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Home My WebLink About03.f. Agreement with PaintCare, Inc. re reusable paint products given to public at no chargeCentral Contra Costa Sanitary District 3 BOARD OF DIRECTORS ' POSITION PAPER Board Meeting Date: April 17, 2014 Subject: AUTHORIZE THE GENERAL MANAGER TO ENTER INTO A CONTRACT WITH PAINTCARE, INC., TO RECEIVE PAYMENT FOR REUSABLE PAINT PRODUCTS COLLECTED AND GIVEN AWAY TO THE PUBLIC AT NO CHARGE BY THE DISTRICT'S HOUSEHOLD HAZARDOUS WASTE PROGRAM Submitted By. David Wyatt, HHW Supervisor Initiating Dept. /Div,: Engineering /Environmental Services REVIEWED AND RECOMMENDED FOR BOARD ACTION: D. Gemmell — Environmental Services Division Mgr. .� . �. K. Alm R. Bailey Counsel for the Dist r' t General Manager ISSUE: Board approval is being requested because of the potential for increased liability with the adoption of a contract with PaintCare, Inc. (PaintCare) for services the Household Hazardous Waste (HHW) Program provides through the Reuse Program. RECOMMENDATION: Authorize the General Manager to enter into a contract with PaintCare, Inc., to receive payment for reusable paint products collected and given away to the public at no charge by the District's Household Hazardous Waste Program. FINANCIAL IMPACTS: The contract with PaintCare has a value of approximately $20,000 a year in added revenue for the HHW Program. ALTERNATIVES /CONSIDERATIONS: The Board can direct the General Manager not to enter the contract with PaintCare and forego the extra revenue of approximately $20,000 a year. Doing so will not reduce the exposure to the District in regards to the Reuse Program and how it operates, as it will continue to give away paint without the PaintCare reuse contract. BACKGROUND: In March of 2013, the District amended its waste services contract with PSC, Inc. to allow PSC to use PaintCare, the product stewardship agency responsible for the California Architectural Paint Recycling Program. Through a point -of- sale recycling fee paid by consumers, PaintCare pays for all costs related to education, transportation, recycling and disposal of paints collected from over 500 collection sites in California. From March through December 2013, the District's HHW Program collected and managed over 600,000 pounds of latex and oil based paints at no cost by using the C:\ Users \danderson\AppData \Local \Microsoft \Windows \Temporary Internet Files \Content.Outlook \DVCG8C5G \PP PaintCare Agreement 4 -17 -14 Final.docx Page 1 of 2 POSITION PAPER Board Meeting Date: April 17, 2014 Subject: AUTHORIZE THE GENERAL MANAGER TO ENTER INTO A CONTRACT WITH PAINTCARE, INC., TO RECEIVE PAYMENT FOR REUSABLE PAINT PRODUCTS COLLECTED AND GIVEN AWAY TO THE PUBLIC AT NO CHARGE BY THE DISTRICT'S HOUSEHOLD HAZARDOUS WASTE PROGRAM PaintCare Program through PSC. This saved the District over $200,000 in transportation and disposal costs. PaintCare has offered to pay the District, on a per- container basis, approximately $20,000 a year for PaintCare - related paint given away through the Reuse Program at the HHW Facility. The Reuse Program at the HHW Facility has given away more than 5.7 million pounds of usable products since it opened 16 years ago. This saves the District approximately $150,000 each year in avoided transportation and disposal costs. A large part of what is given away is paint, which equals roughly 60 percent of all products given away. The contract with PaintCare requires the District to provide full indemnification to PaintCare and all associated parties. The exposure for the District has not increased; however there will be an increased risk in liability if the District must defend PaintCare and all associated parties. COMMITTEE RECOMMENDATION: The Real Estate, Environmental, and Planning Committee reviewed this item at the April 8, 2014 meeting and recommends authorizing the General Manager to enter the PaintCare contract. RECOMMENDED BOARD ACTION: Approve a HHW Program contract with PaintCare, Inc. for payment of usable paint products. Attached Supporting Document: 1. Draft Agreement with PaintCare, Inc. C:\ Users \danderson\AppData \Local \Microsoft \Windows \Temporary Internet Files \Content.Outlook \DVCG8C5G \PP PaintCare Agreement 4 -17 -14 Final.docx Page 2 of 2 ATTACHMENT 1 California Architectural Paint Recovery Program L DRAFT Direct Reuse Compensation Agreement This Agreement is made on this _ day of , 2013 ( "Agreement ") by and between Central Contra Costa Sanitary Distict located at 4797 Imhoff Place, Martinez, CA 94553 (the "District ") and PaintCare Inc., a Delaware corporation having its office at 1500 Rhode Island Ave., N.W., Washington, D.C. 20005. ( "PaintCare "). RECITALS A. Whereas, PaintCare is the stewardship organization of the California Architectural Paint Recovery Program (the "Program "), as set forth by Cal. Public Resources Code §§ 48700 — 48706 (2010) (the "Legislation "), that is organized to develop and implement a recovery program for post- consumer architectural paint; B. Whereas, the District is the Permit -by -Rule holder for one or more sites in California that serve as collection sites for post- consumer architectural paint under the PaintCare program; C. Whereas, the District runs a paint reuse program at one or more of its collection sites; and D. Whereas, PaintCare wishes to encourage paint reuse and to include the reuse component of District's collection services as part of the PaintCare program. Now, therefore, for and in consideration of the terms of this Agreement and the mutual promises and covenants contained herein, the parties hereto agree as follows. 1. TERM AND TERMINATION This Agreement is effective as of the date set forth above and will remain in full force and effect for a period of two (2) years. This Agreement will automatically renew for additional one (1) year terms, unless either party notifies the other in writing at least sixty (60) days in advance of the renewal term commencement date that the Agreement will not be renewed. Either party may terminate this Agreement at any time without cause upon sixty (60) days' written notice to the other party. 2. CONSIDERATION AND PAYMENT A. PaintCare shall pay the District as set forth in Attachment B ( "Pricing ") for any Direct Reuse of Program Products that District collects from the public at its collection sites. "Direct Reuse" means selling or giving away qualifying Program Products (as defined in Attachment A) to the public without combining them with other materials and without removing them from their original containers. B. The District shall require all customers who receive materials under the paint reuse program at its collection sites to sign the "Product Acceptance Form" in Attachment D. C. The District shall invoice PaintCare on a monthly basis, either by hardcopy or electronically. Invoices furnished by the District under this Agreement must include the information in Attachment C ( "Model Invoice "). PaintCare shall pay such invoices within thirty (30) days of receipt. The District shall submit all invoices to PaintCare at: To: PaintCare Inc. Attn: PaintCare Accounting Fax: (855) 385 -2020 E -mail: paintcare@bill.com Address: 1500 Rhode Island Avenue, NW Washington, DC 20005 3. REPORTING REQUIREMENTS In consideration of the payment herein, the District shall maintain the following records for at least three years: A. Records of the quantity of paint managed through Direct Reuse at each collection site; and B. Copies of all Product Acceptance Forms. 4. REPRESENTATIONS AND WARRANTIES A. The District represents, covenants and warrants that: (i) it will use its best efforts to operate its collection sites (including the paint reuse program) in a diligent, safe, and workmanlike manner that conforms with generally accepted industry and professional practices and the care and skill ordinarily exercised for such operations; (ii) it will use its best efforts to operate its collection sites (including the reuse program) in compliance with all applicable federal, state, and local statutes, laws, codes, ordinances, decrees, rules, regulations, requirements, permits, and orders, of any governmental authority, entity, or agency; and (iii) it will carry at its own expense throughout the term appropriate environmental and /or commercial general liability insurance for its collection sites. This provision can be satisfied by self insurance. B. The District shall indemnify and hold harmless PaintCare and its sole member (as identified in PaintCare's Certificate of Incorporation), and their member companies, officers, directors, stockholders, employees, successors, assigns, attorneys, agents, and invitees from and against all claims, suits, demands, obligations, losses, damages, liabilities, expenses, and causes of action of every kind whatsoever, whether based in contract, tort, statute, common law, or strict liability, which are claimed in any way to result from, arise out of, or be connected with the District's collection sites, the reuse program, or the performance of the District's obligations under this Agreement, except to the extent directly arising from Paintcare's intentional or negligent misconduct. C. The Service Provider (and not PaintCare) has title to and risk of loss and liability for the operation of its collection sites and the paint reuse program, including any risk of loss and liability under the federal Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq., or Carpenter - Presley- Tanner Hazardous Substance Account Act, Cal. Health & Safety Cade § 25300 et seq. Paintcare and the District acknowledge that this Agreement, with the exception of Exhibit B, most likely qualifies as a public document under the California Public Records Act (Cal. Gov. Code section 6250 et seg.). The parties further acknowledge that Paintcare claims that the pricing information in Exhibit B constitutes corporate proprietary information and is thus not subiect to disclosure under the California Public Records Act. To the greatest extent allowed law, District will not disclose the pricing information contained in Exhibit B. In the event that the District is sued by a member of the public seeking a copy of Exhibit B, Paintcare agrees to indemnify, protect, hold harmless and defend the District with counsel selected by the District in its sole and absolute discretion. 6. MISCELLANEOUS PaintCare has no responsibility for making day -to -day and critical decisions regarding the District's operations, including the collection, identification, handling and sorting, and reuse of Program Products. This Agreement does not create any partnership, employer- employee joint venture, or agency relationship between PaintCare and the District. This Agreement contains the entire understanding of ` the parties and supersedes any prior understandings and agreements, oral or written, between the parties regarding the subject matter of this Agreement. This Agreement cannot be modified or amended, except as mutually agreed by the parties in writing. This Agreement may be executed in counterparts, each of which will be deemed an original against the party who signed it. TO EVIDENCE THEIR AGREEMENT each of the parties has executed this Agreement, effective on the date set out above. Authorized Signatory PaintCare Inc. Print Name Authorized Signatory Central Contra Costa Sanitary District Print Name Print Title Print Title Date: Date: ATTACHMENT A: PROGRAM PRODUCTS Acceptable Products Unacceptable Products Interior and exterior paints: latex, 0 Paint thinner, mineral spirits, solvents acrylic, water - based, alkyd, oil- based, enamel (including textured coatings) Aerosol paints (spray cans) 40 Deck coatings and floor paints (including elastomeric) 9 Primers, sealers, undercoaters Stains Shellacs, lacquers, varnishes, urethanes (single component) Waterproofing concrete /masonry/wood sealers and repellents (not tar or bitumen - based) ® Metal coatings, rust preventatives 0 Field and lawn paints 0 Auto and marine paints Art and craft paints Caulking compounds, epoxies, glues, adhesives Paint additives, colorants, tints, resins Wood preservatives (containing pesticides) Roof patch and repair Tar and bitumen -based products 2- component coatings Deck cleaners • Traffic and road marking paints • Industrial Maintenance (IM) coatings IV Original Equipment Manufacturer (OEM) (shop application) paints and finishes M 0 912WETIUMU 9 .41911111C] Direct Reuse Rate PaintCare agrees to pay to $ X.XX per container the District for each container of Program Product that is actually taken by a public consumer from a Direct Reuse program, whether sold or given away without charge. i1i, iNK111 TOO '! • Service Provider: Central Contra Costa Sanitary District Collection Facility Location: 4797 Imhoff Place, Martinez, CA 94553 Unique Identifying Invoice Number: The above invoice represents, to the best of my knowledge, complete and accurate information regarding the Services rendered and for which the District seeks reimbursement through the Program. The attached backup documentation is accurate. Name: Company Title: Date: ATTACHMENT D: DIRECT REUSE WAIVER centrai contra costa HOUSEHOLD HAZARDOUS WASTE COLLECTION FACILITY Sanitary DWrict PRODUCT ACCEPTANCE FORM 11-77-6-L999199M (800) 646-1431 In taking these hazardous materials into my possession, I understand that the Centrai Contra Costa Sanitary District (CCCSD) does not guarantee that the material insgle the conlaner(s) is what the label descnbes • makes no warranties of representalkm oonaorning the physical andcheintcat charactenUtcs of the Product • makes no warranties or representations concemrig the risks to human health and safatyor to the environment frorri use • makes no warranties or reixesentations Concerning the proper handling use, storage or other management o(the product Upon taking these products into my possession, I agree to comply with all federal, state, and local laws and regulations pertaining to the transporting, storage, use, disposal of these products. I further agree to indemnify and holdharmiess CCCSO and Pain(Care, Inc., PaintCare Inc.'s sole member, and aft of their agents, employees, officers, directors, member Companies, and assigns from any and all liability, and any and aff claims, demands, costs, damages, and expenses of any type whatsoever, which are in any manner connected to my acceptanc% transportation, storage, use, disposal, or other management of this product(s). Date OVER WHEN