Loading...
HomeMy WebLinkAbout32- Public Services CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION From: James Howell, Director Subject: An amendment to the franchise agreement between the City of San Dept: Public Services Bernardino and Jack's Disposal/ Curran's Rubbish Disposal for refuse Date: June 15, 1995 di sposal in the City of San Bernardino RIGINAL Synopsis of Previous Council Action: 95-138 Authorizing agreement with Jack's Disposal 95-139 Authorizing agreement with Curran's Rubbish Disposal Recommended Motion: Adopt Resolutions Signature Contact person: James Howell, Director of Public Services Phone 5140 Supporting data attached: Yes Ward: All FUNDING REQUIREMENTS: Amount: N/A I Source:(Acct. No.) N/A MAY-113W96.r-t� 2,-04 (Acct. Description) N/A Finance: Council Notes: � IZY Agenda Item No. 3d A �,� ( ?=Y OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION STAFF REPORT On May 25, 1995, the City entered into. Franchise Agreements with Jack's Disposal, Inc. and Curran's Disposal for the collection, transportation, and disposal of solid waste and construction debris and for providing temporary bin/rolloff services to approximately 450 commercial accounts and 240 residential accounts within the City. This agreement has resulted in payment of franchise fees to the City through March 1996 in the amount of $75,015.01 from Jack's Disposal and $16,105.61 from Curran's since both agreements' inception. During the time period since execution of these franchise agreements, staff has identified areas within each agreement which require clarification for both the City and each company. These areas include: 1. Provision for a late payment penalty of 10% per year for failure to pay after 30 days, and includes a provision that failure to pay within 60 days constitutes a breach of contract. 2. Definition of when grantee's right to an account terminates, and clarifies definition of an account as the physical location and address of the account as opposed to the individual I customer operating at the address. 3. Clarifies recycling and disposal reporting requirements as mandated under AB 939 and provides a method of clarifying discrepancies reportable to the State. 4. Clarifies definition of temporary bin service and includes specific time limitations which a temporary bin may remain in place. 5. Inclusion of a Breach of Contract clause. I Since December 1995, the City and representatives from Jack's Disposal and Curran's Disposal have met and negotiated the proposed language contained in the amendments. The grantees' have indicated their acceptance of the amendments by execution of said amendments prior to submission to the Council for adoption. I Staff recommends adoption of the attached First Amendment to Franchise Agreement for Jack's Disposal and for Curran's Disposal. L J s R. Howell ector of Public Services I FIRST AMENDMENT TO FRANCHISE AGREEMENT 2 THIS FIRST AMENDMENT TO FRANCHISE AGREEMENT made and entered into this 3 day of 1996, by and between the CITY OF SAN BERNARDINO, a charter 4 city of the State of California ("the City") and Curran's Rubbish Disposal, Inc., a California 5 corporation("Grantee"); 6 WITNESSETH: 7 WHEREAS,the parties entered into that certain Franchise Agreement dated May 25, 1995, 8 for the collection, transportation, and disposal of solid waste and construction debris and for 9 providing temporary bin/rolloff services ("the Franchise Agreement"), and 10 WHEREAS, Subsections A and F of Section 20 of said Agreement provided that 11 amendments and modifications could only be in writing, and 12 WHEREAS,the parties desire now to amend said agreement in order to specify, define and 13 clarify certain portions of said Agreement, 14 NOW, THEREFORE,the parties hereto agree as follows: 15 1. Subsection I of Section 2 of said Franchise Agreement is hereby amended to read as 16 follows: 17 "I. Temporary Bins. 18 `Temporary Bins' shall mean all bins which are placed by Grantee upon user's request at a location within the City limits for a period not to exceed 19 ninety(90) or one hundred eighty (180) days, as provided in Section 4.0 of this Agreement. Said period must be separated by a minimum lapse of thirty 20 (3 0)days prior to renewal of`Temporary Bin' status for any service rendered 21 by Grantee at said location." 22 2. Section 3 of said Franchise Agreement is hereby amended to read as follows: 23 443. Franchise Area: Grdfathered Accounts. The Franchise Area granted by this Franchise Agreement shall be all 24 residential, commercial, and industrial accounts within the City of San Bernardino; provided however, that such Franchise Area shall be limited to 25 those regular accounts `grandfathered' by the City which were acquired by the Grantee prior to January 1, 1994, and as are set forth on Exhibit `A'. 26 Temporary accounts shall not be limited to the grandfathered accounts and may be acquired by Grantee from time to time. Grantee's accounts in 27 geographical areas not currently within the City of San Bernardino but which are annexed by the City after the effective date shall become part of the 28 Franchise Area on the first day following the month such annexation is DAB/tbm [Jacks.Agr] 1 /,9.. I completed by the City. Within thirty(30)days after a written request therefor by the City, Grantee shall provide City with a written list of customer names 2 and service addresses for all current accounts in subsequently annexed areas which list shall be incorporated into this Agreement as part of Exhibit `A' . 3 City shall not intentionally solicit Grantee s accounts within the Franchise Area or Future Annexed Areas, however such accounts may discontinue 4 Grantee service and contract for City service at their option. Such accounts may not contract with any other service provider. In the event that a 5 customer elects to contract with the City for the services contemplated herein, and Grantee's services are discontinued for a period in excess of one(1)year, 6 said account may not return to Grantee. In the event a customer of Grantee listed on Exhibit `A' moves to a location where the City provides the services 7 which are the subject matter of this Franchise Agreement, the Grantee will no longer be permitted to provide such service to said customer. However, 8 Grantee shall be permitted to continue to provide service to any new customer opening and/or assuming the account for the original location, 9 unless the location is vacant for a period of one (1) year or more, in which 10 case the right of Grantee to provide such service is terminated." 11 3. Subsection A of Section 6 of said Franchise Agreement is hereby amended to read as follows: 12 "A. Grantee shall ensure that recycling programs are made available for 13 all of its customers served by this Franchise Agreement. Said recycling programs shall be subject to the approval of the City's Public Services 14 Director. However, said approval shall not be unreasonably withheld, nor shall the City or its Public Services Director impose conditions upon Grantee 15 which are greater than those included in any applicable recycling program adopted by the City, or more onerous than those diversion goals required by 16 AB 939, or any applicable subsequent state or federal legislation." 17 4. Subsection C is hereby added to Section 7 of said Franchise Agreement to read as follows: 18 "C. Any of the Franchise Fees not paid to the City within thirty (30)days after the close of each month shall become delinquent and shall thereafter 19 accrue interest at ten percent(10%)per annum,but shall not exceed the legal rate. The City shall cause written notice of such delinquency to be mailed or 20 delivered to Grantee. Any Franchise Fees which are delinquent for more than thirty(30)days after the date of said notice may constitute a material breach 21 of this Franchise Agreement pursuant to Subsection O of Section 20 hereof 22 if the City so elects." 23 5. Subsection D is hereby added to Section 13 of said Franchise Agreement to read as follows: 24 "D. Grantee's tonnage report as required by this Franchise Agreement 25 should be substantially consistent with the tonnage attributed to Grantee as reported by the County of San Bernardino and/or any other county. In the 26 event of a five percent (5%) or more discrepancy in the amount of tonnage attributed to Grantee in the respective reports generated by Grantee and any 27 county,the City shall cause written notice of such discrepancy to be mailed or delivered to Grantee and Grantee shall be given an opportunity to resolve 28 the discrepancy and/or submit to the county a copy of the tonnage report filed DAB/tbm [Jacks.Agr] 2 i 1 by Grantee with the City. Failure of the Grantee to do so within thirty (30) days of the date of said notice may constitute a material breach of this 2 Franchise Agreement pursuant to Subsection O of Section 20 hereof if the City so elects." 3 4 6. Subsection M of Section 20 of said Franchise Agreement is amended to read as follows: "M. Right to Audit. 5 Upon fifteen(15)days written notice,the City shall have the right to audit the 6 records of Grantee relevant to this Franchise Agreement. The audit shall be performed on Grantee's premises, during normal business hours, and at the 7 City's expense." 8 7. Subsection O is hereby added to Section 20 of said Franchise Agreement to read as 9 follows: 10 "O. Breach of Contract. 11 In the event either party to this Franchise Agreement elects to declare a material breach thereof by the other party, written notice of the purported 12 breach shall be mailed or personally delivered by the party declaring the breach to the other party. Said party shall have thirty(30)calendar days from 13 receipt of notice, including the date of receipt, in which to cure, remedy, or commence to cure or remedy the breach to the reasonable satisfaction of the 14 other party. If the purported breach is not cured or remedied within said thirty(30)day period to the reasonable satisfaction of the party declaring the 15 breach, or if the breach is such that it cannot be cured or remedied within such period,then if the party has not taken substantial steps to commence to 16 cure or remedy the breach, to the reasonable satisfaction of the other party, then the injured party may seek redress pursuant to Subsection B of Section 17 20 of this Franchise Agreement." 18 8. Except as amended herein,said Franchise Agreement shall remain in full force and effect. 19 20 /// 21 /// 22 /// 23 24 25 /// 26 27 28 DAB/tbm [Jacks.Agrl 3 I First Amendment, Curran's Rubbish Disposal, Inc. Franchise Agreement. 2 3 IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to Franchise Agreement on the day and date first above shown. 4 5 CURRAN'S RUBBISH DISPOSAL, INC. "GRANTEE" 6 7 By 8 J s h Avakiah, Prest ent 9 CITY OF SAN BERNARDINO 10 11 By 12 Tom Minor, Mayor 13 ATTEST: 14 15 BY 16 RACHEL CLARK, City Clerk 17 APPROVED AS TO FORM 18 AND LEGAL CONTENT: I 19 JAMES F. PENMAN 20 City Attorney 21 B 22 23 24 25 26 27 28 ff DAB/tbm [Jacks.Agr1 4 I FIRST AMENDMENT TO FRANCHISE AGREEMENT 2 THIS FIRST AMENDMENT TO FRANCHISE AGREEMENT made and entered into this 3 day of 1996, by and between the CITY OF SAN BERNARDINO, a charter 4 city of the State of California ("the City") and Jack's Disposal, Inc., a California corporation 5 ("Grantee"); 6 WITNESSETH: 7 WHEREAS,the parties entered into that certain Franchise Agreement dated May 25 p 1995 g Y � , 8 for the collection, transportation, and disposal of solid waste and construction debris and for 9 providing temporary bin/rolloff services ("the Franchise Agreement"), and 10 WHEREAS Subsections A and F of Section 20 of said Agreement Bement rovided that g p at 11 amendments and modifications could only be in writing, and 12 WHEREAS,the parties desire now to amend said agreement in order to specify, define and 13 clarify certain portions of said Agreement, i 14 NOW, THEREFORE,the parties hereto agree as follows: 15 1. Subsection I of Section 2 of said Franchise Agreement is hereby amended to read as 16 follows: 17 "I. Temporary Bins. 18 `Temporary Bins' shall mean all bins which are placed by Grantee upon user's request at a location within the City limits for a period not to exceed 19 ninety(90) or one hundred eighty (180) days, as provided in Section 4.0 of this Agreement. Said period must be separated by a minimum lapse of thirty 20 (30)days prior to r e newal of Temporary Bin' status for any service rendered 21 by Grantee at said location." 22 2. Section 3 of said Franchise Agreement is hereby amended to read as follows: 23 443. Franchise Area: Grandfathered Accounts. The Franchise Area granted by this Franchise Agreement shall be all 24 residential, commercial, and industrial accounts within the City of San Bernardino;provided however,that such Franchise Area shall be limited to 25 those regular accounts `grandfathered' by the City which were acquired by the Grantee prior to January 1, 1994, and as are set forth on Exhibit `A'. 26 Temporary accounts shall not be limited to the grandfathered accounts and may be acquired by Grantee from time to time. Grantee's accounts in 27 geographical areas not currently within the City of San Bernardino but which are annexed by the City after the effective date shall become part of the 28 Franchise Area on the first day following the month such annexation is DAB/tbm [Jacks.Agr] 1 1--) 1 completed by the City. Within thirty(30)days after a written request therefor by the City, Grantee shall provide City with a written list of customer names 2 and service addresses for all current accounts in subsequently annexed areas which list shall be incorporated into this Agreement as part of Exhibit `A' . 3 City shall not intentionally solicit Grantee's accounts within the Franchise Area or Future Annexed Areas, however such accounts may discontinue 4 Grantee service and contract for City service at their option. Such accounts may not contract with any other service provider. In the event that a 5 customer elects to contract with the City for the services contemplated herein, and Grantee's services are discontinued for a period in excess of one(1)year, 6 said account may not return to Grantee. In the event a customer of Grantee listed on Exhibit `A' moves to a location where the City provides the services 7 which are the subject matter of this Franchise Agreement, the Grantee will no longer be permitted to provide such service to said customer. However, 8 Grantee shall be permitted to continue to provide service to any new customer opening and/or assuming the account for the original location, 9 unless the location is vacant for a period of one (1) year or more, in which 10 case the right of Grantee to provide such service is terminated." 11 3. Subsection A of Section 6 of said Franchise Agreement is hereby amended to read as follows: 12 "A. Grantee shall ensure that recycling programs are made available for 13 all of its customers served by this Franchise Agreement. Said recycling programs shall be subject to the approval of the City's Public Services 14 Director. However, said approval shall not be unreasonably withheld, nor shall the City or its Public Services Director impose conditions upon Grantee 15 which are greater than those included in any applicable recycling program adopted by the City, or more onerous than those diversion goals required by 16 AB 939, or any applicable subsequent state or federal legislation." 17 4. Subsection C is hereby added to Section 7 of said Franchise Agreement to read as follows: 18 "C. Any of the Franchise Fees not paid to the City within thirty(30 days after the close of each month shall become delinquent and shall thereafter 19 accrue interest at ten percent(10%)per annum,but shall not exceed the legal rate. The City shall cause written notice of such delinquency to be mailed or 20 delivered to Grantee. Any Franchise Fees which are delinquent for more than thirty(30)days after the date of said notice may constitute a material breach 21 of this Franchise Agreement pursuant to Subsection O of Section 20 hereof 22 if the City so elects." 23 5. Subsection D is hereby added to Section 13 of said Franchise Agreement to read as follows: 24 "D. Grantee's tonnage report as required by this Franchise Agreement 25 should be substantially consistent with the tonnage attributed to Grantee as reported by the County of San Bernardino and/or any other county. In the 26 event of a five percent (5%) or more discrepancy in the amount of tonnage attributed to Grantee in the respective reports generated by Grantee and any 27 county,the City shall cause written notice of such discrepancy to be mailed or delivered to Grantee and Grantee shall be given an opportunity to resolve 28 the discrepancy and/or submit to the county a copy of the tonnage report filed DAB/tbm packs.Agr] 2 1 by Grantee with the City. Failure of the Grantee to do so within thirty (30) days of the date of said notice may constitute a material breach of this 2 Franchise Agreement pursuant to Subsection O of Section 20 hereof if the City so elects." 3 4 6. Subsection M of Section 20 of said Franchise Agreement is amended to read as follows: "M. Right to Audit. 5 Upon fifteen(15)days written notice,the City shall have the right to audit the 6 records of Grantee relevant to this Franchise Agreement. The audit shall be performed on Grantee's premises, during normal business hours, and at the 7 City's expense." 8 7. Subsection O is hereby added to Section 20 of said Franchise Agreement to read as 9 follows: 10 "O. Breach of Contract. 11 In the event either party to this Franchise Agreement elects to declare a material breach thereof by the other party, written notice of the purported 12 breach shall be mailed or personally delivered by the party declaring the breach to the other party. Said party shall have thirty(30)calendar days from 13 receipt of notice, including the date of receipt, in which to cure, remedy, or commence to cure or remedy the breach to the reasonable satisfaction of the 14 other party. If the purported breach is not cured or remedied within said thirty(30)day period to the reasonable satisfaction of the party declaring the 15 breach, or if the breach is such that it cannot be cured or remedied within such period,then if the party has not taken substantial steps to commence to 16 cure or remedy the breach, to the reasonable satisfaction of the other party, then the injured party may seek redress pursuant to Subsection B of Section 17 20 of this Franchise Agreement." 18 8. Except as amended herein,said Franchise Agreement shall remain in full force and effect. 19 /// 20 21 22 23 24 25 26 /// 27 /// 28 /// DAB/tbm [Jacks.Agr] 3 I First Amendment, Jack's Disposal, Inc. Franchise Agreement. 2 3 IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to 4 Franchise Agreement on the day and date first above shown. 5 JACK'S DISPOSAL, INC. "GRANTEE" 6 7 By 8 ko/ephVAvakidn, Prest ent 9 CITY OF SAN BERNARDINO 10 11 12 B Tom Minor, Mayor 13 ATTEST: 14 15 By 16 RACHEL CLARK, City C erk 17 APPROVED AS TO FORM 18 AND LEGAL CONTENT: 19 JAMES F. PENMAN 20 City Attorney 21 B 22 23 24 25 26 27 28 DAB/tbm [Jacks.Agr] 4