduced until the Company’s Weighted Composite Rate for that Schedule is equal to or below one hundred three percent (103%) of the Xxxxxx County Average Weighted Composite Rate. Adjustments under this Section shall be made after the CPI Adjustment. Adjustments and calculations under this Section shall not include Disposal Fee-related charges, whether charged by the Company or any of the companies identified on Schedules 1 through 5.
17.5 Change in Law or Taxes. If new City, Xxxxxx County, Washington State or Federal taxes are imposed, the rates of existing taxes are changed after the execution date of this Agreement, and the impact of these changes results in increased or decreased Company costs in excess of ten thousand dollars ($10,000) annually, other than taxes associated with Disposal Fees, the Company and City shall enter into good faith negotiations to determine whether compensation adjustments are appropriate and if so, to determine the amount and the method of adjustment. Any adjustment in Company charges should coincide with the annual rate adjustment process described in Section
17.1 but shall not be considered an automatic rate adjustment and requires Council approval.
17.6 Notice to Customers. The Company shall provide notice to its customers of any change to its Rates and shall pay for notice of these changes as provided in RCW 35A.21.152. The Company, however, is not obligated to pay for the Publication of the Agreement or the publication of any amendment to the Agreement.
17.7. Other Rate Changes. Changes that result in a detrimental change in circumstances or a material hardship for the Contractor in performing this Contract may be the subject of a request by the Company for a rate adjustment, subject to review and approval by the City, at the City’s reasonable discretion. Such determination shall be a discretionary act of the City, but will be taken only following consultation with the Company. The Company understands that the City’s determination regarding service and rates may be influenced by public health, safety and welfare, law and police regulation, including policies to encourage waste reduction and recycling.
17.8. Truth in Billing. The City and the Company agree that the Base Rates include all of the City Agreement Administration Fees (Section 18) and other fees and charges authorized by law. In addition to the administrative fee, the City or other agency may, from time to time, impose other fees or taxes that shall be assessed and payable as directed by City ordinance or legislation of another governmental agency or jurisdiction. The Company may pass on such fees and taxes to Customers or otherwise separately line- item and charge such fees and taxes to Customers, only to the extent authorized by law. The Company is exclusively responsible for determining whether such fees, taxes and other charges may be charged or passed on to Customers.
18.1. To compensate the City for the exclusive rights granted in this Agreement and to assist in deferring the cost incurred by the City in the administration of this Agreement, the Company shall pay to the City no later than 15 days after the end of each calendar quarter (quarters ending at the end of March, June, September, and December) a City Agreement Administration Fee equal to five percent (5%) of the gross revenues actually received by the Company from customers derived from the Base Rates. The City Agreement Administration Fee shall be calculated in accordance with Exhibit B and shall be applied to Base Rates in accordance with this Agreement.
18.2. In the event any payment is not received within forty-five (45) days from the end of the calendar quarter, the Company shall pay, in addition to the payment or sum due, interest from the due date at an interest rate of 1% per month, beginning on the forty-sixth (46th) day after the end of the calendar quarter and continuing every day thereafter until the seventy-sixth (76th) day after the end of the calendar quarter, or until payment is made, whichever is earlier. If any payment is not received within seventy-six
(76) days after the end of the calendar quarter, the Company shall be assessed a late fee in the additional amount of two hundred dollars ($200.00) per day, beginning on the
seventy-sixth (76th) day after the end of the calendar quarter and continuing every day thereafter until paid.
18.3. The Company acknowledges the substantial value of this Agreement and understands that the City Agreement Administration Fee will be considered an operating expense, which, as and to the extent provided in this Agreement, may be included in the Base Rates and will not be identified as a separate charge on any customer xxxxxxxx.
18.4. Nothing in this Agreement precludes the City’s exercise of taxing authority, including but not limited to the imposition on the Company of a utility tax, business and occupation tax, and other levy or excise for general government.
Section 19. CITY-OPERATED FACILITIES. The Company, at no additional cost to the City, shall remove and dispose of Solid Waste, Recyclable Materials and Yard Waste resulting from normal City operations from buildings used by the City for its administrative and governmental functions, which Solid Waste, Recyclable Materials and Yard Waste are placed in cans or containers supplied by the City or the Company and conveniently located for collection. Such services shall also cover street and park containers.
20.1. The Company shall cooperate with the City in designing and implementing City-sponsored collection events. The City and the Company shall confer regarding the terms and conditions of such events.
20.2. The City and the Company shall jointly design and implement additional collection events, including the annual Spring Clean-UP, Fall Clean-UP, Spring Yard Waste Pick-UP, and Fall Yard Waste Pick-UP. Should the County approach the Company to host a paper shredding event within the City at premises controlled by the Company, the Company will make a good faith effort to consider hosting the event at a location within the City. These events are for the disposal of items not included in the normal collection services provided for in this Agreement. The material types and quantities eligible for these future special collection events and other details and conditions of these events shall be jointly discussed and agreed to by the Company and the City after considering the best interests of the City and its residents and the costs to the Company and the City of the event. Public information for these events shall be a shared responsibility of the City and the Company. The City will provide reasonable access to its newsletter, and publications and other media through which it communicates to the community at no cost to assist in publicizing these events and will assist the Company in staffing appropriate sites (i.e., drop-off sites). The Company shall not seek reimbursement for any cost it incurs from the planning and implementation of the annual Spring Clean-UP, Fall Clean-UP, Spring Yard Waste Pick-UP, and Fall Yard Waste
20.3 On the first Saturday of each month, the Company shall make available a location to drop off oversize, bulky or other solid waste. This service shall be charged in the same manner to the residential customers of the Company as the Company charges for items dropped off by the Customer during the week. Nothing in this Agreement, however, is intended to preclude the Company from expanding the scope of this service to those not otherwise eligible to receive this service and charging those entities a reasonable fee. Where either (a) the first Saturday of the month or (b) where the preceding Friday or following Monday to the first Saturday is a state legal holiday as identified in RCW 1.16.050, then the Company may identify an alternative date to supply this service.
20.4 The Company shall offer an on-call service to haul Bulky Waste at no charge to its residential customers in good standing with the Company. This service may be offered once per year and shall be limited to no more than five (5) bulky items per customer. For the purposes of this Section, a residential customer does not include those whose service is billed under a commercial account. Company may place reasonable limitations on the nature of items accepted which pose a hazard (e.g., gasoline, oil, asbestos) and may, in those instances where the Company incurs a charge for the disposal of the item (e.g., items containing a compressor such as a freezer) assess the charge shown on Exhibit A, discounted by twenty percent (20%). Company and the City further agree, that due to service capacity that they may impose an aggregate annual limit on the number of customers receiving this service, not to be below 300 annually.
Section 21. COMPANY PLANNING ASSISTANCE. The Company shall, upon request and without additional cost, make available either to the City or the property owner, planning assistance on new construction or major remodeling of buildings and structures within City limits with respect to the design and planning of garbage and
recycling removal facilities and their location upon the site of the proposed construction or remodeling project.
Section 22. DISRUPTION DUE TO CONSTRUCTION. The City reserves the right to construct any improvement or to permit any such construction in any street or alley in such manner as the City may direct. Such construction may for a time prevent the Company from traveling its accustomed route or routes for collection. The Company shall continue to collect Solid Waste, Recyclable Materials, and Yard Waste to the same extent as though no interference existed upon the streets or alleys normally traversed, unless the Company cannot obtain reasonable access to a customer, in which case the Company shall make arrangement as soon as reasonably possible during normal business hours to collect such customer’s Solid Waste, Recyclable Materials, and Yard Waste.
This shall be accomplished at no extra expense to the City or customers.
Company shall use good faith efforts to protect all public and private facilities and utilities whether located on public or private property, including street curbs. If such facilities, utilities or curbs are damaged by the Company’s operations, the Company shall promptly notify the City of the damage, or if the City is the first to receive notice thereof, the City shall promptly notify the Company of the damage. The Company shall repair or replace the damaged property to its condition before such damage. If the Company fails to do so within 30 days after receiving notice of the damage, the City may undertake such repairs or replacement and xxxx the cost to the Company.
24.1 The Company shall at all times cooperate with the City in providing all information relating to its services hereunder. The Company shall keep records of the Solid Waste, Recyclable Materials, and Yard Waste volume collected hereunder and the Company’s revenues therefrom. The City shall have the right to reasonable access to such records during the Company’s office hours and to audit those records by a City staff member or a City-designated auditor, at the expense of the City, no more than annually during the Agreement Term.
24.2 In the event that the Company requests a change of rates, the City may review the Company’s financial or other proprietary information in conducting its rate review or financial health of the Company. The City shall retain a third party to review such information at the Company’s expense and may take any other steps it deems appropriate to protect the confidential nature of the Company’s documents and preserve the Company’s ongoing ability to remain competitive.
24.3 The Company will only be required to retain these records for seven years. Accounting records of the Company shall utilize the system prescribed by the WUTC known as the “Uniform System of Accounts for Class A Garbage and Refuse Collection Companies” or a similar type approved by the WUTC. All such records are proprietary property of the Company, and the City shall hold all information from such
records delivered to the City in strictest confidence and shall not disclose such information except to the extent reasonable as required by applicable laws without the prior written consent of the Company. The Company hereby indemnifies and holds harmless the City from all costs, expense and liability, including attorney fees, that may arise from the City’s nondisclosure of such information because of the Company’s failure to give its written consent for disclosure.
25.1. The Company’s Indemnification of the City.
The Company shall defend, indemnify, and hold harmless the City, its officers, officials, employees and volunteers from and against any and all claims, suits, actions, or liabilities for injury or death of any person, or for loss or damage to property, which arises out of Company’s acts, errors or omissions, or from the conduct of Company’s business, or from any activity, work or thing done, permitted, or suffered by Company arising from or in connection with this Franchise Agreement, except only such injury or damage as shall have been occasioned by the sole negligence of the City.
However, should a court of competent jurisdiction determine that this Agreement is subject to RCW 4.24.115, then, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the Company and the City, its officers, officials, employees, and volunteers, the Company’s liability hereunder shall be only to the extent of the Company’s negligence. It is further specifically and expressly understood that the indemnification provided herein constitutes the Company’s waiver of immunity under Industrial Insurance, Title 51 RCW, solely for the purposes of this indemnification. This waiver has been mutually negotiated by the parties. The provisions of this section shall survive the expiration or termination of this Agreement.
25.2. Claims Subject to Indemnification. The term “claims” as used in this Section means all claims, lawsuits, causes of action, damages, penalties, charges, costs, expenses, judgments, losses, liabilities of any character or kind, including attorney fees (including those fees incurred to establish the City’s right to indemnification) and other legal actions and proceedings of any nature, whether or not asserted in a judicial forum, including but not limited to claims involving bodily or personal injury or death of any person or damage to any property (including but not limited to persons employed by the City, the Company or any other person and all property owned or claimed by the City, the Company, any affiliate of the Company or any other person) in any way connected with any of the following:
25.2.1. The performance or nonperformance of any provision or requirement of this Agreement by the Company, its officers, employees, subcontractors, agents or servants;
25.2.2. Any act or omission of the Company, its officers, employees, subcontractors, agents or servants at any facilities (other than any
Designated Disposal Site or any site to which the Company delivers Yard Waste in accordance with this Agreement) or involving any equipment used in connection with this Agreement;
25.2.3. The failure of the Company, its agents or servants to comply in any respect with applicable legal requirements;
25.2.4. Any release(s) or emission(s) or threatened release(s) or emission(s) of nonrecyclable waste or otherwise by any person(s) at, onto, into, above, under, through or from any of the equipment used in connection with this Agreement except in accordance with applicable laws; or
25.2.5. Any dispute regarding the boundaries of the Franchise Area, as described in Section 3.4 of this Agreement.
25.3. City Liability to the Company. The City shall not be liable to the Company for, and the Company hereby releases the City from all liability for, any injuries, damages or destruction to all or a part of any property owned or claimed by the Company that directly or indirectly results from, arises from or is related to the Company’s rights or obligations under this Agreement, unless that liability as between the City and the Company arises from the negligence or intentional acts of the City or its agents or employees.
25.4. Notice to the Company; Defense. If an action is brought against the City for which indemnity may be sought against the Company, the City shall promptly notify the Company in writing. The Company shall have the right to assume the investigation and defense of any such action, including the employment of counsel and the payment of all expenses. On demand of the City, the Company shall at its own cost and expense defend and provide qualified attorneys acceptable to the City under a service agreement acceptable to the City to defend the City or its officers, employees, agents and servants against any claim in any way connected with the events described herein. The City shall fully cooperate with the Company in its defense of the City, including consenting to all reasonable affirmative defenses and counterclaims asserted on behalf of the City. The City may employ separate counsel and participate in the investigation and defense, but the City shall pay the fees and costs of that counsel unless the Company has agreed otherwise. The Company shall control the defense of claims (including the assertion of counterclaims) against which it is providing indemnity under this Section, and if the City employs separate counsel, the City shall assert all defenses and counterclaims reasonably available to it.
The Company shall procure and maintain for the duration of the Agreement and as long as Company has facilities in the rights-of-way, insurance against claims for injuries to persons or damage to property which may arise from or in connection with the Agreement and use of the rights-of-way.
The Company’s maintenance of insurance as required by this Agreement shall not be construed to limit the liability of the Company to the coverage provided by such insurance, or otherwise limit the City’s recourse to any remedy available at law or in equity.
The Company shall obtain insurance of the types and coverage described below:
1. Commercial General Liability insurance shall be at least as broad as ISO occurrence form CG 00 01 and shall cover liability arising from premises, operations, stop gap liability, independent contractors, products-completed operations, personal injury and advertising injury, and liability assumed under an insured contract. There shall be no exclusion for liability arising from explosion, collapse or underground property damage. The City shall be named as an additional insured under the Company’s Commercial General Liability insurance policy with respect this Franchise Agreement using ISO endorsement CG 20 12 05 09 if the Franchise Agreement is considered a master permit, or CG 20 26 07 04 if it is not, or substitute endorsement providing at least as broad coverage.
2. Automobile Liability insurance covering all owned, non-owned, hired and leased vehicles. Coverage shall be at least as broad as Insurance Services Office (ISO) form CA 00 01.
3. Contractors Pollution Liability insurance shall be in effect throughout the entire Franchise Agreement covering losses caused by pollution conditions that arise from the operations of the Company. Contractors Pollution Liability shall cover bodily injury, property damage, cleanup costs and defense, including costs and expenses incurred in the investigation, defense, or settlement of claims.
4. Workers’ Compensation coverage as required by the Industrial Insurance laws of the State of Washington.
5. Excess or Umbrella Liability insurance shall be excess over and at least as broad in coverage as the Company’s Commercial General Liability and Automobile Liability insurance. The City shall be named as an additional insured on the Company’s Excess or Umbrella Liability insurance policy.
The Company shall maintain the following insurance limits:
1. Commercial General Liability insurance shall be written with limits no less than
$5,000,000 each occurrence, $5,000,000 general aggregate.
2. Automobile Liability insurance with a minimum combined single limit for bodily injury and property damage of $5,000,000 per accident.
3. Contractors Pollution Liability insurance shall be written in an amount of at least
$2,000,000 per loss, with an annual aggregate of at least $2,000,000. Pollution Liability coverage at least as broad as that provided under ISO Pollution Liability- Broadened Coverage for Covered Autos Endorsement CA 99 48 shall be provided, and the Motor Carrier Act Endorsement (MCS 90) shall be attached.
4. Excess or Umbrella Liability insurance shall be written with limits of not less than
$5,000,000 per occurrence and annual aggregate. The Excess or Umbrella Liability requirement and limits may be satisfied instead through the Company’s Commercial General Liability and Automobile Liability insurance, or any combination thereof that achieves the overall required limits.
Excess or Umbrella Liability. The Excess or Umbrella Liability requirement and limits may be satisfied instead through the Contractor’s Commercial General Liability and Automobile Liability insurance, or any combination thereof that achieves the overall required limits.
Company’s Commercial General Liability, Automobile Liability, Excess or Umbrella Liability, Contractors Pollution Liability insurance policy or policies are to contain, or be endorsed to contain, that they shall be primary insurance as respect the City. Any insurance, self-insurance, or self-insured pool coverage maintained by the City shall be in excess of the Company’s insurance and shall not contribute with it.
Insurance is to be placed with insurers with a current A.M. Best rating of not less than A: VII.
The Company shall furnish the City with original certificates and a copy of the amendatory endorsements, including but not necessarily limited to the additional insured endorsement, evidencing the insurance requirements of the Agreement. Upon request by the City, the Company shall furnish certified copies of all required insurance policies,
including endorsements, required in this Agreement and evidence of all subcontractors’ coverage.
The Company shall cause each and every Subcontractor to provide insurance coverage that complies with all applicable requirements of the Company-provided insurance as set forth herein, except the Company shall have sole responsibility for determining the limits of coverage required to be obtained by Subcontractors. The Company shall ensure that the City is an additional insured on each and every Subcontractor’s Commercial General liability insurance policy using an endorsement as least as broad as ISO CG 2026.
The Company shall provide the City with written notice of any policy cancellation within two business days of their receipt of such notice.
Failure on the part of the Company to maintain the insurance as required shall constitute a material breach of Agreement, upon which the City may, after giving five business days’ notice to the Company to correct the breach, terminate the Agreement or, at its discretion, procure or renew such insurance and pay any and all premiums in connection therewith, with any sums so expended to be repaid to the City on demand.
If the Company maintains higher insurance limits than the minimums shown above, the City shall be insured for the full available limits of Commercial General and Excess or Umbrella liability maintained by the Company, irrespective of whether such limits maintained by the Company are greater than those required by this Agreement or whether any certificate of insurance furnished to the City evidences limits of liability lower than those maintained by the Company.
L. Company – Self-Insurance
If the Company is self-insured or becomes self-insured during the term of the Franchise Agreement, Company or its affiliated parent entity shall comply with the following: (i) provide the City, upon request, a copy of Company’s or its parent company’s most recent audited financial statements, if such financial statements are not otherwise publicly available; (ii) Company or its parent company is responsible for all payments within the self-insured retention; and (iii) Company assumes all defense and indemnity obligations as outlined in the indemnification section of this Agreement.
26.5. Compliance Required. Notwithstanding any provision in this Agreement to the contrary, failure of the Company to maintain any and all of the terms of the foregoing insurance provisions shall be considered a material breach of this Agreement and shall be cause for its termination at any time at the option of the City.
Section 27. MODIFICATION. This Agreement constitutes the entire Agreement and understanding between the parties hereto. This Agreement shall not be considered modified, altered, changed, or amended in any respect unless in writing and signed by the parties hereto.
Section 28. INTERPRETATION. If provisions in this Agreement and any referenced WUTC rule or regulation are inconsistent, the provisions of this Agreement shall govern. The City and the Company agree that Memoranda of Understanding may be drafted and agreed to from time to time by the City and the Company and attached to this Agreement for clarity and the understanding of future parties.
29.1. Assignment; Subcontracting; Delegation of Duties.
29.1.1. The City entered into this Agreement with the Company in consideration of the Company’s size, limited service area and unique presence in the community. Except for subcontracting identified in this Agreement, the Company shall not assign or subcontract any of the work or delegate any of its duties under this Agreement without the prior written approval of the City.
29.1.2. When requested, approval by the City of a subcontract or assignments shall not be unreasonably withheld. However, the City may, in its discretion reduce the remaining Agreement term to five (5) years after the effective date of any assignment of this Agreement, but in no event shall the Agreement Term extend beyond December 31, 2035 without further agreement of the parties.
29.1.3. In the event of an assignment, subcontracting or delegation of duties, the Company shall remain responsible for the full and faithful performance of this Agreement, and the assignee, subcontractor, other obligor shall also become responsible to the City for the satisfactory performance of the work assumed. The City may condition approval upon the delivery by the assignee, subcontractor or other obligor of its covenant to the City to complete fully and faithfully the work or responsibility undertaken or other security acceptable to the City.
29.2. Change in Control.
29.2.1. Any change in control or the transfer of a controlling interest in the beneficial ownership of the Company shall constitute a default
under the terms of this Agreement, unless the City consents to that transfer. “The transfer of a controlling interest of the Company” shall include, but is not limited to, the transfer of more than 50% of the voting stock or the beneficial ownership of the Company to or from a single entity, unless the City, at the Company’s request, approves that transfer in writing. However, intracompany transfers, such as transfers between different subsidiaries or branches of the parent corporation of the Company, or transfers to corporations, limited partnerships or any other entity owned or controlled by the Company as of the date of this Agreement, shall not be construed as the transfer of a controlling interest of the Company. If the City determines that the new ownership can adequately and faithfully render the service required in this Agreement for the remainder of the Agreement Term and has the same commitment to the community as does the Company, the City
may elect to execute a novation, allowing the new ownership to assume the rights and duties of this Agreement and releasing the previous ownership of all obligation and liability. The new ownership would then be solely liable for any work and/or claims related to this Agreement.
29.2.2. The term “transfer” includes a sale, merger, or change in ownership by operation of law, the issuance of new shares, or conversion of shares without voting rights to voting shares. “Voting stock” means the shares entitled to vote for election of the directors of the corporation.
29.2.3. Notwithstanding the requirements above in this Section 29, the Company shall have the right to transfer interests in the beneficial ownership of the Company, and/or to assign this Agreement without City’s consent so long as the Company (and/or its transferee or assignee) remains controlled 51% or more, directly or indirectly, by University Place Refuse Service, Inc.
29.2.4. For purposes of this subsection 29.2, control by University Place Refuse Service, Inc., means control directly or indirectly by any or all of:
(a) Those natural persons who currently control University Place Refuse Service, Inc. as of December 31, 2020;
(b) Spouses or surviving spouses of those persons described in subsection 29.2.1;
(c) Lineal descendants of those persons described in subsection 29.2.1 (adopted children shall be deemed lineal descendants for purposes of this section);
(d) A trust, estate, corporation, limited partnership, limited liability company, voting trust or other entity controlled by, or the beneficiaries, shareholders or members of which are persons described in subsection 29.2.4(a)- (c), above; or
(e) A corporate trustee designated to act in a fiduciary capacity for the estate or trust of any of the persons described in subsection 29.2.4 (a) –(c), above.
29.3. Binding Effect. This Agreement shall be binding on any and all successors or assignees of the Company or the City, in accordance with this Section 29.
Section 30. COMPLIANCE WITH LAWS. The Company shall conduct operations under this Agreement in compliance with all applicable legal requirements. The Company shall obtain and pay for any permits, taxes and/or licenses required by the City or any other governmental authority for the performance of this Agreement.
31.1. The City grants the Company the exclusive right to collect, haul and transport all Solid Waste, Recyclable Materials, and Yard Waste generated within the area of the City described in Section 3.4 of this Agreement.
31.2. This Agreement does not apply to:
31.2.1. Solid Waste, Recyclable Materials or Yard Waste self- hauled by the generator;
31.2.2. Recyclable Materials hauled by owners of privately operated recycling centers;
31.2.3. Construction/demolition waste hauled by self-haulers or demolition contractors from a project on which they are providing demolition services in the normal course of their business; or
31.2.4. Yard waste generated and self-hauled by private landscaping services from a landscaping project on which they are working.
31.3. The parties agree to cooperate in the enforcement of the provisions of this Agreement and the City’s authority to regulate a system of solid waste handling.
Section 32. FORCE MAJEURE. Neither the City nor the Company will be liable for failure to perform its obligations under this Agreement and such failure shall not be a default under this Agreement when the failure is due to fire, flood, storms, epidemics, earthquakes, volcanic eruptions, war, riot, insurrection, governmental restraint, labor disturbances against entities other than the Company, unavailability of a disposal site or any other causes of any nature that could not be controlled or prevented by the party failing to perform which make this Agreement impossible to perform. In any such case, the party claiming the benefit of this provision shall use due diligence to remove any such causes and to resume performance under the Agreement as soon as is feasible.
33.1. Company Defaults Involving Disposal. If the Company is notified that it has violated the provisions of this Agreement relating to the disposal of Solid Waste, the Company shall, to the extent it disposed of such Solid Waste, immediately upon receipt of notice from the City, take steps to remedy the violation and to prevent further violations. Such action may include removing such Solid Waste and disposing of it at an approved facility. The Company shall indemnify and hold the City harmless for the cost of (a) any cleanup of a disposal site, required pursuant to state or federal law, when the Company has disposed of Solid Waste at such site in violation of this Agreement; and (b) the removal and/or disposal of any Solid Waste disposed of by the Company in a location that is not authorized under this Agreement.
33.2. Other Company Defaults. The Company shall be in default of this Agreement if it violates any provision of this Agreement. In addition to any rights set forth elsewhere in this Agreement, the City reserves the right to declare the Company to be in default of this Agreement if:
33.2.1. The Company fails to commence collection or fails to provide a substantial portion of service under this Agreement for more than five business days after performance is due;
33.2.2. The Company fails to obtain and maintain any permit required by the City or any federal, state or other regulatory body in order to perform the services required under this Agreement and as a result, the Company is prohibited from performing its obligations under this Agreement; or
33.2.3. The Company is in such noncompliance with this Agreement that it creates a serious hazard to public health or safety.
In the event of default, other than a default described in subsections 33.2.1, .2 or .3, the City shall give the Company 45 calendar days’ written notice of its intent to exercise its rights under Section 33.3, stating the reasons for such action. With respect to a default described in subsections 33.2.1, .2 or.3, the City shall give the Company 48 hours’ written notice of its intent to exercise its rights under Section 33.3, stating the reasons for such action. If the Company cures the stated reason within the applicable cure period or if the Company initiates efforts satisfactory to the City to remedy the stated reason and the efforts continue in good faith, the City shall not exercise its rights under Section 33.3 for the particular incident. If the Company fails to cure the stated reason within the applicable cure period, or if the Company does not undertake efforts satisfactory to the City to remedy the stated reason, the City may, without impairing any of its rights hereunder, exercise its rights under Section 33.3.
33.3 City Remedies. If the Company is in default under this Agreement, and after any cure period, the City may pursue any or all of the following:
(i) Terminate this Agreement by written notice and order the Company to discontinue further service;
(ii) Be released from its obligations under this Agreement and use any other method or person to perform those services;
(iii) Seek the judicial remedy of specific performance; and
(iv) Pursue any other remedy available at law or equity.
33.4. Company Right to Terminate. If the City fails to comply with this Agreement and fails to cure such breach within 45 days after written notice thereof from the Company (or if the default cannot reasonably be cured within 45 days, then if the City fails to commence to cure the default within such 45 days and fails to diligently and in good faith continue to cure the default within a reasonable period thereafter), then the Company may, without impairing any other of its rights hereunder, terminate this Agreement by written notice at any time after such 45-day period (or extended period).
33.5. Right to Require Performance. The failure of either party at any time to require performance by the other of any provisions hereof shall in no way affect the right of that party thereafter to enforce the same. Waiver by a party of any breach of any provision hereof shall not be taken or held to be a waiver of any succeeding breach of such provision or as a waiver of any provision itself.
33.6 If an order for relief with respect to the Contractor is entered in any bankruptcy case, either voluntarily or involuntarily, in which the Contractor is a debtor, then this Agreement, at the option of the City, may be terminated effective on the day and at the time the order for relief is entered.
Section 34. NOTICES. All notices required under this Agreement shall be personally delivered, sent by confirmed facsimile transmission or mailed by certified or registered mail, postage prepaid, as follows:
If to the Company, address to: University Place Refuse Service, Inc.
Xxxxxxxxxx Xxxxx, Xxxxxxxxxx 00000 Attn: Xxxxx Xxxxxxxx
If to the City, address to: City of University Place
0000 Xxxxxx Xxxxx X., Xxxxx 000 Xxxxxxxxxx Xxxxx, Xxxxxxxxxx 00000 Attn: City Manager
Or to such other address as any party shall specify by written notice so given. Notices shall be deemed to have been given and received as of the date personally delivered or
received by confirmed facsimile transmission or three business days after deposit in the
Section 35. RELATIONSHIP OF PARTIES. The City and the Company intend that an independent City/Company relationship be created by this Agreement.
Responsibility for the implementation of services lies solely with the Company. No agent, employee, servant or representative of the Company shall be deemed to be an employee, agent, servant, or representative of the City.
Section 36. GOVERNING LAW; VENUE. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. Venue for any action brought under this Agreement shall be in Xxxxxx County, Washington.
Section 37. SEVERABILITY. If any term or provision of this Agreement is, to any extent, held invalid or unenforceable, the remaining terms and provisions of this Agreement shall not be affected thereby, but each remaining term and provision shall be valid and enforced to the fullest extent permitted by law.
Section 38. NO THIRD-PARTY BENEFICIARIES. This Agreement is entered into by the City in its governmental capacity and is not intended nor does it create any third-party beneficiary or other rights in any private person.
Section 39. EXECUTION/AGREEMENT DATE. This Agreement is effective on the Agreement Date and is executed on the date(s) shown below.
CITY OF UNIVERSITY PLACE
Xxxxxxx X. Xxxx Date
City Manager Approved as to Form:
Xxxxxxx X. Xxxxx, City Attorney Date UNIVERSITY PLACE REFUSE SERVICES, INC.
Xxxxx Xxxxxxx Date