HomeMy WebLinkAbout20 - Approval of Proposed Residential Solid Waste Collection & Recycling ContractQ SEW Pp�T
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c�<,FORN'P City Council Staff Report
January 11, 2022
Agenda Item No. 20
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: David A. Webb, Public Works Director - 949-644-3311,
dawebb@newportbeachca.gov
PREPARED BY: Micah Martin, Deputy Public Works Director,
mmartin@newportbeachca.gov
PHONE: 949-644-3059
TITLE: Approval of Proposed Residential Solid Waste Collection & Recycling
Contract with CR&R Inc.
ABSTRACT:
The City of Newport Beach (City) currently has two residential solid waste hauling
contracts with CR&R Inc. (CR&R). The first contract is known as the City Contract
(C-5649), encompassing a majority of the community, with the exception of Newport
Coast and Santa Ana Heights, which receives residential refuse service from the Costa
Mesa Sanitary District. The second contract is known as the Newport Coast Contract
(C-3942), which came with the annexation of the Newport Coast area from Orange
County in 2001, and was amended in 2007. Both of the City's residential solid waste
hauling contracts with CR&R have been in place for many years and would terminate on
the date the new contract goes into effect, which is January 15, 2022, should the City
Council approve the new contract.
The City's residential waste collection program must be modified in order to comply with
recent changes in State of California (State) law associated with the collection,
processing, and disposal of solid waste. Per these requirements, the residential solid
waste collection program must include a three -cart, source -separated, collection program
for solid waste, mixed recyclables, and organic waste recycling, defined as food waste
and landscaping waste items, by January 2022. Therefore, staff is requesting City Council
approval of a Residential Solid Waste Collection & Recycling Contract with CR&R that
reflects the new, State -mandated program components and consolidates the City and
Newport Coast Contracts under one agreement.
RECOMMENDATION:
a) Determine this action is exempt from the California Environmental Quality Act (CEQA)
pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because
this action will not result in a physical change to the environment, directly or indirectly;
and
b) Approve a new Residential Solid Waste Collection & Recycling Contract with CR&R
to replace the two existing contracts (C-5649 & C-3942), beginning on January 15,
2022, at an initial monthly rate of $24.08 per residential household (paid by the City)
and a contract term of eight years with two optional one-year contract extensions.
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Approval of Proposed Residential Solid Waste Collection and
Recycling Contract with CR&R Inc.
January 11, 2022
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DISCUSSION:
Background
State Assembly Bill 939 passed in 1989 and requires the City to divert at least 50 percent
of its waste away from the landfills or face monetary penalties of up to $10,000 per day.
More recent legislation, including Senate Bill 1383, now requires cities to provide
residential organic waste recycling services, which include programs to collect and divert
food scraps and landscaping waste away from landfills.
There are currently two primary solid waste hauling contracts for the residential areas
within the City, both of which are serviced by CR&R. The main City Contract that provides
trash and recycling collection service for over 20,000 households has been in place since
November 2013, when CR&R was selected after a competitive procurement process to
take over the formerly City -operated residential refuse collection operation. The Newport
Coast Contract, which provides trash and recycling service to over 4,000 households, has
been in place since 2007. CR&R currently receives compensation from the City for
residential collection in the amount of approximately $5 million per year (a per household
monthly cost equivalent to approximately $13.63 for the Newport Coast Contract and
$15.55 for the City Contract). As identified under Section 6.04.140 of the Newport Beach
Municipal Code, and associated with prior past practices, residents have not been
charged any amount for residential refuse collection service. Residents served under the
City Contract have paid a fee for required recycling services, but residents served under
the Newport Coast Contract have not. The net contracted cost for residential refuse
service is paid for out of the City's General Fund.
On November 24, 2020, the City Council was briefed on the new and pending State
requirements, as well as the status of preliminary contract negotiations with CR&R. The
City Council then directed staff to extend CR&R's current City Residential Solid Waste
Contract (C-5649) to a new expiration date of October 1, 2021, and continue negotiations
with the intent to consolidate both current contracts (City and Newport Coast) into a new,
citywide Residential Solid Waste Collection & Recycling Contract that incorporates the
necessary means and methods to cost effectively and efficiently achieve compliance with
current and pending State mandates, laws and regulations. Staff completed the extension
of the City Residential Solid Waste Contract (C-5649), resulting in both residential refuse
contracts to conclude on October 1, 2021. These contracts were subsequently extended
until January 1, 2022, and then again by the City to January 31, 2022, in order to complete
the contract negotiation process.
After preliminary contract terms and cost negotiations were completed, the City's
consultant, EcoNomics, and staff presented the two CR&R proposed contract rate options
to the City Council at its January 26, 2021 meeting. The proposal included the following
two rate options:
Option One — Fixed per household rate with annual CPI adjustments
This proposal was for a fixed (City paid) monthly per household rate of $24.08 with an
annual CPI adjustment. The contract included an eight-year term with two, one-year
extension options. This option was a fixed rate and did not require further contract
negotiations.
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Approval of Proposed Residential Solid Waste Collection and
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January 11, 2022
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Option Two — Initial lower fixed per household rate, with a reconciliation of true
cost and corresponding adjustment to new fixed per household rate in year
three, with annual CPI Adjustments
This proposal was an initial monthly per household rate of $22.69 with an annual 2%
CPI adjustment for years 1 and 2, with reconciliation of the rate in year three. This
option also included a monthly rate cap of $26.31 per household associated with the
year three reconciliation process to provide a safeguard against unknown upward
costs.
The City Council determined that Option Two had too many unknown variables
associated with compliance, reconciliation of data and costs, and further negotiations that
had more risk of a larger rate increase in years three through eight. Option One was found
to be a fair, competitive, market price that is in close proximity to recently bid residential
refuse rates of similar Orange County cities. The Council then directed staff to continue
negotiating with CR&R to secure Option One pricing, and draft a new residential contract
at an initial monthly rate of $24.08 per residential household, with annual CPI
adjustments, and a contract term of eight years, with two, one-year extension options.
Should the City Council approve the new agreement, it will commence on January 15,
2022, and run until December 31, 2029, with the ability to obtain two, one-year contract
extensions that would allow the contract to run through December 31, 2031.
Proposed Contract
The proposed contract includes improved program efficiency, which will reduce impacts
to residents through the incorporation of new and improved collection and processing
methods. Further, the contract will provide required organic waste collection and recycling
cart services in addition to the mixed recyclable cart services for all residents, bringing
the City's refuse program into compliance with State mandates. The new contract
combines both the Newport Coast and City residential collection franchise areas into a
single service area. Key features of the proposed contract are as follows:
• CR&R will change service collection days for approximately 14,000 residential units
to optimize routes, reduce truck traffic, reduce emissions, and provide timely
collection routes that do not extend into the evening hours.
• CR&R will deliver a green -lidded organics recycling cart to every household in the
City beginning January 31, 2022. This container, which will be collected weekly by
CR&R, will accept co -collected landscaping and food waste, per State
requirements. All residents will receive extensive outreach information prior to
receiving the organics cart.
• CR&R will conduct door-to-door distribution of two -gallon kitchen pails to all
households following distribution of the organics carts. Kitchen pails will include an
organics recycling `welcome' toolkit describing to residents how to participate in the
program.
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Approval of Proposed Residential Solid Waste Collection and
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January 11, 2022
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• CR&R will produce a training video for residents, as well as social media content,
that can be distributed via the City's social media channels to inform residents of
the new programs.
• CR&R will maintain an average fleet age of seven years with no vehicles older than
10 years. The City will receive eight, brand new collection vehicles in 2022, including
four split -body rear -load vehicles that will be able to service recycling and organics
waste carts in a single -pass to reduce disruptions to space -constrained
neighborhoods on Balboa Island and the Balboa Peninsula. CR&R will phase in 11
more new vehicles by 2024, effectively replacing its entire existing fleet with new
vehicles.
• All vehicles will be equipped with collision avoidance technology to alert the drivers
of adjacent pedestrians and cyclists. CR&R will continue to observe exclusion zones
around schools in the morning and afternoon during which they will not operate their
vehicles near these locations.
• CR&R will provide a dedicated customer service line for Newport Beach residents
and has committed to a maximum 90 -second average customer hold time or it will
face liquidated damages.
• Annual rate and fee adjustments will be limited to annual CPI inflation adjustments
that will be capped at a 5% maximum each year.
• CR&R will replace all existing recycling and trash carts with newer carts by attrition
to align color -coding with state -mandated color -coding requirements (new trash
carts are granite with black lids, and new mixed recycling carts are granite with light -
blue lids and decals, and new organics carts are granite with green lids and decals).
• There will be two, full-time recycling coordinators employed by CR&R for 18 months
to provide residential outreach and education on the new collection cart system,
do's and don'ts of the recycling programs, and reduction of materials contamination
per SB 1383 requirements, as well as to ensure full residential participation. There
will be one full-time recycling coordinator employed by CR&R for the remainder of
the contract term after the initial 18 -month transition process.
• CR&R will provide up to five, free bulky item pick-ups (with up to five items each)
per household per year at no charge to residents.
• The existing household hazardous waste, sharps, and e -waste collection programs
will continue.
• CR&R will provide extensive auditing, monitoring, and reporting of contamination as
required by State law.
• CR&R will continue to provide monthly lease payments to the City to operate the
City's transfer station.
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Approval of Proposed Residential Solid Waste Collection and
Recycling Contract with CR&R Inc.
January 11, 2022
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A high-level timeline for contract implementation is included below. An extensive outreach
campaign to residents, that includes digital and print touchpoints, will accompany this
timeline to ensure residents are aware of the changes to the City's solid waste and
recycling collection program.
• January 11, 2022 — requested City Council approval of new contract
• January 15, 2022 — contract effective start date
• February — March 2022 — CR&R to deliver organics recycling carts to all
households
• April 1, 2022 — residents receive their first quarterly invoice from CR&R for any
elected extra carts services (valet, extra bulky item pick-ups, non -containerized
manual collection)
Volumes and Cart Sizes
This revised collection program will include the provision of up to 96 gallons of City paid
for municipal solid waste (and appropriate desired cart(s) to accommodate this 96 -gallon
volume), up to two, 96 -gallon recycling carts, and up to one, 96 -gallon organics cart at no
charge to residents. There will be three differing cart sizes available to residents,
32 gallons, 64 gallons, and 96 gallons. Residents will be able to choose the cart sizes
that will work best for their individual refuse and recycling management needs. Requests
for additional carts, beyond the free levels provided for by the City, will result in small,
direct charges by CR&R. After an assessment of the number of current carts per resident
is completed, CR&R will send a notice to all residents prior to February 15, 2022 to notify
them of impending charges if they have more than the standard number of carts as
outlined above. Residents may request that CR&R pick up their additional carts prior to
being charged. There will be a grace period during which time any charges for additional
carts will be withheld by CR&R until April 1, 2022, to allow for residents to adjust to the
new service provisions included in the contract. The contract includes the option for the
City to extend the grace period for the additional cart charges at the City's sole expense
beyond April 1, 2022, if the City Council determines that residents need more time to
adjust to the new programs.
Sorting Requirements
The new contract will also require that all waste and recycling materials be resident -sorted
and placed within the appropriate collection carts so as to further automate the collection
process. If a resident fails to place waste items within the collection cart, CR&R's driver
must exit the cab and clean up any waste items on the ground or spilling over the brim of
the container. Non -containerized and/or overflowing waste carts not only reduce the
driver's efficiency, but they also increase program costs, reduce recycling of waste, cause
water quality and vector problems, and aesthetic and wind-blown trash issues. As such,
the contract includes a `non -containerization' fee of $2.47 for the second and subsequent
instances of non -containerized materials over a six-month period to dissuade residents
from overfilling their carts and to account for the loss of productivity from the driver. This
fee was calculated based on the actual driver time needed to clean-up/pick-up non -
containerized materials.
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January 11, 2022
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Extra Services
Currently, residents are allowed unlimited bulky item collection services at no charge.
This new contract would limit free bulky item collections to five pick-ups (with up to five
items each) per household per year. CR&R will charge the resident for the sixth and
subsequent bulky item collections.
Door-to-door collection services for household hazardous waste will continue to be
unlimited.
An additional auxiliary service that will be available to residents for a fee will be standard
and premium valet services. Valet services, in space constrained areas of the city utilizing
rear -loaded collection vehicles, will be considered standard if collection personnel have
to move carts less than 15 feet from where the truck is stationed for service. This would
apply typically where the cart is placed at the side of the house or behind a gate. In
automated, side -load collection areas, anytime a driver has to dismount from the cab of
the truck to service a cart that is not placed out by the curb, and is within 15 feet from
where the truck is stationed, it will be considered standard valet service. CR&R has
identified 9,967 households currently with standard valet service.
There will also be a premium valet service available to residents. This type of service is
considered premium if a customer requests service of a cart greater than 15 feet from
where the truck is stationed for service. This level of service is intended for customers
that want carts moved from the garage, back yard or side yard, and the driver has to leave
the cab to provide service. This service is more likely to be provided in the less
constrained areas. CR&R has identified 29 households currently with premium valet
service. The new contract will continue to provide valet service to disabled residents at
no charge.
In total, per the proposed new contract, CR&R will direct bill residents quarterly for the
following extra services:
EXTRA SERVICE
AMOUNT CHARGED
PER MONTH
Extra Black Lid Trash Cart
$6.09
Extra Blue Lid Recycling Cart (third+ cart)
$3.41
Extra Green Lid Organics Cart
$4.11
Standard Valet Service
$8.30
Premium Valet Service
$27.68
Non -containerized manual collection (charged for second
and subsequent offense(s) in a six-month period)
$2.47
Extra Bulky Item Pick-up u to five items
$13.95
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Approval of Proposed Residential Solid Waste Collection and
Recycling Contract with CR&R Inc.
January 11, 2022
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Contract Compliance
Strict compliance language was added to the new contract to further ensure contracted
services levels, state requirements, and City expectations are met. These measures
include clear language related to SB 1383 reporting requirements, improved education
and outreach requirements, and liquidated damages for 55 specific instances of
contractor non-performance. The list of categories for potential liquidated damages
includes collection reliability, collection quality, responsiveness to customer, timeliness of
report submission to the City, billing accuracy, required personnel, vehicles and
equipment maintenance, and compliance and reporting audits as required by the State.
Examples of the liquidated damages in the new contract include damages for non -
collection of residents' carts, damages for failure to clean up waste, damages for failure
to respond to a customer complaint within a timely manner, etc. The new contract also
requires the contractor to distribute annual brochures to include images of carts, the
kitchen pail, acceptable/unacceptable materials, special service information, information
on how to use the kitchen pail program, use of compostable bags, a toll-free number, a
link to the website, a link to a how-to video, extra cart charge information, containerization
requirements, information on how to participate in special services (bulky items, sharps,
e -waste, u -waste), information on the do's and don'ts of the organics program, information
on different cart options, legislative requirements, etc.
Recycling and Organics Cart Distribution and Outreach
Under the current City contract, the use of mixed dry recyclable carts is voluntary (with
over 75% on household currently participating). Under the new contract, resident sorting
and use of mixed dry recyclable carts will be a mandatory requirement to comply with
State law. To prepare for this change, mixed dry recyclable carts were recently distributed
in October 2021 to the approximately 6,700 households that did not already have them.
SB 1383 requires that the new organics collection and recycling program be underway in
January 2022. The City and CR&R have been working and planning to implement this
program, with the new organics carts scheduled to be distributed to all households over
an eight -to -ten week period starting January 31, 2022. Additionally, the door-to-door
distribution of the organics program kitchen pail will occur following the organics cart roll-
out. It is anticipated that the roll-out of the organics carts and pails will be completed by
mid-April. In preparation for this roll-out, the City and CR&R have been providing
information to residents to apprise and educate them of the new program. This has
included frequent advisories and discussion at various City Council, Town Hall, HOA, and
other community meetings; the introduction of eight displays throughout the city of the
three carts and the kitchen pail with educational materials in December 2021; a mailer to
all city residents introducing the program in December 2021; introductory information on
the program in the Newport Navigator in November 2021; an in-depth program guide
available at various locations in the city in December 2021 as well as mailed to all
residents in mid-January 2022; and a letter alerting all residents to route changes in
mid-January 2022. In addition, the City website was updated to include in-depth
information on the recycling programs in December 2021.
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Approval of Proposed Residential Solid Waste Collection and
Recycling Contract with CR&R Inc.
January 11, 2022
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Starting in November 2021, NBTV has included videos introducing and providing in-depth
information on the program. Starting in December 2021, the City has also implemented a
comprehensive recycling outreach communication program through its social media
channels, including Facebook, Twitter and Instagram. All of the communications,
including website updates, NBTV videos, and social media are on-going and will continue
to occur to keep residents updated and to encourage participation in the recycling
programs.
Program Costs
The current City Contract (C-5649), contains a monthly rate of $13.63 per household, and
the current Newport Coast Contract (C-3942) contains a monthly rate of $15.55 per
household for residential waste collection and recycling services. This results in a
combined monthly cost of $413,039, and a combined annual cost of $4,956,471.
Under the proposed, new contract, the City Contract and the Newport Coast Contract
have been consolidated into one, Residential Solid Waste Collection & Recycling
Contract agreement with CR&R that incorporates the new programs, with a monthly rate
of $24.08 per household. This results in a monthly cost of $651,083, and an annual cost
of $7,813,005. This would result in an initial increase to the City's total annual residential
waste collection and recycling services cost of approximately $2.9 million and would
include implementation of a source -separated refuse, recycling and organic collection
program that meets State mandates.
Staff is now requesting City Council approval of the proposed new residential contract
with CR&R to replace the two existing Residential Solid Waste Collection & Recycling
Contracts, beginning on January 15, 2022, at an initial monthly cost of $651,083 (or
approximately $24.08 per residential household) and a contract term of eight years with
two, one-year contract extensions.
Changes to Collection and Street Sweeping Days
If the new contract is approved, some residents will have their refuse and recycling
collection day adjusted beginning in February 2022. The proposed collection day route
changes are necessary to provide for the expanded recycling programs as well as provide
collection service to residents in a more efficient and less disruptive manner. These
changes will also help balance out loads to ensure all routes can be collected on time,
increase safety by reducing the number of truck trips and the daily number of miles
traveled by collection trucks, further avoid high traffic and congested areas, as well as
reduce noise and truck emissions. Residents affected by the changes will be notified by
the City and CR&R.
Further, as it is good practice to try to have the street sweeping day follow the refuse
collection day, the changes in refuse collection days will also warrant some changes in
the current street sweeping days. The street sweeping day changes, including changes
to posted "No -Parking for Street Sweeping" will begin in late February after the refuse
route changes have been made. The proposed street sweeping route changes are also
included on the City Council's January 11, 2021 agenda.
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Approval of Proposed Residential Solid Waste Collection and
Recycling Contract with CR&R Inc.
January 11, 2022
Page 9
FISCAL IMPACT:
The adopted budget includes sufficient funding for this contract. It will be expensed to the
Residential Refuse Collection account in the Public Works Department, 0108051-851006.
In anticipation of this contract amendment, staff budgeted for the increased costs during
the FY 2021-22 budget process.
As noted above, the initial increase to the City's residential waste collection and recycling
services will be approximately $2.9 million per year. This increased cost for service will
be partially offset by the $1,361,000 increase in annual revenue associated with the
updating of the City's Recycle Fee approved in March 2021. Considering this, the portion
of the annual General Fund program cost increase that will not be offset by additional
revenue is estimated to be approximately $1,513,680, increasing by CPI in future years.
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this action is not subject to the California
Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not
result in a direct or reasonably foreseeable indirect physical change in the environment)
and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA
Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no
potential for resulting in physical change to the environment, directly or indirectly.
NOTICING:
This agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item). Additionally, various
announcements and public information outreach effort on this item have occurred as well
as the City Council had significant discussions on this proposed new contract at their
regular meetings on November 24, 2020 and January 26, 2021, to which City Council
directed staff to prepare a new contract with CR&R to replace their two existing contracts.
ATTACHMENT:
Attachment A — Residential Solid Waste Collection & Recycling Contract
20-9
ATTACHMENT A
AGREEMENT FOR THE COLLECTION, TRANSPORTATION, PROCESSING AND
DIVERSION OF RESIDENTIAL RECYCLABLE MATERIALS, FOOD SCRAPS,
GREEN WASTE AND COLLECTION, TRANSPORTATION AND DISPOSAL OF
MUNICIPAL SOLID WASTE
BETWEEN
THE CITY OF NEWPORT BEACH
AND
CR&R, INCORPORATED
2022
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Intentionally left Blank
20-11
Table of Contents
ARTICLE 1: DEFINITIONS................................................................................................................12
1.01 Definitions.....................................................................................................................12
ARTICLE 2: REPRESENTATIONS AND WARRANTIES OF CONTRACTOR ...........................13
2.01 Legal Status...................................................................................................................13
2.02 Authority.......................................................................................................................13
2.03 Agreement Duly Executed..............................................................................................13
2.04 No Conflict with Applicable Law or Other Documents....................................................13
2.05 No Litigation..................................................................................................................13
2.06 Financial Condition........................................................................................................14
2.07 Expertise........................................................................................................................14
2.08 Contractor's Investigation..............................................................................................14
ARTICLE 3: TERM OF AGREEMENT..............................................................................................15
3.01 Effective Date................................................................................................................15
3.02 Term..............................................................................................................................15
3.03 Opportunity for Contractor to Earn Extensions of Term.................................................15
3.04 Conditions to Effectiveness of Agreement......................................................................15
3.04.A Obligation of City to Perform........................................................................................................................................15
3.04.A.1 Accuracy of Representations.....................................................................................................................................15
3.04.A.2 Absence of Litigation....................................................................................................................................................15
3.04.A.3 Furnishing of Bond and Guaranty...........................................................................................................................16
3.04.A.4 Furnishing of Evidence of Insurance.....................................................................................................................16
3.04.13 Obligation of Contractor to Perform.........................................................................................................................16
3.04.13.1 Absence of Litigation....................................................................................................................................................16
3.04.0 Notice...........................................................................................................................................................................................16
ARTICLE 4: COLLECTION OF RESIDENTIAL RECYCLABLE MATERIALS, FOOD
SCRAPS/GREEN WASTE, MUNICIPAL SOLID WASTE AND OTHER MATERIALS.............18
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4.01 Scope of Work — General...............................................................................................18
4.02 Growth and Changes in City...........................................................................................19
4.03 Implementation Plan.....................................................................................................19
4.04 Residential MSW Collection...........................................................................................20
4.05 Residential Recyclable Materials and Food Scraps/Green Waste Diversion Programs. ...21
4.06 Other Services and Special Services...............................................................................21
4.07 Hours of Collection........................................................................................................22
4.07.A Holidays.....................................................................................................................................................................................22
4.07.13 Coordination With Street Sweeping..........................................................................................................................23
4.07.0 Collection Near Schools.....................................................................................................................................................23
4.08 Collection Standards......................................................................................................23
4.08.A Care of Property....................................................................................................................................................................23
4.08.13 Noise............................................................................................................................................................................................24
4.08.0 Private and Public Streets...............................................................................................................................................24
4.08.1) Customer Privacy.................................................................................................................................................................26
4.09 Litter Abatement...........................................................................................................27
4.09.A Minimization of Spills........................................................................................................................................................27
4.09.13 Clean Up of Existing Litter...............................................................................................................................................27
4.09.0 Report of Accumulation of MSW, Other Materials and Unauthorized Dumping .............................28
4.09.1) Covering of Loads.................................................................................................................................................................28
4.10 Hazardous Waste...........................................................................................................29
4.10.A General.......................................................................................................................................................................................29
4.10.13 Notice to Customers............................................................................................................................................................30
4.10.0 Contractor to Segregate and Dispose........................................................................................................................30
4.10.1) Operating Procedures and Employee Training..................................................................................................31
4.10.E Hazardous Waste Diversion Records........................................................................................................................31
4.11 City's Right to Change Scope of Work.............................................................................31
4.12 Attendance At Meetings With City.................................................................................32
4.13 Ownership of Municipal Solid Waste and Recyclable Materials......................................33
4.14 Roll Off Boxes at City Yard and Transfer Station.............................................................34
4.15 Contamination Warning Notice......................................................................................34
4.16 Proposals For New, Enhanced or Expanded Diversion Programs....................................34
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ARTICLE 5: TRANSPORTATION AND DISPOSAL OF MSW OR PROCESSING OF
RECYCLABLE MATERIALS............................................................................................................... 36
5.01 Transportation and Disposal of MSW.............................................................................36
5.02 Transportation of Single Stream Recyclable Materials and Single Material Recyclable
Materials...............................................................................................................................38
5.03 Transportation of Co -Collected Food Scraps/Green Waste.............................................38
5.04 City Right to Unilaterally Direct Change in Processing Facility........................................39
5.05 Designated Processing Facilities Unavailable..................................................................39
5.06 Contractor Request for Change of Processing Facility.....................................................40
ARTICLE 6: PROCESSING AND MARKETING OF RECYCLABLE MATERIALS ..................... 43
6.01 General..........................................................................................................................43
6.02 Permits..........................................................................................................................43
6.03 Delivery of Residue to Landfill........................................................................................43
6.04 Clean MRF and Compost Facility Operating Requirements.............................................43
6.05 Use of Biomass or Transformation Facilities Prohibited..................................................45
6.06 Contractor Incentive/Possible Extension(s) of Agreement..............................................45
6.06.A Phase 1 Extension Incentive..........................................................................................................................................45
6.06.13 Phase 2 Extension Incentive..........................................................................................................................................46
6.06.0 Failure to Meet Phase 1 or Phase 2 Extension Requirements....................................................................46
6.06.1) Notice of Extension or Failure to Earn Extension..............................................................................................47
6.07 Marketing of Recovered Materials, Compost and Other Products..................................47
6.08 Limits on Modes of Disposition......................................................................................47
6.09 City Access to Processing Facilities.................................................................................48
ARTICLE 7: EQUIPMENT, FACILITIES AND PERSONNEL........................................................ 49
7.01 General..........................................................................................................................49
7.02 Facilities........................................................................................................................49
7.02.A General.......................................................................................................................................................................................49
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7.03 Vehicles.....................................................................................................................
49
7.03.A General.......................................................................................................................................................................................49
7.03.13 Alternative Fuel Vehicles/Use of City Fueling Station....................................................................................
51
7.03.0 Vehicle Identification.........................................................................................................................................................52
7.03.1) Cleaning and Maintenance.............................................................................................................................................52
7.03.D.1 General................................................................................................................................................................................52
7.03.D.2 Cleaning..............................................................................................................................................................................53
7.03.D.3 Painting...............................................................................................................................................................................53
7.03.D.4 Maintenance.....................................................................................................................................................................54
7.03.D.5 Repairs................................................................................................................................................................................54
7.03.D.6 Storage................................................................................................................................................................................54
7.03.D.7 Leaking Vehicles.............................................................................................................................................................55
7.03.D.8 DMV Registration/BIT Inspections/Brake Inspections................................................................................55
7.03.E Operation..................................................................................................................................................................................56
7.03.17 Vehicle Mirrors.....................................................................................................................................................................57
7.03.G Collision Avoidance System...........................................................................................................................................57
7.03.H Other Required Vehicle Technological Capabilities........................................................................................58
7.04 MSW, Recyclable Materials and Food Scrap/Green Waste Carts.................................61
7.04.A General.......................................................................................................................................................................................61
7.04.13 Cart Ownership.....................................................................................................................................................................61
7.04.0 Cart Distribution...................................................................................................................................................................61
7.04.1) Repair, Replacement, and Exchange.........................................................................................................................62
7.04.E Cleaning and Maintenance of Contractor -Furnished Carts..........................................................................62
7.05 Personnel...................................................................................................................63
7.05.A General.......................................................................................................................................................................................63
7.05.13 Driver Qualifications..........................................................................................................................................................64
7.05.0 Uniforms....................................................................................................................................................................................64
7.05.1) Written Operating Procedures....................................................................................................................................64
7.05.E Safety Training.......................................................................................................................................................................65
7.05.17 No Gratuities............................................................................................................................................................................66
7.05.G Employee Conduct and Courtesy.................................................................................................................................66
7.05.H Provision of Two Recycling/Public Education Coordinators.....................................................................67
7.05.H.1 Recycling Coordinator Experience, Background and Training..................................................................67
7.05.H.2 Documentation of Recycling Coordinator Training........................................................................................68
7.05.H.3 Deadline for Providing Two (2) Fully Trained Recycling Coordinators................................................69
7.05.I Provision of Operations and Customer Liaison to City....................................................................................70
7.05.J Initial Hiring.............................................................................................................................................................................72
7.05.K Ongoing Training and Testing......................................................................................................................................72
7.05.L Use of Workers Not Employed by Contractor......................................................................................................73
7.05.M Provision of Senior Manager(s) Responsible For Development and Marketing of Compost
andCompost Products.....................................................................................................................................................................74
7.05.N Provision of Dedicated Route Supervisor..............................................................................................................74
ARTICLE 8: OTHER COLLECTION -RELATED SERVICES.......................................................... 75
8.01 Billing............................................................................................................................75
8.01.A General.......................................................................................................................................................................................75
8.01.13 Content for City Mailings.................................................................................................................................................75
8.01.0 Delinquent Accounts.......................................................................................................................................................... 75
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8.02 Billing Records...............................................................................................................76
8.03 City Access to Billing Information...................................................................................76
8.04 Public/Customer Service and Accessibility.....................................................................76
8.04.A Office Hours and Location...............................................................................................................................................76
8.04.13 Availability of Representative......................................................................................................................................76
8.04.0 Telephone................................................................................................................................................................................. 77
8.04.C.1 Call Center and Staffing................................................................................................................................................77
8.04.C.2 Call Answering, Telephone System Capabilities and Customer Service.................................................78
8.04.C.3 Additional Call Center Personnel During Food Scrap/Green Waste Program Rollout, Re-routing
of City and New Charges to Customers...................................................................................................................................81
8.04.C.4 Potential Future Surges in Telephone Volumes In The Event of Additional Program Rollout(s)
orMajor Service Changes.............................................................................................................................................................83
8.04.C.5 Regular and Emergency Telephone Numbers..................................................................................................84
8.04.1) Correspondence....................................................................................................................................................................85
8.04.E Electronic Subscription for Basic Service, Extra Services and Payment of Bills for Extra
Services..................................................................................................................................................................................................... 85
8.04.17 Maps, Schedules, Consumer Information...............................................................................................................85
8.04.G Website......................................................................................................................................................................................86
8.05 Service Complaints........................................................................................................87
8.06 Customer Service Surveys..............................................................................................89
ARTICLE 9: RECORD KEEPING, REPORTING, INSPECTIONS AND AUDITS ....................... 90
9.01 General..........................................................................................................................90
9.02 Record Keeping..............................................................................................................90
9.03 Reporting.......................................................................................................................91
9.03.A Reports Listed in Attachment K...................................................................................................................................91
9.03.13 Reports Listed in Attachment N...................................................................................................................................91
9.04 Inspection by City..........................................................................................................91
9.05 Compliance Reporting....................................................................................................93
9.05.A Material Discrepancy in Data Reported..................................................................................................................94
9.06 Annual Route Audit.......................................................................................................95
9.07 Characterization Studies and In -Field Container Contamination Audits ..........................96
9.07.A Characterization Studies.................................................................................................................................................96
9.07.13 In -Field Container Contamination Audits..............................................................................................................97
9.08 Annual City Review of Contract Audits and Results........................................................97
9.09 Reporting of Adverse Information..................................................................................98
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ARTICLE 10: INDEPENDENT CONTRACTOR.............................................................................. 99
10.01 Contractor an Independent Contractor........................................................................99
10.02 No Partnership or Joint Venture Created......................................................................99
10.03 No Entitlement to City Benefits....................................................................................99
ARTICLE 11. INDEMNITY, INSURANCE, BOND........................................................................101
11.01 General Indemnification............................................................................................101
11.02 Insurance...................................................................................................................102
11.02.A Types and Amounts of Coverage...........................................................................................................................102
11.02.A.1 Workers' Compensation and Employer's Liability....................................................................................103
11.02.A.2 Comprehensive General Liability (and Automobile Liability)..............................................................103
11.02.A.3 Pollution Liability.....................................................................................................................................................104
11.02.A.4 Physical Damage.......................................................................................................................................................105
11.02.13 Acceptability of Insureds...........................................................................................................................................105
11.02.0 Required Endorsements.............................................................................................................................................105
11.02.1) Delivery of Proof of Coverage.................................................................................................................................107
11.02.E Other Insurance Requirements..............................................................................................................................108
11.03 Faithful Performance Bond........................................................................................109
11.04 Alternative Security...................................................................................................110
11.05 Hazardous Waste Indemnification.............................................................................110
11.06 Integrated Waste Management Act Indemnification ..................................................114
11.07 Intellectual Property Indemnification.........................................................................115
11.08. Notice of Claim.........................................................................................................115
ARTICLE 12: COMPENSATION TO CONTRACTOR..................................................................116
12.01 General......................................................................................................................116
12.02 Initial Costs................................................................................................................116
12.03 Annual Adjustments to City Payments to Contractor and to Prices Contractor May
Charge Via Direct Bill to Customers.....................................................................................119
12.04 Disposal Charge (Tip Fee) Adjustments......................................................................119
12.05 Adjustments to Costs Based on City -Directed Changes In Scope of Work...................120
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12.06 Contractor Invoicing and Payment.............................................................................121
12.07 Additional Residences Added During the Term ..........................................................122
12.07.A Neighborhoods Served by Third Party.............................................................................................................122
12.07.B Residences Constructed on Vacant Land or Lots During the Term...................................................123
ARTICLE 13: DEFAULT AND REMEDIES....................................................................................126
13.01 Events of Default.......................................................................................................126
13.02 Right to Suspend or Terminate Upon Default.............................................................130
13.03 Specific Performance.................................................................................................131
13.04 Use of Contractor Property Upon Default..................................................................131
13.05 Right to Perform........................................................................................................132
13.06 Payment for Use of Contractor's Property..................................................................132
13.07 Damages....................................................................................................................133
13.08 City's Remedies Cumulative.......................................................................................133
13.09 Liquidated Damages..................................................................................................133
13.10 City Default................................................................................................................142
13.11 Notice to City of Any Potential Labor Strike or Stoppage............................................143
ARTICLE 14: OTHER AGREEMENTS OF THE PARTIES ..........................................................144
14.01 Permits, Licenses, Compliance with Law; Non-Discrimination....................................144
14.02 Assignment................................................................................................................144
14.02.A City Consent Required.................................................................................................................................................145
14.02.B Assignment Defined......................................................................................................................................................145
14.02.0 Consent Requirements................................................................................................................................................146
14.03 Subcontracting...........................................................................................................147
14.04 No Affiliated Entity....................................................................................................147
14.05 Contractor's Investigation..........................................................................................147
14.06 Notice........................................................................................................................148
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14.07 Representatives of the Parties...................................................................................148
14.07.A Representatives of City...............................................................................................................................................148
14.07.13 Representatives of Contractor................................................................................................................................149
14.08 Right to Inspect Contractor Operations......................................................................149
14.09 Maintenance and Review of Records, Submission of Reports.....................................149
14.10 Right to Demand Assurances of Performance.............................................................150
14.11 Designation as City's Recycling Agent.........................................................................150
14.12 Force Majeure...........................................................................................................150
14.12.A Force Majeure...................................................................................................................................................................151
14.12.13 Obligation to Restore Ability to Perform and Notifications..................................................................151
14.12.0 Notice.....................................................................................................................................................................................152
14.12.1) City's Rights in the Event of Force Majeure.....................................................................................................152
14.13 Cooperation During Transition...................................................................................153
14.14 No Damages for Invalidation of Agreement...............................................................154
14.15 Diversion Programs Not Restricted............................................................................155
14.16 Reports as Public Records..........................................................................................155
14.17 Cooperation...............................................................................................................155
14.18 City Policy..................................................................................................................155
14.19 City's Transfer Station................................................................................................155
14.20 Compliance With Immigration Laws..........................................................................156
14.21 Time of Performance.................................................................................................156
14.22 Conflicts of Interest...................................................................................................157
14.23 Final Resolution of Customer Complaints Concerning Contractor..............................157
ARTICLE 15: MISCELLANEOUS PROVISIONS...........................................................................159
15.01 Governing Law...........................................................................................................159
15.02 Jurisdiction................................................................................................................159
15.03 Binding on Successors................................................................................................159
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15.04 Parties in Interest......................................................................................................159
15.05 Waiver.......................................................................................................................159
15.06 Attachments..............................................................................................................160
15.07 Entire Agreement.......................................................................................................160
15.08 Section Headings.......................................................................................................160
15.09 Interpretation............................................................................................................160
15.10 Amendment...............................................................................................................160
15.11 Severability................................................................................................................160
15.12 No Attorney's Fees or Costs.......................................................................................161
15.13 References to Laws....................................................................................................161
15.14 City's Municipal Code.................................................................................................161
15.15 Agreement to Provide Services..................................................................................161
15.16 Non-Discrimination....................................................................................................165
15.17 Guaranty....................................................................................................................165
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AGREEMENT FOR THE COLLECTION, TRANSPORTATION, PROCESSING AND
DIVERSION OF RESIDENTIAL RECYCLABLE MATERIALS, FOOD SCRAPS,
GREEN WASTE AND OTHER MATERIALS AND FOR THE COLLECTION,
TRANSPORTATION AND DISPOSAL OF RESIDENTIAL MUNICIPAL SOLID WASTE
THIS AGREEMENT is entered into as of the day of 2022, by and
between the CITY OF NEWPORT BEACH, a California municipal corporation and charter
city organized and existing under the laws of the State of California (hereinafter referred
to as "City") and CR&R, Incorporated, a California corporation (hereinafter referred to as
"Contractor")
NOW, THEREFORE, in consideration of the mutual promises contained in this
Agreement, and for other good and valuable consideration, the parties agree as follows:
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AGREEMENT
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ARTICLE 1: DEFINITIONS
1.01 Definitions. Unless otherwise defined in this Agreement, capitalized terms used in
this Agreement shall have the meanings set forth in the definitions contained in
Attachment A.
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ARTICLE 2: REPRESENTATIONS AND WARRANTIES OF
CONTRACTOR
2.01 Legal Status. Contractor is a corporation duly organized, validly existing and in
good standing under the laws of the State of California, and is qualified to do business in
the State of California.
2.02 Authority. Contractor has the authority to enter into and perform its obligations
under this Agreement. Contractor has taken all actions required by law, or otherwise to
authorize the execution of this Agreement.
2.03 Agreement Duly Executed. The Persons signing this Agreement on behalf of
Contractor have been authorized to do so, and this Agreement constitutes a legal, valid
and binding obligation of Contractor.
2.04 No Conflict with Applicable Law or Other Documents. Neither the execution and
delivery by Contractor of this Agreement, nor the performance by Contractor of its
obligations hereunder: (i) conflicts with, violates, or will result in a violation of any existing
applicable law; or (ii) conflicts with, violates, or will result in a breach or default under any
term or condition of any existing judgment, order or decree of any court, administrative
agency or other governmental authority, or of any existing contract or instrument to which
Contractor is a party, or by which Contractor is bound.
2.05 No Litigation. There is no action, suit, proceeding, or investigation at law or in
equity, before or by any court or governmental entity, pending or threatened against
Contractor, or otherwise affecting Contractor, wherein an unfavorable decision, ruling, or
finding, in any single case or in the aggregate, would materially adversely affect
Contractor's performance hereunder, or which, in any way, would adversely affect the
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validity or enforceability of this Agreement, or which would have a material adverse effect
on the financial condition of Contractor.
2.06 Financial Condition. Contractor represents and warrants that it has the financial
resources and capability to perform all of the services and to meet all of the requirements
in this Agreement. City has relied on this information in entering into this Agreement. All
information provided to City by Contractor is complete and accurate, does not contain any
material misstatement of fact and does not omit any fact necessary to prevent the
information provided from being materially misleading.
2.07 Expertise. Contractor has the expertise and professional and technical capability
to perform all of its obligations under this Agreement.
2.08 Contractor's Investigation. Prior to entering into this Agreement, Contractor
provided many of the same services to City pursuant to a contract signed in 2013. In
addition, Contractor has made an independent investigation and analysis, the results of
which are satisfactory to Contractor, of the conditions and circumstances surrounding this
Agreement, its content and preparation, and the work to be performed by Contractor
under the Agreement. The Agreement accurately and fairly represents the intentions of
Contractor, and Contractor enters into this Agreement on the basis of Contractor's
previous work for City and Contractor's own independent investigation and analysis.
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ARTICLE 3: TERM OF AGREEMENT
3.01 Effective Date. The Effective Date of this Agreement shall be January 15, 2022.
3.02 Term. The Term of this Agreement shall commence on the Effective Date and shall
end at midnight on December 31, 2029, unless earlier terminated. Contractor's obligation
to collect Recyclable Materials, other materials, and Municipal Solid Waste shall begin on
January 15, 2022 at 12:01 a.m.
3.03 Opportunity for Contractor to Earn Extensions of Term. The Term of this
Agreement may be extended as described in Section 6.06. In no event shall this
Agreement be extended beyond December 31, 2031.
3.04 Conditions to Effectiveness of Agreement.
3.04.A Obligation of City to Perform. The obligation of the City to perform under
this Agreement is subject to satisfaction, on or before the Effective Date, of each of the
conditions set out below, each of which may be waived in whole or in part by City:
3.04.A.1 Accuracy of Representations. The representations and
warranties made by Contractor in Article 2 of this Agreement shall be
true and correct on and as of the Effective Date.
3.04.A.2 Absence of Litigation. There shall be no litigation pending
on the Effective Date in any court challenging the execution of this
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Agreement or seeking to restrain or enjoin Contractor's performance
or ability to perform under this Agreement.
3.04.A.3 Furnishing of Bond and Guaranty. Contractor shall
provide and maintain the performance bond required in Section
11.03 and the guaranty required in Section 15.16 of this Agreement.
3.04.A.4 Furnishing of Evidence of Insurance. Contractor has
furnished satisfactory evidence of insurance required by Section
11.02 of this Agreement.
City may waive the satisfaction of the conditions described in Section 3.04.A.3
and 4, allow this Agreement to become effective, and exercise its rights and remedies
under this Agreement for Contractor's failure to furnish the bond, the Guaranty, or the
evidence of insurance.
3.04.13 Obligation of Contractor to Perform. The obligation of Contractor
to perform under this Agreement is subject to the satisfaction on or before the Effective
Date of the condition set forth below, each of which may be waived in whole or in part by
Contractor.
3.04.13.1 Absence of Litigation. There shall be no litigation pending
on the Effective Date in any court challenging the execution of this
Agreement, or seeking to enjoin its performance.
3.04.0 Notice. If either party fails to satisfy a condition listed in this Article
3, it shall deliver written notice to the other party on or before the Effective Date. If
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either party wishes to assert that a condition for its benefit has not been satisfied
and has not been waived, it must deliver written notice to that effect to the other
party on the Effective Date. If no such notice is received, the Agreement will
become effective on the Effective Date. Each party is obligated to perform in good
faith the actions, if any, which this Agreement requires it to perform before the
Effective Date and to cooperate towards the satisfaction of the conditions set forth
above.
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ARTICLE 4: COLLECTION OF RESIDENTIAL RECYCLABLE
MATERIALS, FOOD SCRAPS/GREEN WASTE, MUNICIPAL SOLID
WASTE AND OTHER MATERIALS
4.01 Scope of Work — General. Except as otherwise provided herein, Contractor shall
(a) collect Municipal Solid Waste ("MSW') generated at individually serviced Residential
Premises including single-family homes and homes located within Gated Developments,
Homeowners Associations and Mobile Home Parks within the City and deliver it to the
Disposal Site approved by City, and (b) collect Recyclable Materials, Food Scraps/Green
Waste, and other materials specified in Attachment B placed for Collection by
participating individually serviced Residential Customers, including single-family homes
and homes located within Gated Developments, Homeowners Associations and Mobile
Home Parks within the City and deliver each type of material to the Processing Facility
designated by City for said material. Notwithstanding the foregoing, the City does not
guarantee that any particular type or quantity of MSW, Recyclable Materials, Food
Scraps, Green Waste or any other material will be available for Collection at any time
during the Term of this Agreement. Contractor acknowledges and agrees that the City
does not control the quantity, quality or composition of the waste stream generated in
City, and cannot compel generators of Divertible materials to place those materials for
Collection by Contractor (e.g. Customers may self -haul or arrange for collection of
Divertible Materials by third parties in compliance with City ordinances and state law).
Contractor further acknowledges and agrees that future changes in laws, regulations,
packaging, the economy, consumption of goods, and/or technology may affect the type
and quantity of material that will be available for Collection by Contractor, and agrees that
it will not be entitled to any cost increases, extensions of this Agreement (other than those
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extensions described in Article 3), or other compensation of any kind due to such changes
in the types and quantities of materials available for Collection.
The work to be done by Contractor includes the furnishing of all labor, supervision,
equipment, materials, supplies, vehicles and equipment, storage and maintenance
facilities, and all other items necessary to perform the services required under this
Agreement in a thorough, workmanlike and efficient matter, so that Residents, within the
City are provided reliable, courteous and high-quality services at all times. The
enumeration of, and specification of, requirements for particular items of labor or
equipment shall not relieve Contractor of the duty to furnish all others that may be
required, whether enumerated or not.
Contractor shall perform all work in accordance with Attachment B, whether or not
such provisions are specifically referred to in any other section of this Agreement.
4.02 Growth and Changes in City. In the event that any new residential dwellings are
constructed in City during the Term, Contractor agrees that it shall not be entitled to an
increase in compensation and shall provide all the services described in this Agreement
to such new residential dwellings. The only change in Contractor's compensation for the
addition of Residences to Contractor's service area shall be as provided in Section 12.07
of the Agreement.
4.03 Implementation Plan. The parties recognize that substantial planning and
preparation will be required to ensure a successful initiation of Collection operations by
Contractor on the Effective Date and to accomplish implementation of Recyclable
Materials Collection and Food Scrap/Green Waste Collection at all Residences in City on
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or before the Effective Date. To that end, Contractor has prepared a detailed
Implementation Plan addressing the steps Contractor will take, and the schedule on which
it will take them, to prepare for, and accomplish, implementation of said Diversion
programs. The Implementation Plan in Attachment C sets forth the obligations and
schedule for rollout of the required Diversion programs.
Contractor shall diligently adhere to the Implementation Plan and shall meet
periodically, whenever City requests, to review its progress. Failure to adhere to the
Implementation Plan, including its schedule, shall constitute a material breach of this
Agreement, which, if uncured, shall be subject to default as provided in Section 13.01.
The specific plans and other materials required to be submitted under the
Implementation Plan are subject to City's review and approval. City will endeavor to take
actions, make decisions, and provide directions to Contractor in accordance with the
schedule and time allowances set forth in Attachment C, so as not to delay Contractor's
adherence to the Implementation Plan schedule.
4.04 Residential MSW Collection.
Contractor shall collect all MSW generated at Residential Premises within the City that is
placed for Collection in Contractor -provided Carts at curbside or in alleys (and at
sideyard/backyard locations by Customers who request and pay the Extra Charges for
valet service) as described in Section 2 of Attachment B. MSW shall be collected from
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such Premises at the frequencies and in the manner described in Section 2 of Attachment
4.05 Residential Recyclable Materials and Food Scraps/Green Waste Diversion
Programs.
Contractor shall Collect all Recyclable Materials and co -collected Food Scraps/Green
Waste generated at Residential Premises placed for Collection in Contractor -provided
Carts at the curbside or in alleys. Contractor shall also collect Recyclable Materials and
co -collected Food Scraps/Green Waste generated at Residential Premises, placed for
Collection at backyard or side yard locations by Customers who request and pay the Extra
Charges for Valet Service or who are disabled, pursuant to Section 1.4.6 of Attachment
B. Recyclable Materials and co -collected Food Scraps/Green Waste shall be collected
from Residential Premises at the frequencies and in the manner described in Attachment
B, Sections 1 and 2.
4.06 Other Services and Special Services.
Contractor shall provide other services and special services as described in Section 3 of
Attachment B that include, but are not limited to, the following:
• Bulky Item Collections
• Special Events Collections
• Holiday Greenery Collection and Recycling
• Door -to -Door Household Hazardous Waste Collection
• Community Shredding Events
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• Sharps Collection
• Annual Mulch/Compost Giveaway
• Summer Saturday Collection Service
4.07 Hours of Collection. Collection of MSW, Recyclable Materials, Food Scraps/Green
Waste and all other Collection operations may occur only within the hours authorized by
the City. Contractor may not conduct Collection operations earlier than 7:00 a.m. local
time or later than 7:00 p.m. The City Manager or his/her designee, if requested by
Contractor, may grant temporary site and route -specific exceptions. At the sole discretion
of the City Manager, Contractor shall adjust the early morning start point of Collection
routes to address and minimize customer complaints when warranted.
4.07.A Holidays. No Collections shall occur on the following days: New Year's
Day, Memorial Day, Fourth of July, Labor Day, Thanksgiving Day, Christmas Day, and
Sundays. If the regularly scheduled Collection day falls on one of the listed holidays,
Collection days for the remainder of that week shall all be postponed one (1) Collection
day. No Collections shall occur on Saturdays for Residential Premises subject to the
following three (3) exceptions:
(1) Missed pick-up service;
(2) Changed Collection schedule due to a holiday; and
(3) for Summer Saturday service described in Attachment B, Section 3.7.
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4.07.8 Coordination With Street Sweeping. Contractor shall coordinate with the
City Manager or his or her designee to ensure that the Collection of MSW, Recyclable
Materials and Food Scraps/Green Waste is compatible with, and does not interfere with,
City's street sweeping operations. In order to comply with this requirement, Contractor
shall coordinate initial routing with the City to ensure Collection operations are compatible
with the City's street sweeping schedule and the City's "No Parking" signage for street
sweeping days. Any changes to Collection days for Residents after Contractor's initial
routing of City shall be accomplished as described in Section 1.3 of Attachment B.
4.07.0 Collection Near Schools. Contractor shall not Collect Residential MSW,
Recyclable Materials or Food Scraps/Green Waste from any Residential Premises
located within five hundred (500) feet of a school or other educational facility between the
hours of 7:30 a.m. and 9:00 a.m. or 1:00 p.m. and 3:00 p.m. Monday through Friday. The
limitations in this Section 4.07.0 shall not apply to Contractor's operation of Collection
vehicles on East and West Coast Highway, Jamboree Road, MacArthur Boulevard, San
Joaquin Hills Road, Irvine Avenue, Balboa Boulevard and Newport Coast Drive.
4.08 Collection Standards.
4.08.A Care of Property. Contractor shall use due care when handling MSW,
Recycling, and Food Scrap/Green Waste Carts. Carts shall not be thrown from trucks,
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roughly handled, damaged or broken. Carts shall be returned to the Collection point
upright, with lids properly closed.
Contractor shall ensure that its employees close all gates opened by him/her in
making Collections, unless otherwise directed by the Customer, and avoid crossing
landscaped areas and climbing or jumping over flower beds, hedges, fences, and other
building appurtenances.
City shall refer complaints about damage to private property, including
common areas in common -area subdivisions, to Contractor. Contractor shall promptly
and at its sole expense repair, or arrange for the repair of, all damage to private property
caused by its employees, including but not limited to vehicles, overhangs, carports,
streets, curbs, sidewalks, driveways and paved areas.
4.08.6 Noise. All Collection operations shall be conducted as quietly as possible
and shall conform to City noise level regulations. The noise level during the stationary
compaction process shall not exceed 75 decibels at a distance of 25 feet from the
Collection vehicle measured at an elevation of five (5) feet above ground level. Contractor
shall submit to City, upon City's request, a certificate of vehicle noise testing by an
independent testing facility of a representative sample of Collection vehicles. The City
may also conduct random checks of noise emission levels to ensure such compliance.
4.08.0 Private and Public Streets. Contractor shall use its best efforts to prevent
damage to all streets over which its Collection equipment operates, and Contractor shall
obtain all required approvals for operation of its Collection vehicles on private streets. In
the event Contractor damages public streets to an extent that exceeds normal wear and
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tear (e.g. hits and damages a public curb, sidewalk, or driveway or creates a hole in the
pavement that must be repaired) City will notify Contractor and Contractor shall be
responsible for the City's cost of repairing the damage, which will be performed by City.
Contractor shall use all available industry best practices to prevent spills of fuel and fluids
(such as oil, hydraulic fluid, brake fluid, etc.) on streets. A liquid spill kit shall be carried
at all times on each Collection vehicle for this purpose. If such a spill occurs, Contractor
shall immediately notify the City (including the Director of Public works or his/her designee
and the City's NPDES Coordinator) and all proper regulatory authorities of said spill and
release of fluids. City shall be notified no later than one (1) hour after the spill. Contractor
shall clean, at Contractor's expense, the spilled fluids in coordination with, and to the
satisfaction of, City and applicable regulatory agencies. Upon a release of such fluids,
the driver shall immediately park the vehicle and it shall remain parked until the leak is
repaired. In the event of a spill of fuel and/or fluid, Contractor shall not park the leaking
vehicle within two hundred (200) feet of a storm drain and shall utilize absorbent material,
sand bags or other appropriate means to prevent leaking fluids from entering storm
drains. In the event of any type of spill or other emergency, Contractor shall be
responsible for securing the immediate safety of the vehicle driver, all other employees
of Contractor and all persons and property in the surrounding vicinity. As of the Effective
Date, Contractor shall initiate and provide no less than monthly training of all Collection
employees, route supervisors, dispatch personnel and all management employees in the
proper handling of any spills to prevent such spills from entering storm drains or otherwise
creating environmental damage or damage to persons, property, wildlife, animals,
vegetation, the ocean, waterways, or releases to the atmosphere. Such trainings shall
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include a simulation of a spill with employees physically performing the appropriate
actions and activities to contain spilled fluid(s), at least one (1) time each year. Contractor
shall provide a quarterly report to City on the trainings held with each employee group
including the topics covered, and the employees or third parties that provided each
training, as further described in Section 9.03.
4.08.11) Customer Privacy. Contractor shall strictly observe and protect
the rights of privacy of Customers. Information identifying the contents and composition
of a Customer's MSW, Recyclable Materials or Food Scraps/Green Waste shall not be
revealed to any Person, governmental unit, private agency or company, unless authorized
by the Customer or by order of a court of law, or by statute. This provision shall not be
construed to prohibit Contractor from:
(1) conducting and reporting to City the results of the Divertible Materials
characterizations and on-site field container Contamination audits described in
Attachment N;
(2) conducting, assisting with, or otherwise carrying out other MSW or
Divertible Materials characterizations or audits that may be required by the Act or
requested by City,
Article 9; or
(3) performing all of the characterizations and audits required pursuant to
(4) providing information necessary for City to comply with the Act and to
obtain information required for City to exercise its police powers.
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Contractor shall not market or distribute customer mailing lists to any party,
with the sole exception that Contractor shall make available customer mailing lists to the
City upon request.
Contractor shall dismiss or discipline employees who remove documents or
any other material from Carts, other than specifically for the purposes of Collecting,
Disposing of, and Diverting the materials as described in this Agreement.
4.09 Litter Abatement.
4.09.A Minimization of Spills. Contractor shall use due care to prevent MSW,
Food Scraps/Green Waste and Recyclable Materials from being spilled or scattered
during the Collection or transportation process. If any MSW, Food Scraps/Green Waste
or Recyclable Material is spilled, Contractor shall promptly clean up all spilled materials
whether on private or public property. Each Collection vehicle shall carry all industry -
standard equipment for this purpose. Failure to clean up all spilled materials within two
(2) hours of notification of the spill by a Customer or the City or any other Person shall
result in the assessment of liquidated damages as described in Section 13.09.
Contractor shall not transfer loads from one vehicle to another on any public street
or private roadway, unless it is necessary to do so because of mechanical failure or
damage to a Collection vehicle that renders it inoperable and the vehicle cannot be towed.
4.09.13 Clean Up of Existing Litter. The Contractor shall clean up existing litter
in the immediate vicinity of any MSW, Recyclable Materials, or Food Scraps Green Waste
Collection area (including the areas on private and public property where Carts are placed
for Collection) whether or not Contractor has caused the litter. Contractor shall notify the
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Customer and the City after the second occurrence of existing litter and shall send City a
photograph of the littered area. City's Code Enforcement Officer and the Contractor's
Recycling Coordinator will make an on-site inspection to discuss the situation with the
Customer responsible for the property. If the litter and debris is being caused by illegal
dumping, the City and Contractor's Recycling Coordinator will work with the Customer to
prevent the illegal dumping or unauthorized use of Customer's Carts. If the cause of the
litter is under -subscription to the Collection service, the City and Contractor's Recycling
Coordinator and/or Route Supervisor will work with the Customer to determine the
appropriate size Cart(s) required to alleviate the problem.
4.09.0 Report of Accumulation of MSW, Other Materials and Unauthorized
Dumping. Contractor shall direct its drivers to note: (a) the addresses of any Premises
at which they observe that MSW or other materials are accumulating and not being placed
for Collection; and (b) the address, or other location description, at which MSW and/or
other materials have been ostensibly dumped in an unauthorized manner. Contractor
shall provide the address or description to City within one (1) working day of observing
the violation.
4.09.D Covering of Loads. Contractor shall take steps to prevent blowing of
MSW, Recyclable Materials, Food Scraps/Green Waste and/or other materials from
Collection vehicles that are in route to the transfer station or to any Processing Facility.
Contractor shall place covers on all open Roll Off Box Containers and transfer trucks
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during transport to the Disposal facility, Materials Recovery Facility, Food Scrap/Green
Waste Yard Processing Facility, and all other Processing Facilities.
4.10 Hazardous Waste
4.10.A General. Contractor shall be aware of, and comply with, all laws, rules,
and regulations relating to the handling and transportation of Hazardous Waste, including
those requiring training and documentation. Contractor shall implement a Hazardous
Waste exclusion program that includes, at a minimum, a visual check of all Carts
Collected to protect against Collection of Hazardous Waste. If Contractor observes any
substances that may contain Hazardous Waste within the City, including but not limited
to, in Carts designated for MSW, Food Scraps/Green Waste or Recyclable Materials
Contractor shall not collect such Hazardous Waste but shall immediately notify the
appropriate regulatory agencies and the City. The preceding sentence does not apply to
the Collection of Sharps, Bulky Items containing Freon, or provision of the Door -to -Door
Household Hazardous Waste service pursuant to this Agreement. Contractor shall, prior
to leaving the location where such Hazardous Waste has been observed, leave a tag at
least 2" x 6" that informs the Customer why the Collection was not made and lists the
telephone number for the appropriate local agencies to contact for proper disposal of the
Hazardous Waste.
In addition to other required notifications, if Contractor observes any substances
which it or its employees reasonably believe or suspect to contain Hazardous Waste
unlawfully disposed of or released on private property or on public property, including
storm drains, streets, or other public rights of way, Contractor shall notify City Manager,
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or the City Manager's designee immediately. Contractor shall prepare a written record of
all Hazardous Waste discovered through the Hazardous Waste exclusion program
including all information required to comply with all State and Federal Hazardous Waste
Regulations. Said records shall be provided to the City with each Monthly Report
submitted by Contractor and shall be maintained by Contractor in written or electronic
format for the duration of the Term of this Agreement. (Monthly reports and due dates are
described in Section 9.03A and Attachment K.)
4.10.6 Notice to Customers. Contractor shall notify all Customers at least once
a year with a mailing separate from other notices and brochures, of: (i) the prohibition
against the Disposal of Hazardous Waste in Residential Carts or in public litter or
Recyclable Materials containers; and (ii) the obligation of each Customer to provide for
the proper handling and disposition of Hazardous Waste.
4.10.0 Contractor to Segregate and Dispose. In the event Contractor
inadvertently collects any Hazardous Waste, and during the course of transportation and
disposition at a Disposal Facility, Materials Recovery Facility, Food Scrap/Green Waste
Processing Facility or other Processing Facility, becomes aware that it has Collected such
Hazardous Waste, Contractor shall segregate the Hazardous Waste, and shall arrange
for its transport and Disposal to a properly permitted Recycling, treatment or disposal
facility of Contractor's choosing at Contractor's sole expense. Contractor shall be solely
responsible for the transport and disposition of all Hazardous Waste that is Collected by
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Contractor. City will cooperate with Contractor's attempts to locate and collect the costs
of such transport and disposition from the responsible Customer.
4.10.D Operating Procedures and Employee Training. Contractor shall
establish, implement and maintain written operating procedures designed to ensure
Contractor's utilization of techniques generally accepted in the recycling and waste
hauling industry for cities of the size and nature of the City of Newport Beach, to handle
and dispose of Hazardous Waste and its compliance with the provisions of this Section
4.10 and all applicable laws, rules, and regulations. Contractor shall establish, implement
and maintain an employee training program and shall ensure that employees responsible
for the identification of Hazardous Waste are fully trained to properly handle and dispose
of Hazardous Waste. Contractor shall maintain documentation that describes the training
received by its employees.
4.10.E Hazardous Waste Diversion Records. Contractor shall maintain
records showing the types and quantities, if any, of Hazardous Waste found in MSW,
Recyclable Materials, and/or Food Scraps/Green Waste at Residential Premises which
was inadvertently Collected from service recipients within the City, but Diverted from the
landfill.
4.11 City's Right to Change Scope of Work. City may, without amending this
Agreement, direct Contractor to cease performing one (1) or more of the services
described in this Agreement and may direct Contractor to modify the scope of one (1) or
more of such services, may direct Contractor to perform additional Collection services
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and/or processing services, and may similarly modify Contractor's obligations under any
provisions of this Agreement.
The scope of services subject to change at the City's sole discretion includes, but
is not limited to, program expansions, new Diversion Programs to comply with the Act,
modifying or stopping certain Diversion programs and/or other programs, and/or specified
portions of programs, change of Processing Facility, providing pilot programs and
innovative services which may entail new Collection methods, different types of services,
equipment and/or new requirements for Customers, new technology, and compliance with
new laws, rules, and regulations.
If such changes cause an increase or decrease in the cost of performing the
services, an appropriate adjustment in the Contractor's costs will be made as provided in
Section 12.05. Contractor will continue to perform the new or changed service while the
appropriate adjustment in costs, if any, is being evaluated by City and Contractor.
In the event City and Contractor cannot agree upon the appropriate adjustment in
Contractor's costs within ninety (90) calendar days from the date when City first requests
a proposal from Contractor to perform new, expanded or modified services, Contractor
acknowledges and agrees that the City may permit Persons other than Contractor to
provide such services.
4.12 Attendance At Meetings With City. Contractor shall attend monthly status
meetings with City representatives and agents beginning within one (1) calendar week of
the Effective Date of this Agreement. The date, time and location for meetings will be
established by the City, in consultation with the Contractor. Contractor shall provide all
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necessary and appropriate personnel to attend each meeting such that the topics on the
agenda can be addressed fully and completely. At the sole discretion of the City,
additional, more frequent meetings may be convened during the months leading up to
and after the start date for operations of January 15, 2022, in order to make sure the
Implementation Plan is on schedule and that the Contractor is fully ready and prepared
to commence Collection and all other operations pursuant to this Agreement. At the sole
discretion of the City, additional meetings may be convened during the Term to continue
to address issues not resolved at the monthly meetings and to address specific events,
issues or concerns as needed by the City. Topics to be covered at the monthly meetings
include progress on the Implementation Plan, progress toward the achievement of
program implementation as described in Attachment B, Contamination levels in Customer
Containers, results of the characterization audits described in Attachment N, review of
implementation of all items in the Scope of Work, review of monthly reporting documents,
planning for upcoming Special Events, and any other items relevant to the
accomplishment of all tasks and attainment of all performance standards contained in the
Agreement.
4.13 Ownership of Municipal Solid Waste and Recyclable Materials. Ownership and
the right to possession of all MSW, Green Waste, Food Scraps, and Recyclable Materials
shall be transferred to Contractor from the Customer once such materials are placed in
Carts and properly placed at the designated Collection location, by operation of this
Agreement. At no time shall the City obtain any right of ownership or possession of MSW,
Green Waste, Food Scraps, Recyclable Materials, or Hazardous Waste placed for
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collection and nothing in this Agreement shall be construed as giving rise to any inference
that City has such rights.
4.14 Roll Off Boxes at City Yard and Transfer Station. Contractor shall, at no additional
charge, provide appropriately sized containers (i.e. Roll -Off Box(s)) at the City yard and
at the transfer station for disposal of abandoned items and litter from City litter containers
collected by City crews and/or City contractors as further described in Section 3 of
Attachment B. Contractor shall empty the Roll Off Boxes in a timely manner, and at a
minimum, within two (2) business days of notification from City.
4.15 Contamination Warning Notice. Contractor shall follow the procedures described
in Attachment B, Section 5 "Procedure for Observation and Issuance of Contamination
Notices to Customers" at any time a driver observes Contamination in a Container placed
for Collection.
4.16 Proposals For New, Enhanced or Expanded Diversion Programs.
Contractor shall, at no additional cost, within forty-five (45) days of each request by City,
submit a written proposal on providing additional or expanded Diversion services. The
proposal shall contain a complete description of the following: (A) Collection methodology
to be employed; (B) equipment to be used and staffing requirements by number and
classification; (C) type(s) of Container(s) to be used; (D) informational/promotional
materials proposed; (E) projection of annual operating costs and revenues (if applicable)
for three (3) operating years, including documentation of, and support for, key
assumptions underlying projections. In the event City decides to proceed with
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implementation of such additional and/or expanded Diversion service(s), the provisions
of Section 4.11 of the Agreement shall apply.
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ARTICLE 5: TRANSPORTATION AND DISPOSAL OF MSW OR
PROCESSING OF RECYCLABLE MATERIALS
5.01 Transportation and Disposal of MSW. City entered into an agreement with the
County of Orange (authorization date of March 24, 2009 for the County of Orange and
April 28, 2009 for the City of Newport Beach) for utilization of the Orange County Landfill
System for disposal of MSW ("OCLS Agreement"). An amendment to the OCLS
Agreement dated April 28, 2016 was approved by the City and the County and became
effective on June 30, 2016. Both the OCLS Agreement and the amendment are included
as Attachment I. The parties acknowledge that the City's existing arrangements pursuant
to the OCLS Agreement will expire as of June 30, 2025. City will be responsible for
renewing this agreement and shall notify Contractor when such renewal has taken place.
In the event the Orange County Landfill System becomes unavailable to City for Disposal
of MSW from City, Contractor shall assist City in identifying and researching possible
alternate Disposal Sites and shall cooperate with City in switching to the alternate
Disposal Site(s) identified by City. In such event, the provisions of Section 4.11 and
Section 12.05 shall apply if the change in Disposal Site creates a change (either an
increase or decrease) in the cost of transport or Disposal of MSW. Contractor shall
transport and deliver all MSW Collected pursuant to this Agreement to the Orange County
Landfill System, and to the specific landfill designated by City, for the term of the OCLS
Agreement as amended, including any extensions. The City -designated Disposal Sites
as of the Effective Date are: the Prima Deschesa Landfill, the Frank Bowerman Landfill
and the Olinda Alpha Landfill in the Orange County Landfill System. If the City -designated
landfill(s) becomes unavailable, Contractor shall transport and deliver all MSW collected
pursuant to the Agreement to another landfill within the Orange County Landfill system
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as directed by City. If there is no other landfill available within that system, or in the event
the City's landfill agreement with the County of Orange terminates during the Term,
Contractor shall transport and deliver all MSW collected pursuant to the Agreement to
such other Disposal site designated by the City Manager or his/her designee.
During the term of the City's contract with the County of Orange, Contractor shall
comply with all provisions of such contract, including, but not limited to, Section 3.1(C)
requiring transport and delivery of residue (as defined in Attachment I: "'Residue' means
any material remaining from the processing, by any means and to any extent, of City
Acceptable Waste or Recycled City Acceptable Waste; provided, however, that Residue
shall not include minimal amounts of material remaining after such processing [which
minimal amounts shall in no event exceed ten percent (10%) of the amount of such City
Acceptable Waste or Recycled City Acceptable Waste prior to processing.]") from all
Materials Recovery Facilities, Compost Facilities and all other Processing Facilities
utilized in the performance of this Agreement, to the Orange County Landfill System; and
with Section 3.1 (H) requiring provision of tonnage data by type of load (for purposes of
this Agreement: "Residential"), and the origin of MSW delivered to the County Landfill
System directly from City routes and from all transfer stations and Processing Facilities
used in the performance of this Agreement.
Delivery of any material to a landfill for use as Alternative Daily Cover ("ADC") is
prohibited as described in Section 6.08.
Contractor shall cooperate with the operator(s) of the City -approved Disposal
Site(s) with regard to operations therein, including by way of example, complying with
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directions from the operator to unload Collection vehicles in designated areas,
accommodating to maintenance operations and construction of new facilities, complying
with the operator's Hazardous Waste exclusion program, and fully and transparently
cooperating with the operator's tonnage tracking system including reporting of allocation
methods.
With regard to Contractor's use of the City -owned transfer station for consolidation and
transport of MSW or other materials collected in City during the Term, Contractor shall
execute an agreement with the County of Orange as described in Section 3.1 (C) in a
form similar that in Appendix 4 of the City -County Landfill Contract in Attachment I,
entitling Contractor to be charged the Contract Rate (as defined in Attachment 1) for
Disposal of MSW from City in the Orange County Landfill System.
5.02 Transportation of Single Stream Recyclable Materials and Single Material
Recyclable Materials. Contractor shall transport and deliver for processing Single
Stream Recyclable Materials and Single -Material Recyclables, and any appropriate
Recyclable Bulky Goods to the CR&R Intermediate Processing Center (Western Ave
Clean MRF) located at 11292 Western Avenue, Stanton, CA which is the City -approved
Clean MRF identified in Attachment O.
5.03 Transportation of Co -Collected Food Scraps/Green Waste. Contractor shall
transport and deliver all co -collected Food Scraps/Green Waste to the CR&R-owned and
operated South Yuma County Landfill Composting Facility located at 19536 South
Avenue 1 E, Yuma, AZ which are identified in Attachments Q (Yuma Composting Facility)
which is the City -approved Food Scrap/Green Waste Processing Facility identified in
Attachment P.
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5.04 City Right to Unilaterally Direct Change in Processing Facility. City reserves the
right to unilaterally direct a change in any of the Processing Facilities described in this
Article 5 for any reason, during the Term. In such event, City shall provide a minimum of
six (6) months prior written notice to Contractor of the change and the provisions of
Section 4.11 shall apply. If the City directs use of a different Processing Facility, all of the
requirements for use and operation of the new facility in Article 6, including but not limited
to, Sections 6.04 and 6.05, shall apply. Upon City approval of use of a new Processing
Facility that is not owned by Contractor, Contractor shall submit to City within seven (7)
days, a copy of the fully executed contract with the facility owner evidencing the terms
and conditions under which Contractor is entitled to utilize the facility for processing of
City's materials and showing that the contract includes the Processing Facility meeting
all the requirements included in this Article 6.
5.05 Designated Processing Facilities Unavailable. If any of the Processing Facilities
described in Sections 5.02, 5.03 or 5.04, become unavailable for use by the City during
the Term, City may designate a new Processing Facility pursuant to Section 4.11. The
parties agree that a Processing Facility shall only be deemed to be "unavailable" if one or
more of the following has occurred: (i) a Force Majeure event as described in Section
14.12 has occurred; or (ii) a Processing Facility has lost one (1) or more permits to
operate; or (iii) a Processing Facility has exhibited a pattern of violation through the receipt
of repeated notices of violation from one (1) or more regulatory agencies. Further, the
'City and Contractor agree that a Processing Facility shall only be deemed to be
"unavailable" if the lack of availability of the Processing Facility is not due to Contractor's
negligence, illegal activity, neglect or willful misconduct. At City's request, Contractor shall
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research, identify and propose one or more alternate Processing Facility(ies) for the
materials requiring Processing, within five (5) working days. Contractor shall submit a
written analysis and recommendation to the City within thirty (30) working days
concerning the cost for use of such alternate facility(ies) and any logistical changes that
would be required to utilize such alternate facilities. City and Contractor will discuss the
advantages and disadvantages of use of the potential alternate Processing Facilities and
City will designate a selected facility. The decision of the City shall be final. In the event
a Processing Facility becomes unavailable due to the negligence, illegal activity, neglect
or willful misconduct of Contractor, Contractor shall bear all additional costs for use of an
alternate Processing Facility including increased processing costs, transportation costs,
transfer costs and all other costs. In the event the City designates use of a different
Processing Facility and/or type of Processing Facility(ies) all of the requirements for use
and operation of the new facility(ies) in Article 6, including but not limited to Sections 6.04
and 6.05, shall apply. Upon City approval of use of a new Processing Facility that is not
owned by Contractor, Contractor shall submit to City within seven (7) days, a copy of the
fully executed contract with the facility owner evidencing the terms and conditions under
which Contractor is entitled to utilize the facility for processing of City's materials and
showing that the contract includes the Processing Facility meeting all the requirements
included in this Article 6.
5.06 Contractor Request for Change of Processing Facility. In the event Contractor
proposes the use of a new or different Processing Facility other than those currently in
use, Contractor shall provide the City with a detailed description of the proposed facility
including but not limited to, the location, owner and operator, current facility users,
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technical capacity, processing methodology, Diversion capabilities, potential advantages
to the City, cost of use of the facility including impacts of transportation costs and tipping
fees, and shall provide copies of all permits for the facility. In presenting the costs for use
of the proposed facility, Contractor shall provide the City with both basic cost information
and with proposed revisions to Attachment D-1 showing the breakdown of costs for
Collection, processing, transportation and Disposal for each cost category ("Customer
Collection in `2013 Contract Area' in Attachment Q"; "Customer Collection in `Newport
Coast' Area in Attachment Q"; and "Enhanced SB 1383 -mandated programs [for entire
City]") incorporating use of the proposed facility, as well as the total proposed change in
Contractor compensation for each cost category incorporating use of the proposed
facility. The City will evaluate the proposal and may, at its sole discretion, choose not to
use the proposed facility if any one of the following issues is not addressed to the
satisfaction of the City:
(a) Costs are not acceptable.
(b) The facility does not have all required state, federal and local permits, and
land use approvals and/or the facility is not operating in compliance with all
state, federal and local permits, regulations and land use approvals.
(c) Performance of the facility is not acceptable (e.g. the Diversion achieved or
proposed is not adequate, the quality of the materials created at the facility
is substandard, etc.)
(d) The actual or proposed end use for the processed materials created by the
facility is not the highest and best use as dictated by regulatory conditions.
(e) The City does not need such a facility.
(f) Use of the proposed facility is not in the best interest(s) of the City and its
Residents/Customers.
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The parties will meet and discuss use of the proposed facility and the Contractor
will provide prompt responses to City questions, concerns and requests for any additional
information. City will inform Contractor in writing of its decision concerning use of the
proposed facility within sixty (60) days of receipt of all of the information requested by the
City. The decision of the City shall be final.
In the event City chooses to utilize a new or different Processing Facility,
Attachment D-1 shall, for the remainder of the Term, be revised to include the additional
compensation to Contractor agreed upon by the parties. If the City approves use of a
different type of Processing Facility(ies) and/or processing method, all of the requirements
for use and operation of the new facility(ies) in Article 6, including but not limited to
Sections 6.04 and 6.05, shall apply. Upon City approval of use of a new Processing
Facility that is not owned by Contractor, Contractor shall submit to City within seven (7)
days, a copy of the fully executed contract with the facility owner evidencing the terms
and conditions under which Contractor is entitled to utilize the facility for processing of
City's materials and showing that the contract includes the Processing Facility meeting
all the requirements included in Article 6.
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ARTICLE 6: PROCESSING AND MARKETING OF RECYCLABLE
MATERIALS
6.01 General. The Contractor compensation in Attachment D-1 includes the costs of
furnishing of all labor, supervision, equipment, materials, supplies and all other items
necessary to perform the processing and materials marketing services required in a
thorough, workmanlike and efficient matter.
6.02 Permits. Contractor shall utilize only Processing Facilities that are fully licensed
and permitted under all applicable federal, state, regional and local laws, rules, and
regulations. Within fifteen (15) calendar days after the Effective Date of the Agreement,
Contractor shall deliver to City a package containing current copies of all of the permits
for the Clean MRF, the Compost Facility and for any other Processing Facility approved
by City that Contractor will use to process materials collected within City.
6.03 Delivery of Residue to Landfill. Contractor shall deliver, or arrange to be delivered,
all non -recyclable Residue from the operations at all Processing Facilities including but
not limited to the Clean Materials Recovery Facility and the Compost Facility, to the City
designated landfill. Delivery of any material to a landfill for use as ADC is prohibited as
described in Section 6.08.
6.04 Clean MRF and Compost Facility Operating Requirements. Contractor shall
operate all Processing Facilities it owns, including but not limited to, the Clean Materials
Recovery Facility, and the Compost Facility, in compliance with all applicable federal,
state, regional and local laws and regulations and shall adhere to the requirements of all
permits for each facility. In the event the City approves or directs Contractor to utilize a
Processing Facility it does not own (pursuant to Section 5.04, Section 5.05 or Section
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5.06) it shall be Contractor's responsibility to investigate and determine that said facilities
are operating in compliance with all applicable laws, rules, and regulations and permit
requirements. If, at any time during the Term, said facilities are not operating in
compliance with all legal requirements, it shall be the duty of Contractor to immediately
report the situation to the City. Upon receipt of such information, City may conduct an
independent investigation of the situation, may require Contractor to utilize a different
Processing Facility while City is conducting its investigation, or may take other actions
City deems reasonable and necessary to protect the interest of the City, its customers,
public health and safety and the environment.
The Clean MRF described in Attachment O must include processing lines for
cleanup of Single -Material Recyclables and sorting of Single Stream Recyclable Materials
and must be capable of processing all the Single -Material Recyclables and Single Stream
Recyclable Materials collected by Contractor in the City.
The Compost Facility described in Attachment P, must be capable of processing
all the co -collected Residential Food Scraps and Green Waste Collected by Contractor in
the City. The end product(s) produced at the facility must be capable of being used for
agricultural and landscaping applications and shall meet all federal, state, regional and
local laws and regulations for such uses. Compost produced must be certified by the U.
S. Composting Council Seal of Testing Assurance Program ("STA"). Contractor shall
provide City with documentation evidencing such certification annually on or before
August 1 of each year beginning August 1, 2022. The Compost Facility Contactor shall
have the capability to provide "custom blends" of Compost to address end users' needs
for specific crops, soils and/or other parameters. In the event Contractor has, and utilizes
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an in-house laboratory for such testing, City shall have the right to request the use of an
outside independent laboratory for testing of Compost and Anaerobic Digestate at any
time at Contractor's sole expense.
6.05 Use of Biomass or Transformation Facilities Prohibited. Contractor shall not
deliver MSW or any other materials Collected in City to a Biomass Facility or to a
Transformation Facility for processing.
6.06 Contractor Incentive/Possible Extension(s) of Agreement. Contractor may earn
up to two (2) one-year extensions of the Term, as described herein. Attachment N,
Section 3 provides the detailed methodology for evaluation of achievement of the
requirements described herein.
6.06.A Phase 1 Extension Incentive. If Contractor meets the requirements listed
below and Contractor is in full compliance with all requirements of this Agreement, City
will extend the Term of the Agreement by one (1) year. In order to qualify for the Phase 1
extension incentive, Contractor must have achieved all of the following for calendar year
2024: Contractor has not exceeded the Contamination caps for Residential materials as
follows: twenty-five percent (25%) by weight for Single Stream Recyclable Materials,
twenty-five percent (25%) by weight for co -collected Food Scraps/Green Waste and
twenty-five percent (25%) by weight for MSW, as described in Attachment N, Section 3.
If Contractor meets the requirements for Phase 1, the City will extend the Agreement for
one (1) year from January 1, 2030 to December 31, 2030. During the period December
1, 2024 through April 30, 2025, City will evaluate the data from the characterization audits
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for calendar year 2024 using the criteria and methodology in Attachment N, Section 3.
City shall notify Contractor of its determination as described in Section 6.06.D.
6.06.6 Phase 2 Extension Incentive. If Contractor meets the implementation
requirements listed below and Contractor is in full compliance with all requirements of this
Agreement, City will extend the Term of the Agreement by one (1) year. In order to qualify
for the Phase 2 incentive, Contractor must have achieved all of the following for calendar
year 2026: Contractor has not exceeded the following Contamination caps for Residential
materials: fifteen percent (15%) by weight for Single Stream Recyclable Materials, fifteen
percent (15%) by weight for co -collected Food Scraps/Green Waste and fifteen percent
(15%) by weight for MSW, as described in Attachment N, Section 3. If Contractor meets
the requirements for Phase 2, the City will extend the Agreement for one (1) year. If
Contractor earned the Phase 1 extension, then the City will extend the Term for one (1)
additional year, from January 1, 2031 through December 31, 2031. If Contractor did not
earn the Phase 1 extension but earns the Phase 2 extension, the City will extend the
Term for one (1) year for the period January 1, 2030 through December 31, 2030. During
the period December 1, 2026 through April 30, 2027, City will evaluate the data from the
characterization audits for calendar year 2026 using the criteria and methodology in
Attachment N, Section 3.
6.06.0 Failure to Meet Phase 1 or Phase 2 Extension Requirements. If
Contractor fails to meet the extension requirements of Phase 1, such failure will not
preclude Contractor from earning a one-year extension of the Agreement in Phase 2. If
Contractor fails to meet the extension requirements of Phase 1 by the Phase 1 deadline,
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but meets the extension requirements for both Phase 1 and of Phase 2 by the Phase 2
deadline, City will extend the Term by one (1) year, to December 31, 2030.
6.06.D Notice of Extension or Failure to Earn Extension. The City will evaluate
Contractor's performance in Phase 1 during the period December 1, 2024 through April
30, 2025. City will notify Contractor in writing on or before May 1, 2025 as to whether or
not the Term is extended by one (1) year for Phase 1. The City will evaluate Contractor's
performance in Phase 2 during the period December 1, 2026 through April 30, 2027. City
will notify Contractor in writing on or before May 1, 2027 as to whether or not the Term is
extended by one (1) year for Phase 2. The decisions of the City shall be final.
6.07 Marketing of Recovered Materials, Compost and Other Products. Contractor
shall be responsible for marketing, or arranging for the marketing, of all Recovered
Materials, all Compost and all other products produced from the Processing Facilities
utilized to process materials Collected in City, including the Materials Recovery Facility,
and the Food Scrap/Green Waste Processing Facility.
6.08 Limits on Modes of Disposition. City may direct Contractor, at any time, to stop
delivering Recovered Materials for uses that do not qualify as Diversion for purposes of
the Act. Contractor is prohibited from delivering any material Collected in City to a solid
waste landfill for use as ADC. This prohibition includes, but is not limited to, Recyclable
Materials, Green Waste, Food Scraps, Wood, Compost, material screened from Compost
processing operations, MRF "fines", MRF "overs" and all other products, byproducts and
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Residue from Processing Facilities utilized to Process materials pursuant to this
Agreement.
This prohibition applies even if CalRecycle or any other agency allows such materials
used as ADC to qualify as Diversion for purposes of the Act.
No MSW of any kind may be Disposed of on land at any location other than by delivery
to the City -designated landfill. No MSW of any kind may be disposed of in water or in the
atmosphere.
6.09 City Access to Processing Facilities. In addition to City's rights under other
provisions of this Agreement, City and its agents shall have the right at all reasonable
times to enter each of the Processing Facilities to (a) observe operations, (b) observe
compliance with permit requirements, (c) observe tonnage allocation and tonnage
tracking procedures, and (d) for any other reasonable purpose.
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ARTICLE 7: EQUIPMENT, FACILITIES AND PERSONNEL
7.01 General. Contractor shall furnish all facilities, vehicles and equipment necessary to
perform safely and efficiently the services required by this Agreement. Contractor shall
provide Collection vehicles, Carts, and other equipment as described in Sections 7.03
and 7.04 of this Article 7 and in Attachment B.
7.02 Facilities.
7.02.A General. Contractor shall provide all facilities required for storage,
maintenance, repair and deployment of all vehicles and equipment required to perform
the services required by this Agreement. Contractor shall also provide the necessary
facilities and office space for personnel of Contractor providing the services required by
this Agreement. The facility or facilities used by Contractor to perform the required
services shall be fully permitted in compliance with all Federal, State and local laws, rules,
and regulations. In the event the City receives complaints about the facilities (whether
for noise, odor, litter, traffic problems or any other issue and regardless of whether said
facilities are located within City or not), Contractor shall promptly take action to address
the issue(s) and shall resolve the problem within five (5) business days.
7.03 Vehicles.
7.03.A General. Contractor shall provide Collection and auxiliary vehicles in the
quantities and of the type, size and configuration listed in Attachment F for operations in
City throughout the Term. (Vehicle Identification Numbers marked "TBD" on Attachment
F shall be provided by Contractor to City on or before January 15, 2022.) Contractor shall
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provide the Collection vehicles listed as model year "2021" in Attachment F as of the
Effective Date, and shall provide the listed replacement vehicles on or before the dates
listed in Attachment F. The average age of the Collection vehicle fleet used in City (as
listed in Attachment F) shall not exceed seven (7) years at any time during the Term. The
average age of the fleet shall be calculated annually in April of each year of the Term
beginning in 2022 by using the methodology included in Attachment F. The seven (7)
year average age requirement applies only to the heavy-duty Collection vehicles used to
collect MSW, Recyclable Materials, and Food Scraps/Green Waste in City. However, no
vehicles utilized by Contractor in City shall be older than ten (10) years of age. This
includes Collection vehicles, the Household Hazardous Waste and Bulky Item Collection
vehicles, Cart delivery vehicles, and all ancillary vehicles such as Supervisor and
Recycling Coordinator vehicles.
The average vehicle age and a listing of vehicles in service in the City shall be
submitted to the City with the annual report as described in Attachment K. City shall have
the right to inspect all vehicles serving the City to verify the vehicle age, on -board
technology, auxiliary equipment, vehicle markings, aesthetic condition, and safety
systems at any time during the Term, in a location and on a date mutually agreed upon
by the City and the Contractor.
All vehicles provided by Contractor shall be suitable in design and construction for
arduous heavy-duty service. The model year 2021 vehicles provided as of the Effective
Date, and all replacement vehicles listed in Attachment F, shall be new and unused. For
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purposes of this section, "new" means the truck chassis, body and all other parts and
components shall be new and unused.
All vehicles shall comply with all Federal and State laws and regulations including
but not limited to the California Air Resources Board regulations. All MSW, Recyclable
Materials, and Food Scrap/Green Waste Collection vehicles listed in Attachment F shall
be dedicated one hundred percent (100%) to use in City, and shall not be used to collect
any material in any other location at any time. Collection routes within the City for MSW,
Recyclable Materials, and Food Scraps/Green Waste shall Collect only materials from
within the City such that when the Collection vehicles are weighed at the Disposal facility
and/or at the Processing Facilities, one hundred percent (100%) of the Tons in each
vehicle originated solely from the City.
7.03.8 Alternative Fuel Vehicles/Use of City Fueling Station. All Collection
vehicles (including all side loaders, rear loaders, single -pass vehicles, and all other types
of vehicles used by Contractor to Collect MSW, Recyclable Materials and/or Food
Scraps/Green Waste in City) shall be alternative fuel vehicles, using liquefied natural gas
("LNG") or compressed natural gas ("CNG") as approved by the South Coast Air Quality
Management District for MSW, Recycling and Food Scrap/Green Waste Collection
vehicles. All vehicles shall operate in full compliance with the requirements of the
California Air Resources Board and the South Coast Air Quality Management District's
rules and regulations including, but not limited to, Rule 1193 "Clean On -Road Residential
and Commercial Refuse Collection Vehicles". Route Supervisor's and Recycling
Coordinators' vehicles, pickup trucks, the Bulky Item Collection vehicle(s), the Door -to-
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Door Household Hazardous Waste Collection vehicle(s) and all other ancillary vehicles
that will operate on a routine basis in the City shall comply with all applicable Federal,
State and local laws, rules, and regulations, including, but not limited to, the California Air
Resources Board and South Coast Air Quality Management District regulations.
City benefits from the sale of CNG at the CNG fueling station adjoining the
City -owned transfer station property. Contractor agrees to purchase CNG from this
fueling station, with this station and Contractor's facility on Lampson in Garden Grove as
the primary facilities for fueling all of Contractor's Residential Collection vehicles providing
Collection services in City pursuant to this Agreement.
7.03.0 Vehicle Identification. The phrase "Serving the City of Newport Beach"
and the name of Contractor, Contractor's local telephone number, and a unique vehicle
identification number for each vehicle shall be prominently displayed on all Collection
vehicles. Alternative Fuel Vehicles shall display a statement as to the type of alternative
fuel being used. City shall have the right to approve all details, including size, color and
location of text, identification numbers and logo.
7.03.113 Cleaning and Maintenance.
7.03.113.1 General. Contractor shall maintain all equipment used in
providing service under this Agreement in a safe, neat, clean and operable
condition at all times. In the event City gives Contractor written notice that any
vehicle does not comply with the standards set forth in this Agreement, the vehicle
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shall be promptly removed from service within the City and not used again until
inspected and authorized in writing by the City.
7.03.D.2 Cleaning. The exterior and interior of vehicles used in the
Collection of MSW, Recyclable Materials, and Food Scraps/Green Waste, shall be
thoroughly washed by Contractor at least once a week or more often as needed to
maintain a clean appearance and thoroughly steam cleaned at least once a month
or more often as needed to maintain a clean appearance. In addition, the interior
Collection compartment of vehicles used for the Collection of Food Scraps/Green
Waste shall be thoroughly washed on a daily basis. City may inspect vehicles at
any time to determine compliance with sanitation requirements and aesthetic
conditions. Contractor shall make vehicles available to the Orange County
Department of Environmental Management and to the City for inspection, at any
frequency that either requests. Contractor shall make vehicles available for
inspection by City within twenty-four (24) hours of City's request.
7.03.D.3 Painting. All vehicles used in Collection of MSW, Recyclable
Materials, and Food Scraps/Green Waste, shall be repainted by Contractor at least
once every five (5) years, unless the City determines that repainting specific
vehicles at that frequency is not necessary because the vehicle's appearance is
satisfactory or unless the City determines that repainting a specific vehicle earlier
(due to graffiti, wind damage, etc.) is necessary to ensure that the vehicle gives
the appearance of having been repainted within the preceding sixty (60) months.
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All graffiti shall be removed or painted over within two (2) business days of
discovery.
7.03.13.4 Maintenance. Contractor shall inspect each vehicle daily to
ensure that the vehicle and all equipment is operating properly and in compliance
with this Agreement. Vehicles which are not operating properly shall be taken out
of service until they are repaired and operate properly. Contractor shall perform
or cause to be performed all scheduled maintenance functions in accordance with
the manufacturer's specifications and schedule. Contractor shall keep accurate
records of all vehicle maintenance, recorded according to part or vehicle
identification, date, and mileage, and shall make such records available to the City
upon request.
7.03.13.5 Repairs. Contractor shall repair, or arrange for the repair of, all
vehicles and equipment for which repairs are needed because of accident,
breakdown or any other cause so as to maintain all vehicles and equipment in a
safe and operable condition. If an item of repair is covered by a warranty,
Contractor shall obtain warranty performance. Contractor shall maintain accurate
records of repair, which shall include the part or vehicle identification,
date/mileage, nature of repair and the signature of a maintenance supervisor that
the repair has been properly performed.
7.03.13.6 Storage. Contractor shall arrange to store all vehicles and other
equipment in safe and secure location(s). Facilities used for storage shall comply
with all zoning and land use requirements applicable to the facility(ies) whether
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located within City or in other jurisdictions. Contractor shall not store vehicles or
equipment in parking lots, vacant lots, on public streets, on any public property, in
the public right-of-way or in any other non -permitted area. In the event Contractor
determines there is a need to store vehicles or equipment on a public street, in the
public right-of-way or on other public property within City, Contractor shall first
obtain a temporary street closure permit from the City Public Works Department
and shall also obtain prior written consent of the City. City shall have access to
Contractor's regular vehicle and equipment storage facilities at all times.
7.03.D.7 Leaking Vehicles. In the event that City or Contractor receives a
report of a leaking vehicle, Contractor shall, upon notification by City, Customer or
other Person, immediately take the vehicle out of service and repair the leak.
Contractor shall be responsible for immediate cleanup of any spilled fluids whether
on public streets, private streets, public property or private property. Contractor
shall also immediately notify City and all applicable agencies (as listed in Section
4.08.0 of this Agreement) of any leaked liquid or spill that is near or that reaches,
or that Contractor reasonably believes could reach, a storm drain, waterway, the
bay or ocean, stream, wetland, or any other body of water. Vehicles collecting
Food Scraps/Green Waste shall be specially designed and manufactured to
contain liquid and prevent leaking.
7.03.D.8 DMV Registration/BIT Inspections/Brake Inspections. All
vehicles utilized by Contractor in the performance of this Agreement shall be
registered with the California Department of Motor Vehicles. All vehicles shall pass
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the required California Highway Patrol biennial inspection of the terminals ("BIT")
Within fifteen (15) calendar days after the BIT inspection, Contractor shall submit
records to City from all of the terminal(s) responsible for the maintenance and
repair of equipment used in City, showing the results of the inspection(s).
The brake system of each Collection vehicle used in performance of this
Agreement (including all rear loaders, side loaders, single -pass vehicles, and the
Household Hazardous Waste and Bulky Item Collection vehicles) shall be
inspected and certified annually. Notice of certification for each vehicle shall be
filed with the City within thirty (30) calendar days after each certification, but in no
event later than May 1 of each year of the Term beginning May 1, 2022. Failure
to submit the required certification shall be grounds for termination of this
Agreement.
7.03.E Operation. Vehicles shall be operated in compliance with the California
Vehicle Code and all applicable safety regulations and local ordinances. Vehicles shall
be operated only by employees of Contractor who are appropriately licensed by the
California Department of Motor Vehicles for the class of vehicle they drive. All drivers
employed by Contractor and operating vehicles in the City shall be enrolled in the
Department of Motor Vehicles Employee Pull Notice ("EPN") program and shall abide by
all State and federal regulations for driver hours and alcohol and controlled substance
testing. Contractor shall not load vehicles in excess of the manufacturer's
recommendations or limitations imposed by state or local weight restrictions on vehicles
including, but not limited to, legal axle load weight limits. Contractor is solely responsible
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for paying any fines imposed by the California Highway Patrol, or other regulatory
agencies, for violation of these or any other requirements.
The issuance of four (4) or more vehicle, driver/operator or other citations
for moving violations (including but not limited to, exceeding the speed limit, unsafe
speed, unsafe driving, reckless driving, running a red light, and unsafe turns) that relate
in any way to operations performed pursuant to this Agreement within a twelve (12) month
period shall be deemed to be a breach of this Agreement.
7.03.F Vehicle Mirrors. All vehicles used by Contractor for providing services
pursuant to this Agreement with a gross vehicle weight rating of twenty-six thousand
(26,000) pounds or more shall be equipped with a convex mirror on the front of each
vehicle, adjusted so as to enable the operator to see all points on an imaginary
horizontal line which:
(a) Is three feet (3') above the road;
(b) Is one foot (1') directly forward from the midpoint of the front of
the vehicles; and
(c) Extends the full width of the front of the vehicle.
7.03.G Collision Avoidance System. All vehicles operated by Contractor in the
City to Collect MSW, Recyclable Materials, Food Scraps/Green Waste, Bulky Items,
and Household Hazardous Waste shall include the best available collision avoidance
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system that is capable of detecting adjacent pedestrians, bicyclists, scooters,
motorcycles and vehicles. City reserves the right to inspect Contractor's vehicles, at
any time, to confirm that the installation and capability of Contractor's collision
avoidance system is consistent with the requirements herein.
On or before January 15, 2022, and on or before January 1 of each year of the Term
thereafter, Contractor shall submit to City a certification signed and dated by an
authorized corporate officer under penalty of perjury, containing the following and
stating that the information provided is true and correct and contains no false or
misleading statements or information as of the date on the certification:
i. List of all Collection vehicles (including front loader, rear
loader, side loader, and roll off vehicles and all "spares" plus
all Collection vehicles for Bulky Items and Household
Hazardous Waste) that Contractor uses in the City.
ii. Collision Avoidance System installed on each vehicle
including name of system, manufacturer, date installed, name
of Person who installed the system, name of Person(s) who
tested the system to ensure proper installation and operation
of system.
7.03.H Other Required Vehicle Technological Capabilities. All vehicles
operated by Contractor in the City to Collect MSW, Recyclable Materials and Food
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Scraps/Green Waste shall be equipped with a system that provides surveillance,
monitoring, auditing, recording and tracking including video and still photo equipment;
GPS system; i -pads (or tablet equivalent); ability to track serial numbers using bar code
scanners, QR codes or similar technology; backup cameras; and communication devices.
Collection vehicles in service in the City shall be equipped with 1) on -board modules for
operational Customer relationship management (CRM) functionality; 2) truck telematics
systems that provide real-time truck data, location, video and monitoring; and 3)
communications systems for contact with dispatch, the Route Supervisor, and other
Persons as needed.
The on -board operational CRM module shall be available to the driver via in -cab
functionality and accessible via a tablet in the cab of the vehicle. The operational CRM
system shall capture driver, route and service confirmation in real-time, which can be
accessed remotely by customer service and dispatch groups. The on -board operation
CRM system shall allow drivers to view and scroll through route listings, confirm service
completions, note service exceptions (i.e. Contamination, non -containerization, blocked
Cart access, non -set out, etc.), and receive additional dispatched work in real-time. The
on -board operational CRM system shall be accessible to the driver via electronic
communication that can be instantly transmitted to customer service and/or dispatch, who
also use the operational CRM platform. The operational CRM system shall also be able
to compute route statistics in real time, such as route productivity, work orders, billing,
and follow-up. The tablets hosting the on -board operational CRM system shall also be
dismountable by the driver for mobility purposes which will allow the driver to use the
tablet as a digital camera to photo -document service exceptions, link the exception to the
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Customers' account, and report serious operational issues to the City in real-time. The
operational CRM system shall allow the Contractor to note overloaded Carts, blocked
access, non -containerization, and contamination events and document them on the
Customer's account. The operational CRM system shall also generate template
notification alerts regarding service exceptions to the Customer, the City, the Route
Supervisor, and Recycling Coordinators (if applicable). These template notifications shall
be emailed directly to the Customer.
The on -board vehicle telemetrics system shall be connected to a network using
wireless data and shall also be connected to each collection vehicles' on -board
computer. The on -board vehicle telemetrics system shall include the GPS, video
surveillance, driver behavior, hours of service, and maintenance integration described
herein, to provide increased safety, service, and efficiency to vehicle operations. The
on -board vehicle telemetrics system shall also allow the Contractor to monitor driver
behavior, such as speeding, hard braking, hard acceleration, and area violations. The
Route Supervisor and other responsible parties shall receive notifications when such
events occur so they may be addressed with the driver. The video capture component
of the on -board DVIR system shall be able to be viewed in real-time or stored as a
means to review past safety or service events. The City shall have read-only access to
this footage. Video capture shall include in -cab, front, rear and side -views. Contractor
shall provide said video footage to City within five (5) business days of request; except
in the event of a crash, injury, fatality or other incident, Contractor shall provide said
video footage to law enforcement in the timeframe requested by law enforcement
representatives and/or agencies. Contractor's failure to provide video footage within the
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required timeframes will result in the assessment of liquidated damages described in
Section 13.09.D.3. Contractor's failure to provide proof of vehicles with the above-
described technological capabilities will result in the assessment of the liquidated
damages described in Sections 13.09.G.3 and 13.09.G.4.
7.04 MSW, Recyclable Materials and Food Scrap/Green Waste Carts.
7.04.A General. Contractor shall furnish (and deliver to Customers) all
Carts for storage of (i) MSW, (ii) Recyclable Materials and (iii) Food Scraps/Green Waste
of the types and sizes as described in Attachment B. A list of the Carts to be provided by
Contractor, and the specifications for said Carts, are included in Attachment E. The type,
size and number of Carts shall be sufficient to provide all of the Carts and Extra Carts
described in Attachment B.
7.04.6 Cart Ownership. Contractor shall own all of the Carts provided to
Customers. If requested by City at the end of the Term, Contractor shall remove all Carts
from the City at a timing mutually agreed upon with City.
7.04.0 Cart Distribution. Contractor shall distribute new Carts to
Customers for Food Scraps/Green Waste on or before the dates required in Attachment
B. In the event Contractor fails to distribute the Carts to Customers according to the
required schedule, the liquidated damages in Section 13.09 shall apply. Contractor may
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utilize the existing Roto Carts and other existing Carts in place at Customers' Residences
as of the Effective Date, as described in Attachment B.
7.04.D Repair, Replacement, and Exchange. Contractor shall repair or
replace any Cart which is damaged, broken, lost or stolen. Contractor shall also repair or
replace all Carts which do not meet vendors' warranties and the City -required Cart
specifications set forth in Attachment E.
Upon request from a Customer, Contractor shall exchange a Cart that is in
Customer's possession and not damaged, broken, lost or stolen for a new Cart within
fourteen (14) calendar days of request.
7.04.E Cleaning and Maintenance of Contractor -Furnished Carts.
Contractor shall maintain all Contractor -furnished Carts in a functional condition and so
as to present an attractive appearance. Contractor -furnished Carts that have been
painted or marked with graffiti shall be removed from the Premises by Contractor within
two (2) business days of notification by the Customer or City. At the same time as such
Carts are removed, they shall be replaced by like -sized Carts for the same materials
furnished by Contractor free of graffiti. Contractor understands and agrees that painting
over graffiti shall not constitute replacement. Contractor shall clean and maintain all
Contractor -furnished Carts in a safe and sanitary condition and whenever the City, or
another agency with jurisdiction as a regulator, determines that cleaning is required to
abate a health concern or nuisance condition. Under no circumstances shall Carts be
hosed out or cleaned on-site at a Residence unless all water used in such cleanout is
contained in a tank and hauled off-site by Contractor. Water from the cleaning of Carts
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is prohibited from being discharged to, or allowed to enter, any water or pathway to water
including, but not limited to, storm drains, sewer drains, waterways, the ocean, the bay,
estuary(ies), channels, wetlands, or any street, alley, parking lot or other surface that
could allow the water to drain into any of the water pathways listed herein.
7.05 Personnel.
7.05.A General. Contractor shall furnish such competent, qualified and
trained drivers, laborers, mechanical, supervisory, clerical, customer service, managerial,
Recycling Coordinators, and other personnel as may be necessary to provide the services
required by this Agreement in a safe, efficient, reliable and courteous manner. The
minimum complement of employees which Contractor will provide to perform the scope
of work described in this Agreement shall be as set forth on Attachment G.
Contractor shall provide fully qualified and experienced management
personnel as named in Attachment G and shall not substitute those indicated by a star,
(*) on Attachment G without the prior written consent of City. Specific qualifications and
duties of the following personnel are described herein: Recycling Coordinators (Section
7.05.1-1), City Operations and Customer Liaison (Section 7.05.1), Senior Manager
Responsible for Development and Marketing of Compost and Compost products (Section
7.05.M) and dedicated Route Supervisor (Section 7.05.N). Contractor shall perform all
work and provide all services described in this Agreement in a manner commensurate
with industry professional standards. All Collection vehicle drivers, Recycling
coordinators, the Customer Liaison and all supervisory personnel must be able to
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communicate effectively in English (both orally and in writing). An order given to
supervisory personnel shall be deemed delivered to Contractor.
7.05.B Driver Qualifications. All drivers shall be trained and qualified in
the operation of MSW, Recyclable Materials and Food Scrap/Green Waste Collection
vehicles and must have in effect a valid license, of the appropriate class, issued by the
California Department of Motor Vehicles. Each driver shall carry his/her license during
work hours.
7.05.0 Uniforms. Contractor shall require its drivers, Recycling
Coordinators and all other employees who come into contact with the public in the City
during working hours, to wear standardized uniforms bearing the Contractor's name, and
to carry an identification badge or other means of identifying the employee. The City shall
have the right to approve the style and color of the uniforms. Such uniforms shall present
a freshly cleaned appearance. Employees shall be instructed to present employment
identification cards to City staff, Customers, security guards and law enforcement officers
upon request, during work hours.
7.05.D Written Operating Procedures. Contractor shall establish,
implement and maintain written operating procedures designed to ensure Contractor's
utilization of techniques generally accepted in the solid waste and recycling industry for
cities of the size and nature of Newport Beach, including but not limited to, procedures
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for handling and disposal of Hazardous Waste and hazardous substances and
procedures for Contractor's compliance with all the provisions of this Article 7.
7.05.E Safety Training. Contractor shall provide suitable operational and
safety training for all of its employees who utilize or operate vehicles or equipment for
Collection or processing of MSW, Recyclable Materials, and Food Scraps/Green Waste
and/or who are otherwise directly involved in such Collection or processing. Such training
shall include, but not be limited to, the following: (i) safety training for drivers regarding
pedestrian safety and driving where other vehicles are present; (ii) special safety
protocols to be implemented when driving past or near any school and in any area where
children may be present on their way to or from any school (including avoiding driving in
said areas during the times children are present on their way to or from school as required
by Section 4.07.0 of this Agreement); (iii) step-by-step handling of Hazardous Waste
found in or on trucks, Carts, streets, alleys or any other location including training on
specific contact names and direct dial telephone numbers to contact immediately in the
event of a Hazardous Waste incident or spill including but not limited to the City Public
Works Department, City Fire Department and the County of Orange; (iv) handling of on-
board fires in vehicles and fires in Residential Carts; (v) proper protocols for handling
spills of any fluid or liquid, any MSW, Food Scraps/Green Waste and/or Recyclable
Materials on or leading to any street, alley or parking lot and into any area where there is
a likelihood of the spill entering any waterway or pipe, channel or drain that leads to any
waterway including storm drains, sewers, the bay, the ocean, creeks, tidal estuaries,
wetlands, channels, or any other waterway or water source including names and direct
dial telephone numbers to be immediately contacted at the City Public Works Department,
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City Fire Department, County of Orange, and other responsible agencies in the event of
such a spill; (vi) training on the dangers of impaired driving due to alcohol, drugs, lack of
sleep, fatigue and/or other factors; (vii) training on the dangers of distracted driving and
protocols prohibiting the use of texting, telephone and other on -board electronic devices
while the vehicle is in motion.
7.05.E No Gratuities. Contractor shall not permit any officer, agent or
employee to request, demand or solicit, directly or indirectly, or to accept, either directly
or indirectly, any additional compensation or gratuity from members of the public, any City
representative or employee, or any other Person or entity for the Collection of MSW,
Recyclable Materials, Food Scraps/Green Waste, or any other material under this
Agreement.
7.05.G Employee Conduct and Courtesy. Contractor shall use its best
efforts to assure that all employees present a neat appearance and conduct themselves
in a courteous manner. Contractor shall regularly train its employees in Customer
courtesy, shall prohibit the use of loud or profane language, and shall instruct Collection
crews to perform the work as quietly as possible. If any employee is found not to be
courteous or not to be performing services in the manner required by this Agreement,
Contractor shall take all necessary corrective measures, including, but not limited to,
transfer, discipline or termination. If City has notified Contractor of a complaint related to
discourteous behavior, Contractor shall, upon request of City, reassign the employee to
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duties not entailing contact with the public in the City of Newport Beach while the
Contractor is pursuing its investigation or disciplinary process.
7.05.H Provision of Two Recycling/Public Education Coordinators.
Contractor shall provide two (2) full time Recycling and Diversion Program Coordinators
("Recycling Coordinators" or "Coordinator(s)") dedicated solely to Newport Beach to
implement Diversion programs in the City for the period of January 15, 2022 through June
30, 2023. Effective July 1, 2023, Contractor shall provide one (1) full-time Recycling
Coordinator dedicated solely to Newport Beach through the end of the Term. The
minimum duties, work tasks, and requirements for both Recycling Coordinators shall be
as described in Attachment U. Each Coordinator will devote 100% of his or her time (the
equivalent of at least 2,000 work hours per calendar year) to these activities exclusively
for the City.
7.05.H.1 Recycling Coordinator Experience, Background and Training.
Each of the Recycling Coordinators identified in Attachment G, shall have a minimum of
one (1) year of experience in the design, implementation and operation of Recycling,
Composting and Diversion Programs. This shall not be an entry-level position. In lieu of
one (1) year experience as described herein, a Coordinator may have a bachelor's degree
in a relevant field such as environmental studies, environmental sciences, ecology,
systems ecology or a similar field. Contractor shall provide the following training for both
Recycling Coordinators: (i) A certification by a third party approved by City including, but
not limited to, the California Resource Recovery Association or the Solid Waste
Association of North America; and/or (ii) Contractor's in-house training which shall include
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training modules in the following: the Act, SB 1383 and AB 341; logistics and operation
of Diversion programs for Recyclable Materials, Food Scraps/Green Waste, Household
Hazardous Waste, and other types of materials; explanation of types of Processing
Facilities and processing methods for Recyclable Materials, Food Scraps, Green Waste,
and other types of materials; markets and end uses for Diverted materials; training in SB
1383 characterizations of each type of material Collected in City and required on-site field
Cart Contamination audits; training on how to conduct the on-site field Cart Contamination
audits and record and report results including understanding of what materials are
allowed in each Cart and what materials constitute Contamination; specific training in
reducing Contamination in Carts by interacting with Residents and community groups and
associations, and using all public outreach tools and methods required by this Agreement.
Such training shall also include "shadowing" one or more existing Recycling
Coordinator(s) in Newport Beach and/or other city(ies) as they perform all the tasks
required and described in Attachment U. If Contractor selects the in-house training
option, the in-house training of each Coordinator shall be a minimum of two (2) months in
length.
7.05.11-11.2 Documentation of Recycling Coordinator Training. Contractor
shall document all in-house training of Recycling Coordinators using Contractor's
standard training documentation method(s) and shall maintain records of each type of
training for each Recycling Coordinator including dates, times, locations and names of
trainers providing the training, for each training module/topic required herein. Contractor
shall submit the training documentation to City at the end of the minimum two (2) month
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training period (or sooner if the Coordinator has the required experience and/or degree
and is receiving supplemental in-house training by Contractor).
7.05.H.3 Deadline for Providing Two (2) Fully Trained Recycling
Coordinators. Contractor shall provide two (2) Recycling Coordinators that are fully
trained and experienced as described herein as of the Effective Date of this Agreement.
If Contractor fails to provide two (2) full-time Recycling Coordinators on or before the
Effective Date, the liquidated damages in Section 13.09.F shall apply.
Contractor shall notify City, in writing, of the name, education, background
and experience, plus the documentation described herein of all in-house training of each
Coordinator by Contractor, prior to the Coordinator commencing work. This same
information shall also be provided by Contractor whenever there is a change in the staffing
of one (1) or both of the Coordinator positions. Upon City request, Contractor shall
designate a different Coordinator if a Coordinator does not meet the requirements
enumerated herein and/or does not perform all the duties listed in Attachment U in the
manner described therein. City may request replacement of a Recycling Coordinator if
documented instances including but not limited to, the following occur, (1) repeated
complaints from Residents or Customers specifically about the Coordinator; (2) repeated
documented requests for actions made by City staff and not acted upon by the
Coordinator; (3) documented instances of rudeness, use of profanity, or other
unprofessional conduct when the Coordinator is interacting with Residents or Customers;
and/or (4) lack of knowledge of, and/or lack of demonstrated use of knowledge of the
requirements of this Agreement, the Act, SB 1383, and/or AB 341 when performing the
duties described in Attachment U.
The Coordinators' duties shall include those listed in Attachment U. City
reserves the right to prioritize the tasks to be completed as needed throughout the Term
of this Agreement and Contractor shall re -direct the work efforts of the Coordinator(s)
accordingly.
7.05.1 Provision of Operations and Customer Liaison to City. In addition
to the two Recycling Coordinators, the Contractor's representative designated pursuant
to Section 14.07.B, and the customer service representatives of Contractor, Contractor
shall also provide an Operations and Customer Liaison to City ("the City Liaison") to
resolve difficult and/or chronic Customer complaints; persistent, repeated and/or complex
Customer billing and payment issues; and other Customer service or City issues that are
not being resolved by Contractor's customer service representatives or the Recycling
Coordinators in a timely manner. The City Liaison shall work and communicate directly
with the City's designated staff person(s) to resolve issues as needed by the City. The
City Liaison shall support and assist the Recycling Coordinators in the performance of
their duties; personally make site visits and/or telephone calls to Residents that have
recurring Contamination in any stream(s) (i.e. MSW, Recyclable Materials and/or Food
Scraps/Green Waste) and/or overflowing Carts or uncontainerized MSW or Divertible
Materials; educate Residents about City ordinance requirements and options for source
reduction and additional Carts; personally conduct site visits and/or make telephone calls
to Residents with repeated service issues to troubleshoot and resolve; coordinate
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between Contractors' operations, customer service, Recycling Coordinators, executive
management, and other departments to resolve Customer issues. The Liaison will
dedicate the amount of time required such that all service disputes and issues are
addressed within one (1) business day. The Liaison shall make all reasonable efforts to
return calls from the City (that are received during normal working hours) within four (4)
business hours of receipt of the call and in no event later than one (1) business day after
receipt of the call. The City Liaison identified in Attachment G shall have a minimum of
three (3) years of experience in Collection operations for MSW, Recyclable Materials,
Food Scraps/Green Waste Household Hazardous Waste, sharps, E -Waste, Universal
Waste and all other material types; dispatch and operational logistics; Customer billing
and payments; Processing Facilities; implementation and operation of Recycling,
Composting and Diversion Programs; interaction with the public; and knowledge of the
requirements of the Act. This shall not be an entry-level position and Contractor shall
provide the City Liaison that is fully trained and experienced as described herein on or
before the Effective Date of this Agreement.
Contractor shall notify City, in writing, of the name, education, background and
experience and a list of three (3) references for the City Liaison prior to the City Liaison
commencing work and whenever there is a change in the staffing of the position. Upon
City request, Contractor shall designate a different City Liaison if the current or proposed
Liaison does not meet the requirements enumerated herein and/or if the City is otherwise
dissatisfied with the performance of the designated City Liaison.
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7.05.J Initial Hiring. Prior to commencement of operations, Contractor
shall hire the necessary complement of employees. Contractor shall conduct a
background check of each applicant, which will, at a minimum, include a check of his/her
driving record through the California Department of Motor Vehicles, record of criminal
convictions, and references. All applicants shall be required to take a standard test for
use of illegal drugs and alcohol as a condition of employment. Drivers shall be required
to demonstrate proficiency in the English language. At least one person proficient in
spoken English shall be on every Collection vehicle when that vehicle is in service.
Contractor will furnish City with a copy of its training manual and schedule for training of
new employees; City may require Contractor to include specific topics in such manual
and training program. City may attend and observe any safety or operational training
classes. Nothing in this Article 7 shall be construed to give City control over the selection,
or supervision of Contractor's employees.
7.05.K Ongoing Training and Testing. Contractor shall provide regular
safety training on an ongoing basis including, but not limited to, the safety training listed
in Section 7.05.E and shall conduct random drug and alcohol testing of employees in
safety -sensitive positions in compliance with regulations issued by the U.S. Department
of Transportation.
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7.05.1- Use of Workers Not Employed by Contractor. If Contractor
engages any workers through an independent contractor, such as an employment
agency, it shall ensure that such contractor or agency:
1. Complies with the nondiscrimination requirements in Section
14.01; and
2. Maintains Comprehensive General Liability, workers
compensation and Employer's Liability insurance covering such
workers in the amounts required by Section 11.02.A and with
policies meeting the other requirements of Section 11.02.
Contractor is responsible for providing qualified and competent workers, whether
as direct employees or through workers furnished by an independent contractor.
Contractor is also responsible for providing sufficient training to all workers so that they
can perform the work in a safe and competent manner and are thoroughly familiar with
the work that Contractor is required to perform and the standards it is required to meet,
under this Agreement.
All drivers, mechanics, supervisory and managerial workers shall be direct
employees of Contractor. The foregoing shall not preclude Contractor from utilizing a
temporary employment agency or outside contractor to provide the additional telephone
answering/customer service representatives during call surge periods as described in
Section 8.04.0 of the Agreement.
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7.05.M Provision of Senior Manager(s) Responsible For Development and
Marketing of Compost and Compost Products.
Contractor shall provide one or more senior manager(s) and technician(s) who are
responsible for and directly involved in, tailoring Compost end products for use in
agricultural and landscaping markets.
7.05.N Provision of Dedicated Route Supervisor.
Contractor shall provide a Route Supervisor dedicated exclusively to supervising
and assisting with Residential Collection services provided in the City of Newport Beach.
The dedicated Route Supervisor shall supervise, support and assist Collection drivers in
the performance of their duties; conduct site visits to Residences to resolve issues with
overflowing Carts, Non -containerized MSW or Divertible Materials and/or recurring
service problems or complaints; coordinate between Contractors' operations, customer
service, executive management, and other departments as needed to resolve Customer
issues, and respond to emergency situations in the field including, but not limited to, spills,
damage to Customer property, safety issues, vehicle breakdowns, collisions, and other
events.
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ARTICLE 8: OTHER COLLECTION -RELATED SERVICES
8.01 Billing.
8.01.A General. City compensates Contractor for providing services provided
pursuant to this Agreement as described in Article 12. Contractor shall direct -bill
Customers only for Extra Carts and the other optional Extra Services listed in Attachment
D-2, at the prices listed in Attachment D-2 (as adjusted during the Term pursuant to Article
12). Contractor shall: (i) maintain accurate direct -billing and payment records; and (ii) bill
Customers on a quarterly schedule as approved by City. Customer bills shall be itemized
showing the charges for each individual service. Customer billing shall be performed
pursuant to the requirements contained in Attachment B, Section 1 and an annual billing
audit shall be performed as described in Section 1 of Attachment B.
8.01.8 Content for City Mailings. City may direct Contractor to produce content
to include in City -distributed mailers relating to items including, but not limited to, City -
sponsored events, integrated waste management activities, other environmental
programs, notice of proposed cost increases, and Diversion program changes, at least
four (4) times per year.
8.01.0 Delinquent Accounts. Contractor shall be responsible for collecting
delinquent charges for the Extra Services listed in Attachment D-2 that it renders to
customers. Contractor shall employ measures consistent with federal and California laws
regulating the collection of debts, to obtain payment of charges including use of its own
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employees to obtain judgments in Small Claims Court, and to enforce such judgments.
Contractor shall follow the collection procedures described Section 1 of Attachment B.
8.02 Billing Records. Contractor shall keep records of all billing documents and
Customer account records including, but not limited to, invoices, Customer payment
coupons mailed with the invoice, collection notices, records of online payments, credit
card payments and all other billing and payment documents for the entire Term of the
Agreement and for five (5) years following the end of the Term or earlier termination of
the Agreement. Contractor may, at its option, maintain those records in electronic form,
hard copy, or in any other manner, provided that the records can be preserved and
retrieved for inspection and verification in a timely manner.
8.03 City Access to Billing Information. Contractor shall promptly provide City with
copies of billing information necessary to allow the City to respond to Customer inquiries
or complaints or as otherwise required by City within five (5) business days of request.
8.04 Public/Customer Service and Accessibility.
8.04.A Office Hours and Location. Contractor shall maintain an office located
either in the City or within a twenty-five (25) mile radius of the City limits. The office will
be available for Customers to pay bills, subscribe to service, change service, stop service,
change or stop Extra Services, and otherwise contact Contractor. Contractor's office shall
be open to the public from 8 a.m. to 5 p.m. Monday through Friday. The office may be
closed on Saturdays, Sundays and holidays as defined in this Agreement.
8.04.113 Availability of Representative. A knowledgeable representative of the
Contractor shall be available during office hours to communicate with the City and
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members of the public in-person and by telephone and to assist customers making
payment in-person.
8.04.0 Telephone. Contractor shall maintain telephone lines with a voicemail and
telephone answering system and customer service representatives in operation at its
office(s) during office hours as described herein.
8.04.C.1 Call Center and Staffing. The parties acknowledge that Contractor
utilizes a call center located at 11292 Western Avenue, Stanton, California that handles
calls for all cities served by Contractor in Southern California. As of the Effective Date,
the call center is staffed by forty-nine (49) customer service representatives, two (2)
supervisors and one (1) manager. Contractor acknowledges and agrees that it is of
extreme importance to City that calls from Newport Beach Residents receive prompt,
personalized service that is customized (i) to the specific services provided by Contractor
in Newport Beach; (ii) to the specific neighborhoods, geography, demographics and
clientele of Newport Beach; (iii) is designed to provide a telephone experience as if the
customer service representatives were located in Newport Beach; and (iv) is courteous,
helpful, and oriented to solving problems as quickly as possible. Contractor shall ensure
that throughout the Term of this Agreement, each customer service representative that
will be in contact with a Newport Beach Customer, is specifically trained in, and has
thoroughly read and understood, each and every piece of public outreach material
(including, but not limited to, all hard copy brochures, postcards, letters, mailings, hang
tags; all videos and social media posts; all newspaper ads, all press releases from
Contractor and City, and all materials that are on City's and Contractor's websites)
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relating to the services provided by Contractor pursuant to this Agreement) that have
been provided to Residential Customers via direct delivery to the Resident, the U.S. mail,
electronic mail, newspaper ads, social media channels, websites and all other methods
of outreach. Said public outreach materials shall include those prepared and provided to
Customers by Contractor, those prepared and provided to Customers by City, and those
prepared and provided to Customers by a joint effort of Contractor and City.
8.04.C.2 Call Answering, Telephone System Capabilities and Customer
Service. Contractor shall utilize call center customer data tracking software and
telephone technology such that calls are routed and answered by customer service
representatives at the call center as follows: (i) all calls shall be answered by or on the
third ring; (ii) the voicemail system shall require the caller to make no more than two (2)
selections from the voicemail menu before reaching a live customer service
representative or being placed in a "hold" queue; (iii) the number of customer service
representatives and the voicemail system shall be designed and maintained to result in
an average hold time of ninety (90) seconds or less (average to be calculated on a
monthly basis). The telephone system shall be designed and maintained to result in a
hold time that does not exceed two (2) minutes during the highest peak volume days and
times.
The voicemail/telephone system shall be capable of informing each Customer of
their estimated hold time. In the event the hold time exceeds two (2) minutes at any time,
the caller shall receive periodic prompts from the telephone system informing the caller
they can elect the option of leaving their name and call back number in -lieu of remaining
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on hold. The periodic prompts will be approximately every ninety (90) seconds. In the
event a Customer elects to leave a name and call-back number, the system shall indicate
the length of time within which the Customer will receive a call back. Such timeframe shall
not exceed sixty (60) minutes. All call-backs to Customers shall be completed by a live
customer service representative.
The telephone system utilized shall have the capability to generate detailed
information on hold times, non -connected calls, dropped calls, and other key customer
service metrics. Contractor shall report all these metrics to City on a monthly basis as
described in Attachment K. Additionally, City may request average hold -time and all other
metrics at any time and for any period of time. If the average hold time exceeds ninety
(90) seconds in any month, the liquidated damages in Section 13.09 of this Agreement
shall apply.
Contractor's customer service software system shall be capable of
connecting customer service representatives directly with Route Supervisor(s), Collection
drivers, the Recycling Coordinator(s), billing specialists and other personnel of Contractor
in order to resolve as many issues and complaints as possible while the Customer is on
the telephone with the representative. If an issue cannot be resolved immediately by
contacting other personnel of Contractor, the customer service representative shall make
all reasonable efforts to initiate the process of follow-up on the issue or complaint while
the Customer is still on the telephone.
Contractor's call center and customer service system shall be capable of
receiving texts or emails from Customers that include still photographs and video. The
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system shall also be capable of sending the Customer still photographs and video from
Contractor's Collection driver and/or other sources as part of the problem -solving
communication process.
Contractor's call center staff shall update Customer records with notes about each
call that shall include, but not be limited to, the date and time of the call, Customer's name
and address, the customer service representative handling the call, a detailed description
of the issue or complaint, any photographs and/or video sent by the Customer, the City
or City's agents, or by Contractor's personnel, noting whether said photos and/or video
were sent to the Customer and, if so, by what means, the solution to the problem or the
next steps to solve the problem, and the names and positions of all other employees of
Contractor who are involved in the issue and/or who are responsible for further research
or problem solving to resolve the issue(s). If the Customer is to receive follow-up
information, a site visit from Contractor's employee(s), and/or other contact from
Contractor, these shall be recorded in the notes of the call along with the date(s) and
time(s) conveyed to the Customer for such follow-up. Contractor's telephone and
Customer data system shall be capable of generating work orders as well as a listing of
all of the follow-up actions promised to Customers, the employee(s) of Contractor
assigned to carry out the actions, and the date by which the actions are to completed and
reported to the Customer. Said work sheet shall be generated at the frequency that the
City requires, and a Supervisor at the call center shall be charged with ensuring all
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promised follow-up actions are completed within the timeframes promised to the
Customer.
If City receives complaints that Customers are unable to reach Contractor's
office by phone, or are subject to excessive waiting time "on hold" prior to reaching a
customer service representative, City may (in addition to the assessment of liquidated
damages described in Section 13.09 of the Agreement) require that Contractor install
additional telephone lines and/or provide additional resources at Contractor's sole
expense, until the "hold times" meet the requirements herein.
8.04.C.3 Additional Call Center Personnel During Food Scrap/Green
Waste Program Rollout, Re-routing of City and New Charges to Customers. During
the period from January 15, 2022 through approximately June 30, 2022 the parties
anticipate that Customer calls will be at a much higher -than -average volume due to the
following changes in service: (a) a change in Collection day for over fourteen thousand
(14,000) Residences due to the optimized re-routing of the City by Contractor; (b) a
corresponding change in street sweeping days; (c) the delivery of a Food Scrap/Green
Waste Cart and kitchen Food Scrap pail with accompanying public education materials
to each Residence; (d) initiation of the Collection of Food Scraps/Green Waste from each
Residence; (e) notification to Residents that charges for Extra Carts and Extra Services
will be instituted as of April 1, 2022 and will be direct -billed to the Customer by Contractor
(pursuant to Article 12 and Attachment D-2) commencing with bills mailed April 1, 2022
(unless said date is extended by the City pursuant to Attachment B, Section 1.4.8); and
(f) notification to Residents that they will be required to Containerize all MSW, Recyclable
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Materials and Food Scraps/Green Waste and will be charged for Collection of Non -
Containerized materials after the Grace Period as described in Attachment B, Section
2.7.2. The City and Contractor further acknowledge that the changes listed herein as (a)
through (f) follow the distribution of new Recyclable Materials Carts and commencement
of Collection of Recyclable Materials at over six -thousand six hundred (6,600)
Residences in City that did not have Recyclable Materials Carts. Said distribution and the
commencement of Collection of Recyclable Materials at said Residences occurred during
the months of September through November 2021 pursuant to a prior contract between
the City and CR&R.
Due to the changes that will be experienced by Customers as described
herein, the Contractor agrees to provide sufficient additional customer service
representatives to City, as needed, during this important period of new program
implementation to achieve the telephone answering and customer service metrics
described in Section 8.04.C.2. It is the intent of the parties that the Contractor shall handle
as many customer service calls as possible and that customer service issues and
complaints be resolved by Contractor' s personnel to avoid the Resident escalating the
complaint, request and/or question to the City. The parties further agree the goal is for
Contractor to provide a level of additional personnel assigned to the City of Newport
Beach sufficient to prevent, to the extent reasonably possible, callers becoming frustrated
with hold times in Contractor's telephone answering system and calling the City with their
questions, requests and/or complaints.
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8.04.C.4 Potential Future Surges in Telephone Volumes In The Event of
Additional Program Rollout(s) or Major Service Changes. City and Contractor agree
that in the future there may be service changes, new program roll -outs, changes in billing
practices, and other such events that will cause an increase in call volumes received by
the Contractor above and beyond the normal/baseline number of daily calls from within
City. It is the intent of the parties that the Contractor shall handle as many Customer calls
as possible and that Customer service issues and complaints be resolved by Contractor's
personnel prior to the Resident escalating the complaint to the City.
When either party forecasts that an upcoming service change, new program roll-
outs, change in billing practices, and/or other such events will cause an increase in call
volumes received by the Contractor, the Contractor will submit a written request to City
(or City will request a written submittal from Contractor), at least one hundred twenty (120)
calendar days in advance of the start date of the projected increase in customer service
call volume, to add temporary customer service staff. Said submittal from Contractor shall
include the period of time when additional, temporary customer service staff will be
needed; the number of temporary customer service staff that will be needed; the
estimated cost of providing additional, temporary customer service staff using the hourly
rate set forth in Attachment D-1; forecasted increase in the number of inbound calls;
expected call volume each additional customer service representative will be expected to
handle; `talking points' and information; and other training materials that the temporary
customer service representatives would receive.
The City shall have fifteen (15) calendar days to review Contractor's submittal,
request additional information, and discuss the forecasted situation and the submitted
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information with Contractor. City shall notify Contractor of its decision within fifteen (15)
calendar days of final receipt of all information and material requested by City. The
decision of the City shall be final. In the event City denies a Contractor -initiated request
and the events forecasted by Contractor occur and cause an increase in call volumes
from Newport Beach Customers such that the required metric not -to -exceed ninety (90)
seconds average hold time contained in Section 8.04.C.2 cannot be achieved by
Contractor, the liquidated damages in Section 13.09 of the Agreement shall not apply for
the period of time contained in Contractor's request. (Waiver of liquidated damages shall
only apply to an entire calendar month. For example, if Contractor's request was for the
period January 20th — February 15th, and the City rejects Contractor's request, liquidated
damages for monthly average hold times in excess of ninety (90) seconds would be
waived for January and February).
8.04.C.5 Regular and Emergency Telephone Numbers. Contractor shall
maintain an emergency telephone number for use during other than normal business
hours and shall provide that number to City for use by City staff. Contractor shall have a
representative, or an answering service to contact such representative, available at the
emergency telephone number during hours when the office is closed. Contractor shall
arrange for a telephone number that is assigned solely to the City of Newport Beach such
that call volumes and other metrics described in this Article 8 can be tracked for the City
separate from calls received at Contractor's call center from Customers in other
jurisdictions. The telephone number shall be listed in all telephone directories generally
distributed in the City, all online telephone directories for the City of Newport Beach, on
all Contractor's bills and invoices, and on Contractor's website. Additionally, on most
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public outreach materials, signage, and other materials distributed to Residents, the
Contractor shall be listed as the main point of contact for Customer questions and
complaints unless it is explicitly not applicable to the Contractor's scope of services.
Contractor shall ensure that telephone calls to it from locations within the
City are billed as "local calls" by all telephone companies including cellular telephone
carriers.
8.04.D Correspondence. Contractor shall respond to all written correspondence
including e-mail and other electronic correspondence from City or Customers within one
(1) business day. Instructions on Contractor's invoices, website, online bill pay system
and all other correspondence to Customers shall indicate the response time of one (1)
business day and encourage the Customer to telephone if a faster response is needed.
8.04.E Electronic Subscription for Basic Service, Extra Services and
Payment of Bills for Extra Services. Contractor shall provide electronic access to
Customers for the following: (i) sign up for basic service (basic service is described in
Attachment B); (ii) sign up for any of the Extra Services listed in Attachment D-2, (iii)
changes to any Extra Services, (iv) discontinuation of basic service; (v) discontinuation of
any Extra Services, and (vi) payment of Bills for Extra Services. Contractor shall accept
major credit cards and shall provide direct debit service for payment of bills for Extra
Services.
8.04.F Maps, Schedules, Consumer Information. Contractor shall furnish the
City with maps and schedules for all Collection routes on or before the Effective Date of
this Agreement and shall update such maps and schedules whenever a change occurs.
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Contractor shall have current maps and schedules available for inspection by the public
at its business office. Contractor shall submit a new revised set of maps and schedules
to City on January 1 of each year of the Term commencing January 1, 2023.
In addition, Contractor shall prepare brochures containing information about
the Collection of MSW, Recyclable Materials, Food Scraps/Green Waste including
schedules of Collections, curbside procedures, and other useful information and shall
distribute such materials as described in Attachment B, Section 4.
Contractor will submit drafts of the maps, schedules and brochures to City
prior to distribution and will incorporate City's comments in the final version distributed to
the public.
8.04.G Website. Contractor shall provide a website customized for the City of
Newport Beach. The website shall include, but not be limited to, descriptions of all of
Contractor's services in the City of Newport Beach; notices of special events (such as
Christmas tree Collection rules and dates); information on acceptable items in MSW,
Recyclable Materials, and Food Scraps/Green Waste Carts and what materials constitute
Contamination of each material (including, but not limited to, "how to" videos as described
in Attachment X and Section 4 of Attachment B); information on starting, stopping,
changing service; information on electronic access as described in Section 8.04.E;
information on available Cart sizes; FAA's with answers; and updates for local special
circumstances and events including holiday Collection schedules. Contractor shall
maintain the website in good working order and shall frequently update the website to
ensure it reflects current services, all optional Extra Services and prices, and other
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relevant information at all times. Contractor shall allow City to establish a link on the City
website to Contractor's website.
8.05 Service Complaints. Contractor shall be responsible for the prompt and courteous
attention to, and prompt and reasonable resolution of, all Customer complaints relating to
service and billing. Contractor shall record in a separate log, the format of which must be
approved by the City, all complaints, noting the name and address of complainant, date
and time of complaint, nature of complaint, and nature and date of resolution. This
complaint log shall be available for inspection by City. In addition, Contractor shall
compile a summary statistical table of the complaint log (or a copy of the log if requested
by City) and submit the table, or copy, to City as part of the monthly reports described in
Attachment K beginning with the report for January 2022.
Contractor shall respond to all complaints from Customers within eight (8) working
hours of receipt of notice of the complaint. In particular, if a complaint involves a failure
to collect MSW, Recyclable Materials and/or Food Scraps/Green Waste from a
Residence as required by this Agreement, and the Cart(s) were placed for Collection in
accordance with the requirements in Attachment B and City's Municipal Code, Contractor
shall collect the MSW, Recyclable Materials and/or Food Scraps/Green Waste the same
day if the request was received prior to twelve o'clock noon (12:00 p.m.). If the complaint
was received after twelve o'clock noon (12:00 p.m.) Contractor shall Collect the MSW,
Recyclable Materials and/or Food Scraps/Green Waste by the end of the following
business day. If the complaint is received after normal working hours, Contractor shall
respond to the complaint within eight (8) working hours of the time Contractor's
employees receive the complaint information (i.e. for a complaint left at 7:00 p.m. on a
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weekday, Contractor's employees would receive the complaint at 8:00 a.m. the following
morning and would respond to the complaint before 4:00 p.m. the same day).
Complaints (other than missed pickups described above) that are not resolved by
the customer service representatives through Contractor's usual process within three (3)
business days shall be referred to Contractor's City Liaison for concentrated research and
resolution. Complaints such as those for missed pickups, Cart replacement, billing issues,
and other operational issues that are not resolved to the satisfaction of the City within five
(5) business days shall be subject to assessment of liquidated damages pursuant to
Section 13.09 of the Agreement. City shall not assess liquidated damages for the
following: (i) complaints that are outside Contractor's ability to correct; (ii) complaints
about providing services required by this Agreement that are within the timeframes,
operating hours and other parameters required of Contractor by this Agreement; (iii)
general complaints such as a resident does not like the Food Scrap/Green Waste and/or
the Recyclable Materials Collection program or does not like the material containerization
requirements; and (iv) complaints about the charges for Extra Carts, Extra Services
and/or Non -containerized materials that Contractor is authorized to charge pursuant to
this Agreement.
Contractor's City Liaison shall work with the Customer, Contractor's operations,
dispatch, billing and all other personnel required to resolve the complaint. The City Liaison
shall work with the City representative as needed to discuss and identify options to resolve
the complaint. Once the complaint is resolved the City Liaison shall provide photo
evidence (where applicable) of the resolution to the City and shall follow up to make sure
the complaint is truly resolved for a period of four (4) weeks. This follow up will include re -
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contacting the Customer to ensure the complaint is resolved and the problem(s) reported
have not recurred.
8.06 Customer Service Surveys. Contractor shall conduct Customer service studies to
help the City evaluate performance. City shall provide a list of questions that shall be used
in the Customer service survey, and a final survey shall be subject to City approval prior
to distribution. At Contractor's expense, Contractor shall prepare and mail a survey
form/card to each Newport Beach Residence serviced by Contractor pursuant to this
Agreement. City will provide Contractor with a Customer mailing list. All survey forms and
cards shall be mailed directly from the Resident to the City at Contractor's expense, via
business reply mail. City shall share the results of the survey with Contractor. Upon
receipt of the results from the initial survey, City and Contractor will meet and discuss the
results and how service can be improved by Contractor to address complaints or other
criticisms of the service being provided. The first Customer service survey shall be mailed
to Customers on or before September 30, 2022. Thereafter, upon City request, Contractor
shall conduct additional Customer service surveys, but not more than once every two (2)
years, for the remainder of the Term.
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ARTICLE 9: RECORD KEEPING, REPORTING, INSPECTIONS AND
AUDITS
9.01 General. Contractor recognizes that maintenance of accurate and complete records
of its operations and timely submission to City of accurate and complete reports is an
essential aspect of the services to be provided by it under this Agreement.
9.02 Record Keeping. Contractor shall maintain accurate records of: (i) personnel;
(ii) equipment; (iii) Collection operations; (iv) Tonnages for Disposed MSW and Disposed
Tons of Residue from the following facilities: Clean MRF and Composting Facility; (v)
Diverted Tons of Recyclable Materials, Food Scraps, and Green Waste; (vi) Customer
service; (vii) billing and payment; (viii) sale of Recyclable Materials, Compost, and all
other revenue -generating products; (ix) financial matters; and (x) other matters in such
detail and format necessary to compile the reports required by this Agreement, including,
but not limited to, all reports listed in Attachments K and N. All records of activities of
Contractor in fulfilling the requirements of this Agreement, including but not limited to the
above -listed records, shall be maintained by Contractor for the entire Term of the
Agreement. Contractor may, at its option, maintain those records in electronic form, hard
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copy, or in any other manner, provided that the records can be preserved and retrieved
for inspection and verification in a timely manner.
9.03 Reporting. Contractor shall compile and submit to City complete and accurate
reports required by this Agreement, including but not limited to the following:
9.03.A Reports Listed in Attachment K. Monthly, quarterly and annual reports
of Tonnages, Collection and Diversion operations, and other items.
9.03.113 Reports Listed in Attachment N. Results of Characterization Studies of
all Processing Facilities and the Disposal Facility, and results of all On -Site Field
Container Contamination Audits.
9.04 Inspection by City. The City shall have the right, but not the obligation, to observe
and inspect all of the Contractor's operations involved in providing services under this
Agreement to determine whether Contractor is performing in accordance with this
Agreement and applicable laws and regulations. Contractor shall cooperate fully with
such inspections, including inspections and observations of operations at all Processing
Facilities. In connection therewith, the City shall have the right to enter any of Contractor's
facilities, observe operations for an unlimited amount of time, photograph operations and
record by both written and electronic media such observations, obtain measurements and
determine the quality of Recovered and/or processed materials. Where photo-
documentation or other media capture is required by City or its agents to verify
Contractor's claims and/or reported tonnages, Diversion or other information, such
material shall be stored at Contractor's facility in a location secured to Contractor's
satisfaction. The City shall have the right to speak with any of Contractor's employees,
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where it is necessary to obtain clarification or pertinent detail that can best be provided
by the employee(s), and to receive a response to any inquiries directed to such
employees; and review and make copies (at City's expense) of any and all of Contractor's
operational and business records related to this Agreement. If City so requests,
Contractor shall make specified personnel available to accompany City employees and/or
City's agents on inspections. City's access to, and observation of activities and
operations at each Processing Facility, shall not be restricted or impaired in any way by
Contractor.
City may periodically investigate Contractor's financial status to determine
Contractor's financial capacity to continue to perform in accordance with this Agreement.
Such investigations will be done at the sole expense of City, using such City employees
or independent agents as City deems appropriate. Contractor shall cooperate during
such investigations and shall make available for inspection such records as the City, its
agents and/or authorized personnel, may request as it pertains to the determination of
Contractor's financial capacity and capability.
Contractor shall maintain a complete roster of employees providing service under
this Agreement. The roster shall contain the name, employee number, job classification
and such other information as City may require. The City may inspect the roster, and
make a copy thereof at its expense, at any time during business hours. City shall have
the right to observe Carts of MSW, Recyclable Materials, Food Scraps/Green Waste, and
all other materials for the purpose of conducting waste audits, characterization audits and
Contamination audits as needed during the Term.
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9.05 Compliance Reporting. Contractor shall submit monthly, quarterly and annual
reports to the City documenting the disposition of MSW, Recyclable Materials, Food
Scraps/Green Waste, and Compost, and shall format such reports so that they may be
used by the City for City's compliance with the reporting requirements of the Act or any
other subsequently enacted federal, state or local laws, rules, or regulations governing
integrated waste management. Contractor shall also comply with all requirements of AB
901 (PRC Sections 41821.5-41821.8) as it may be amended, and all regulations
promulgated thereto, regarding reporting Tons to CalRecycle, the City and other
agencies. The aggregation of tonnages permitted by AB 901 shall not alter any of
Contractor's reporting requirements in this Agreement. The confidentiality provisions of
AB 901 shall not apply to any of Contractor's reports submitted pursuant to this
Agreement. All Contractor's reports are subject to audit by City, or by a third -party
designated by City. The accuracy of all required reports to be submitted by Contractor is
of paramount importance to City. Such reports show how Contractor is tracking and
allocating Diverted Tons, Disposed Tons, Residue Tons and Tons delivered to, and
marketed from, Processing Facilities. The number of Tons Diverted and Disposed directly
impacts both the City's Diversion required by the Act, and the City's costs of Diversion
and of compliance with the Act. Therefore, Contractor shall make available all necessary
documents and information in order for the City to audit, analyze and review any tonnage
discrepancies or any other discrepancies, in Contractor's calculations, allocations,
tonnage tracking and submitted documentation and records as it pertains to this
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Agreement, including all reporting required of City by all federal and state agencies and
by any other laws.
9.05.A Material Discrepancy in Data Reported.
In the event that City discovers any material discrepancy in Contractor's reported
Diversion, Disposal, Tonnages, or any reported data required by this Agreement, City will
notify Contractor and Contractor shall have fourteen (14) calendar days to explain or
otherwise resolve the discrepancy or discrepancies to the satisfaction of City. If there
remains any doubt or question about the accuracy of Contractor's calculations,
allocations, documentation or disposition of Tons of MSW, Recyclable Materials, Green
Waste, Food Scraps, Compost, or any other materials, City may undertake a detailed
examination of all information, documentation, calculations and other data.
Contractor shall reimburse City's actual costs up to seventy-five thousand dollars
($75,000) in each calendar year for such analysis, research, and review. Contractor shall
cooperate fully with City's efforts and shall provide in a timely manner all additional City -
requested documentation, information, and records (both electronic and hard copy) and
shall provide access to all City requested documents and records both of Contractor and
of the Processing Facilities used to process Tons Collected in City.
City will invoice Contractor for the actual cost of said review and Contractor shall pay the
invoice within thirty (30) days of receipt. In the event that Contractor fails to pay City's
invoice within thirty (30) days of receipt, the liquidated damages listed in Section 13.09
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for late payment shall apply and City may deduct the unpaid balance from Contractor's
monthly compensation payment.
9.06 Annual Route Audit. Contractor shall conduct an annual audit, during the month
of April of each year of this Agreement, of all Collection routes for MSW, Recyclable
Materials, and Food Scraps/Green Waste. The audit shall include, at a minimum: (i) the
route number, (ii) identification number of vehicles servicing each route, (iii) number of
Customers serviced by route and by truck, (iv) number and sizes of Carts Collected
together with the frequency of Collection by route and by truck, (v) weight of MSW
Collected, (vi) weights by route and by truck of Single -Material Recyclables, Single
Stream Recyclable Materials, and Food Scraps/Green Waste, (vii) densities for all routes
including each material type on each route audited, in pounds per cubic yard, and (viii)
any pertinent operational details. Results of the route audit shall be delivered to City in
their entirety, including, but not limited to, maps of routes with each route numbered,
survey sheets, logs, route lists, forms used to gather information, and other similar
documents, within ten (10) working days of completion of the audit, and in no event later
than May 20 of each year of the Term. The initial audit shall be performed in April 2022
with the report due by May 20, 2022. Said audit may be undertaken directly by Contractor
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or on behalf of Contractor by another party, but in either event shall be completed at
Contractor's sole expense.
9.07 Characterization Studies and In -Field Container Contamination Audits.
Contractor shall conduct the following characterization studies and audits as described in
Attachment N:
9.07.A Characterization Studies. Contractor shall conduct characterization
studies of the streams of materials being delivered to each Processing Facility and of the
MSW being delivered to the Disposal Facility, using the protocols and at the frequencies
described in Attachment N. The first Processing Facility characterization studies shall be
conducted during 2022 as described in Attachment N. The characterization study reports
shall include the items listed in Attachment N and be submitted to City at the frequencies
and on the due dates described therein. City shall have the right to have City staff or
City's representatives present during any of the studies. Contractor shall give City a
minimum of thirty (30) calendar days written notice of the date(s), time(s) and location(s)
where Contractor shall conduct each study. The characterization studies and the reports
on results shall be performed and prepared at Contractor's sole expense.
The results of the characterization study shall be put into use the first day
of the month following submittal of the report to the City and approval of the report and
allocation method by City, and shall be used to report Tons Diverted and Disposed by
each Processing Facility for the City of Newport Beach in the monthly reports submitted
to City pursuant to Attachment K. Such results shall be used to report Tons Diverted and
Disposed by each Processing Facility for the City of Newport Beach until the results of
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the next characterization study are approved by City. If and when Contractor is required
to report to CalRecycle or any other agency, jurisdiction -specific Tons Diverted and Tons
of Residue for each Processing Facility used by Contractor to process City's materials,
Contractor shall report to CalRecycle figures that are consistent with the results of the
Processing Facility characterization studies described herein.
9.07.6 In -Field Container Contamination Audits. Contractor shall also conduct
on-site field Container Contamination audits at Residential Customers, using the
protocols and at the frequencies described in Attachment N. The Contamination audit
reports shall include the items listed in Attachment N and be submitted to City at the
frequencies and by the due dates described therein. In -field Contamination audits shall
commence as described in Attachment N. City shall have the right to have City staff or
City's representatives present during any of the audits. Contractor shall give City a
minimum of thirty (30) calendar days written notice of the date(s), time(s), and
locations/neighborhoods/routes where Contractor shall conduct each study. The audits
and the reports on results shall be performed and prepared at Contractor's sole expense.
9.08 Annual City Review of Contract Audits and Results. Each year of the Term, City
shall have the right, but not the obligation, to conduct a review of the procedures used to
perform all audits and characterization studies described in this Article 9 (including those
in Attachment N) and the results of said audits and studies. If City desires to review the
audit and/or study results and/or procedures, City will contact Contractor to schedule a
meeting or series of meetings to discuss the procedures and results. At City's sole
discretion, Contractor shall change the audit and/or study protocol, timing and frequency
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as directed by City and shall put such changes into effect with the next audit and/or study.
If either party believes the change will increase or decrease Contractor's costs, the
provisions of Section 4.11 and Section 12.05 of this Agreement shall apply. City's review
of audit and study procedures may include review of Contractor and Processing Facility
records and on-site visits to Contractor's facilities and Processing Facilities. City's access
to, and observation of activities and operations at each Processing Facility shall not be
restricted or impaired in any way by Contractor.
9.09 Reporting of Adverse Information. Contractor shall immediately provide
the City three (3) copies (one to the Public Works Director, one to the City Manager and
one to the City Attorney) of all reports, pleadings, applications, notifications, Notices of
Violation, communications or other material relating specifically to Contractor's
performance of services pursuant to this Agreement, submitted by Contractor to, or
received by Contractor from, the United States, U. S. Environmental Protection Agency,
California Environmental Protection Agency, CalRecycle, the Local Enforcement Agency,
the Securities and Exchange Commission or any other federal, state or local agency,
including but not limited to any federal or state court, and all agencies regulating
Processing Facilities owned or operated by Contractor used for processing Diverted
materials pursuant to this Agreement. Contractor's routine correspondence with said
agencies need not be submitted to City, but shall be made available to the City promptly
upon City's written request.
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ARTICLE 10: INDEPENDENT CONTRACTOR
10.01 Contractor an Independent Contractor. In the performance of services under
this Agreement, the Contractor shall be, and is, an independent contractor, and is not an
agent or employee of the City. Contractor has and shall retain the right to exercise full
control over the employment, direction, compensation and discharge of all Persons
assisting Contractor in the performance of Contractor's services hereunder. Contractor
shall be solely responsible for all matters relating to the payment of its employees,
including compliance with social security, withholding and all other regulations governing
such matters, and shall be solely responsible for Contractor's own acts and those of
Contractor's employees and other agents. Anything in this Agreement that may appear
to give City the right to direct Contractor as to the details of the performance of the
services required by this Agreement or to exercise a measure of control over Contractor
shall mean only that Contractor shall follow the desires of City to ensure compliance with
the Act, CalRecycle's requirements, and Contractor's performance under this Agreement
with respect to the results of the services required to be provided.
10.02 No Partnership or Joint Venture Created. Nothing in this Agreement shall be
construed as creating a partnership or joint venture between the City and Contractor, or
as giving the City a duty to supervise or control the acts or omissions of any Person
performing services or work under the Agreement.
10.03 No Entitlement to City Benefits. Neither Contractor nor its officers, employees,
agents or subcontractors shall be entitled to any retirement benefits, workers'
compensation benefits or any other benefits which accrue to any City employees, and
Contractor expressly waives any claim it may have to acquire such benefits. Contractor
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agrees to defend and indemnify City for any claims or demands brought by Contractor's
officers, employees, agents or subcontractors against City for such benefits.
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ARTICLE 11. INDEMNITY, INSURANCE, BOND
11.01 General Indemnification. Contractor shall indemnify, defend and hold harmless
City, its elected or appointed officials, officers, employees agents, consultants,
volunteers, affiliates, assignees, representatives, attorneys, subsidiaries, and affiliated
entities and their respective heirs and assigns (collectively "Indemnified Parties") from
and against any and all claims (individually "a claim", collectively "claims") including,
without limitiation, claims for bodily injury, death, or damage to property, demands,
obligations, damages, actions, causes of action, suits, losses, judgements, fines,
penalties, liabilities, costs and expenses (including, without limitation, attorney's fees,
disbursements, and court costs) of every kind and nature whatsoever which may arise
from or be in any way related directly or indirectly to City entering into this Agreement with
Contractor, Contractor's breach of its obligations under this Agreement, or Contractor's
performance of, or its failure to perform, its obligations under this Agreement. The
foregoing indemnity shall not apply to the extent that the Claim is caused by the sole
negligence, active negligence or the willful misconduct of the Indemnified Parties, but
shall apply if the Claim is caused by the joint negligence of Contractor and other Persons.
Upon the occurrence of any Claim, Contractor, at Contractor's sole cost and expense,
shall defend (with attorneys reasonably acceptable to City) City, its officers, employees,
and agents. Nothing in this indemnity shall be construed as authorizing any award of
attorney's fees in any action on, or to enforce the terms of this Agreement. This indemnity
shall apply to all claims and liability regardless of whether any insurance policies are
applicable. The policy limits do not act as a limitation upon the amount of indemmification
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to be provided by Contractor. Contractor's duty to indemnify and defend shall survive the
expiration or earlier termination of this Agreement.
Subject to the scope of this indemnification and upon demand of the City, made by
and through the City Attorney, Contractor shall protect City and appear in and defend the
Indemnified Parties in any Claims by third parties, whether judicial, quasi-judicial or
administrative, including, but not limited to (i) disputes and litigation over the definition of
"Municipal Solid Waste", "Recyclable Materials", "Food Scraps" or "Green Waste" (ii) any
claim concerning the validity of City entering into this Agreement or any ordinance or
action based thereon, as well as the limits of City's authority with respect to entering into
Agreements, including the process for the award and approval of Agreements, exclusive
or otherwise, (iii) involving the Collection of Municipal Solid Waste, arising out of the
exercise of this Agreement by Contractor, (iv) claims by other entities disputing the rights
and privileges granted by City in this Agreement, or (v) as specified under the provisions
of Section 11.05 below concerning Hazardous Waste. City and Contractor agree to
confer following any trial as to whether to appeal, or to oppose any appeal. Should either
City or Contractor decide to appeal, or to oppose appeal, and the other decide not to
appeal, or to oppose appeal, the party which decides to appeal, or oppose appeal, shall
bear all fees and costs of the appeal or the opposition to the appeal.
11.02 Insurance.
11.02.A Types and Amounts of Coverage. Without limiting Contractor's
indemnification of City, Contractor shall obtain, provide, and maintain at it's own expense
during the term of this Agreement, a policy or policies of liability insurance in the types
and amounts listed in this Section 11.02 and in a form acceptable to City, from an
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insurance company or companies licensed to do business in the State of California. If
Contractor maintains higher limits than the minimums listed in this Section 11.02, the City
shall be entitled to coverage for the higher limits.
11.02.A.1 Workers' Compensation and Employer's Liability. Contractor
shall maintain workers' compensation insurance covering its employees in
statutory amounts and otherwise in compliance with the laws of the State of
California. Contractor shall maintain employer's liability insurance in an amount
not less than One Million Dollars ($1,000,000) per accident or disease. Contractor
shall not be obligated to carry workers compensation insurance if (i) it qualifies
under California law and continuously complies with all statutory obligations to self -
insure against such risks; (ii) furnishes a certificate of Permission to Self Insure
issued by the Department of Industrial Relations; and (iii) furnishes updated
certificates of Permission to Self Insure periodically to evidence continuous self
insurance.
11.02.A.2 Comprehensive General Liability (and Automobile Liability).
Contractor shall maintain comprehensive general liability insurance with a
combined single limit of not less than Ten Million Dollars ($10,000,000) per
occurrence and Ten Million Dollars ($10,000,000) annual aggregate covering all
claims and all legal liability for personal injury, bodily injury, death, and property
damage, including the loss of use thereof, arising out of, or occasioned in any way
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by, directly or indirectly, Contractor's performance of, or its failure to perform,
services under this Agreement.
The insurance required by this subsection shall include:
(i) Premises Operations (including use of owned and non -
owned equipment);
(ii) Products and Completed Operations (including protection
against liability resulting from use of Recyclable Materials by
another Person);
(iii) Personal Injury Liability with employment exclusion deleted;
(iv) Broad Form Blanket Contractual with no exclusions for
bodily injury, personal injury or property damage (including
coverage for the indemnity obligations contained herein);
(v) Owned, Non -Owned, and Hired Motor Vehicles;
(vi) Broad Form Property Damage.
The comprehensive general liability insurance shall be written
on an "occurrence" basis (rather than a "claims made" basis) in a form at least as
broad as the most current version of the Insurance Service Office commercial
general liability occurrence policy form (CG0001). If occurrence coverage is not
obtainable, Contractor shall arrange for "tail coverage" on a "claims made" policy
to protect City from claims filed within four (4) years after the expiration or
termination of this Agreement relating to incidents that occurred prior to such
expiration or termination. Any excess or umbrella policies shall be on a "following
form" basis.
11.02.A.3 Pollution Liability. Contractor shall maintain pollution liability
insurance to include onsite, under -site and offsite coverage for bodily injury
(including death and mental anguish), property damage, regulatory fines, defense
costs and cleanup costs with minimum limits of Five Million Dollars ($5,000,000)
each loss and Ten Million Dollars ($10,000,000) in the aggregate covering claims
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as a result of pollution conditions arising out of its operations under this Agreement.
Non -owned Disposal site coverage shall be provided if Contractor is handling,
storing or generating Hazardous Waste or hazardous materials or any material or
substance otherwise regulated under environmental laws or regulations.
11.02.A.4 Physical Damage. Contractor shall maintain comprehensive
(fire and theft) physical damage insurance covering the vehicles and equipment
used in providing service to City under this Agreement, with a deductible or self-
insured retention not greater than One Hundred Thousand Dollars ($100,000).
The deductible limit may be increased by City with acceptable proof of self-
insurance. Notwithstanding the foregoing, Contractor shall be allowed to self -
insure for physical damage to its vehicles provided Contractor provides adequate
audited financial information to City and City is reasonably satisfied that Contractor
has the financial net worth to cover any losses.
11.02.6 Acceptability of Insureds. The insurance policies required by this
section shall be issued by an insurance company or companies admitted to do business
in the State of California, subject to the jurisdiction of the California Insurance
Commissioner, and with a rating in the most recent edition of A. M. Best's Insurance
Reports of size category VIII or larger and a rating classification of A or better.
11.02.0 Required Endorsements. Without limiting the generality of Sections
11.02.A and B, the policies shall contain endorsements making the City and its elected
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or appointed officers, officials, employees, agents and volunteers an additional insured,
and shall further contain additional endorsements in substantially the following form:
2. Workers' Compensation and Employers' Liability Policy.
"Thirty (30) days prior written notice shall be given to
the City of Newport Beach in the event of cancellation or non-
renewal of this policy. Such notice shall be sent to:
CITY OF NEWPORT BEACH
Public Works Director
P.O. Box 1768
100 Civic Center Drive
Newport Beach, California 92660
"Insurer waives all right of subrogation against City
and its elected or appointed officers, officials, employees,
agents and volunteers for injuries or illnesses arising from
work performed for City."
3. Comprehensive General Liability Policy; Pollution Liability
Policy.
"Thirty (30) days' prior written notice shall be given to the City of Newport Beach in the
event of cancellation, reduction of coverage, or non -renewal of this policy. Such notice
shall be sent to:
CITY OF NEWPORT BEACH
Director of Public Works
P.O. Box 1768
100 Civic Center Drive
Newport Beach, California 92660
"This policy shall be considered primary insurance as respects any other valid and
collectible insurance maintained by the City of Newport Beach, including any self-insured
retention or program of self-insurance, and any other such insurance shall not be called
upon to contribute in any way."
"Inclusion of the City of Newport Beach as an insured shall not affect the City's rights as
respects any claim, demand, suit or judgment brought or recovered against the
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Contractor. This policy shall protect Contractor and the City in the same manner as
though a separate policy had been issued to each, but this shall not operate to increase
the company's liability as set forth in the policy beyond the amount shown or to which the
company would have been liable if only one party had been named as an insured."
In addition, all property policies shall contain language, to the extent obtainable
on commercially reasonable terms, to the effect that any loss shall be payable
notwithstanding any act of negligence of City or Contractor that might otherwise result in
the forfeiture of the insurance.
4. Physical Damage Policy.
Notice of cancellation, reduction in coverage or non -renewal, as provided in Section
11.02.0
Cross liability endorsement, as provided in Section 11.02.0
Waiver of subrogation against City.
11.02.D Delivery of Proof of Coverage. No later than ten (10) calendar days
after execution of this Agreement by both parties, Contractor shall furnish City one or
more certificates of insurance on a standard ACORD form and required endorsements
substantiating that each of the coverages and endorsements required hereunder are in
force, in form and substance satisfactory to City. Such certificates shall show the type
and amount of coverage, effective dates and dates of expiration of policies and shall be
accompanied by all required endorsements. If City requests, copies of each policy,
together with all endorsements, shall also be promptly delivered to City in one complete
package. Contractor shall furnish renewal certificates to City to demonstrate
maintenance of the required coverages throughout the Term. Each year on or before the
renewal date for all insurance policies required herein, Contractor shall deliver to City a
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new package containing all insurance certificates with all of the required endorsements
and copies of all insurance policies required by this Agreement.
The Contractor shall obtain the written consent of the City's Risk Manager prior
to changing insurers providing insurance under this Agreement, which consent shall
not be withheld or delayed unreasonably.
11.02.E Other Insurance Requirements.
1. In the event performance of any service is delegated to a
subcontractor, Contractor shall require such subcontractor to provide statutory workers'
compensation insurance and employer's liability insurance for all of the subcontractor's
employees engaged in the work. The liability insurance required by Subsection 11.02.A.2
shall cover all subcontractors or the subcontractor must furnish evidence of insurance
provided by it meeting all of the requirements of this Section 11.02. This requirement
shall not apply to subcontractors providing non -operational incidental support services to
Contractor such as uniforms, uniform cleaning and janitorial services but shall apply to all
other subcontractors.
2. Contractor shall comply with all requirements of the insurers
issuing policies. The carrying of insurance shall not relieve Contractor from any obligation
under this Agreement, including those imposed by Section 11.01. If any claim is made
by any third Person against Contractor or any subcontractor on account of any occurrence
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related to this Agreement, Contractor shall promptly report the facts in writing to the
insurance carrier and to the City.
3. If Contractor fails to procure and maintain any insurance
required by this Agreement, City may take out and maintain, at Contractor's expense,
such insurance as it may deem proper and deduct the cost thereof from any monies due
Contractor. Alternatively, the City may treat the failure as a Contractor Default, and not
subject to any applicable cure period.
4. City is not responsible for payment of premiums for or
deductibles under any required insurance coverages.
5. The Parties acknowledge that the market for insurance is
subject to unforeseeable events which can affect the amount of coverage needed and
pricing therefor. Accordingly, in the event the City's Risk Manager determines that the
services under this Agreement create an increased or decreased risk of loss to the City,
Contractor agrees that the minimum limits of the insurance policies required by this
section may be changed accordingly upon receipt of written notice from the City's Risk
Manager; provided that Contractor shall have the right to appeal a determination of
increased coverage to the City Council of City within ten (10) days of receipt of notice
from the City's Risk Manager.
11.03 Faithful Performance Bond. Not later than ten (10) days after execution of this
Agreement by both parties, Contractor shall file with City a bond securing the Contractor's
faithful performance of its obligations under this Agreement. The principal sum of the
bond shall be Three Million Dollars ($3,000,000). The form of the bond shall be as set
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out in Attachment L. The bond shall be executed as surety by a corporation admitted and
licensed to issue surety bonds in the State of California, regulated by the California
Insurance Commissioner and with a rating in the most recent edition of A.M. Best's Surety
Bond Company Reports of A -VII or better.
The term of the bond shall be not less than twelve (12) months. The bond shall be
extended, or replaced by a new bond in the same principal sum, for the same term (i.e.,
twelve (12) months) and in the same form, annually thereafter. Not less than ninety (90)
days before the expiration of the initial bond, the Contractor shall furnish either a
replacement bond or a continuation certificate substantially in the form attached as
Attachment M, executed by the surety.
It is the intention of this Section 11 that there be in full force and effect at all times
a bond securing the Contractor's faithful performance of the Agreement, throughout its
Term.
11.04 Alternative Security. City may, in its sole discretion, allow Contractor to provide
alternative security in the amount set forth in Section 11.03, in the form of (a) a prepaid
irrevocable standby letter of credit in form and substance satisfactory to City and
approved by the City Attorney and issued by a financial institution acceptable to City, or
(b) a certificate of deposit in the name of the City with a term satisfactory to City and with
a financial institution acceptable to City.
11.05 Hazardous Waste Indemnification.
A. Without regard to any insurance coverage or requirements, and without
limiting the above general indemnification obligation in any way, Contractor specifically
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agrees to and shall, to the maximum extent permitted by law, defend (with counsel
acceptable to City) reimburse, indemnify, and hold City and its past and present officers,
council members, employees, consultants and agents (hereinafter "Indemnified Parties")
harmless from and against any and all claims, actions, liabilities, damages, demands,
judgments, losses, costs, liens, expenses, suits, actions, attorneys' fees, consultant fees,
penalties and any and all other losses, damages, fees and expenses of whatever kind or
nature ("Claims") (including but not limited to response costs, investigative costs,
assessment costs, monitoring costs, treatment costs, cleanup costs, removal costs,
remediation costs, and similar costs, damages and expenses) that arise out of or are
alleged to arise out of or in any way relate to any action, inaction or omission of Contractor
that:
1. Results in any demand, claim, notice, order, or lawsuit,
asserting that any Indemnified Party is liable, responsible or in any way obligated to
investigate, assess, monitor, study, test, treat, remove, remediate, or otherwise cleanup,
any Hazardous Waste (as defined herein); or
2. Relates to material Collected, transported, Recycled,
processed, treated or Disposed of by Contractor.
B. Contractor's obligations pursuant to this section shall apply, without
limitation, to:
1. Any Claims brought pursuant to or based on the provisions of the
Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"),
42 U.S.C. § 9601 et seq., the Resource Conservation and Recovery Act ("RCRA"), 42
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U.S.C. § 6901 et seq., the California Hazardous Substances Account Act (California
Health & Safety Code Sections 25300 et seq.), the California Hazardous Waste Control
Laws (California Health & Safety Code Sections 25100 et seq.), the California Porter -
Cologne Act (California Water Code Section 13000 et seq.), and any and all amendments
and regulations thereto, and any other Federal, State, regional or local environmental
statutory or regulatory provision;
2. Any Claims based on or arising out of or alleged to be arising out of the
ownership, use, lease, sale, design, construction, maintenance or operation of Contractor
of any facility;
3. Any Claims based on or arising out of or alleged to be arising out of the
marketing, sale, distribution, storage, transportation, Disposal, processing or use of any
materials recovered by Contractor;
4. Any Claims based on or arising out of or alleged to be arising out of any
breach of any express or implied warranty, representation or covenant arising out of or in
connection with this Agreement.
C. The foregoing indemnity and defense obligations shall apply irrespective of
the negligence or willful misconduct of Contractor or any Affiliate of Contractor.
D. For purposes of this Agreement, the term "Hazardous Waste" includes,
without limitation, any material or substance which is: (i) petroleum or oil or gas or any
direct or derivate product or byproduct thereof; (ii) defined as a "hazardous waste,"
"extremely hazardous waste" or "restricted hazardous waste" under Sections 25115,
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25117 or 25122.7, or listed pursuant to Section 25140, of the California Health & Safety
Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law); (iii) defined as a
"hazardous substance" under Section 25316 of the California Health & Safety Code,
Division 20, Chapter 6.8 (Hazardous Substance Account Act); (iv) defined as a
"hazardous material," "hazardous substance," or "hazardous waste" under Sections
25501(p), (q), and (r) and 25501.1 of the California Health & Safety Code, Division 20,
Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory); (v) defined
as a "hazardous substance" under Section 25281 of the California Health & Safety Code,
Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances); (vi) "used oil"
as defined under Section 25250.1 of the California Health and Safety Code; (vii) asbestos;
(viii) listed under Chapter 11 of Division 4.5 of Title 22 of the California Code of
Regulations, or defined as hazardous or extremely hazardous pursuant to Chapter 10 of
Division 4.5 of Title 22 of the California Code of Regulations; (ix) defined as waste or a
hazardous substance pursuant to the Porter -Cologne Act, Section 13050 of the California
Water Code; (x) designated as a "toxic pollutant" pursuant to the Federal Water Pollution
Control Act, 33 U.S.C. Section 1317; (xi) defined as a "hazardous waste" pursuant to the
Federal Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq. (42
U.S.C. § 6903); (xii) defined as a "hazardous substance" pursuant to the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601, et
seq. (42 U.S.C. § 9601); (xiii) defined as "Hazardous Material" pursuant to the Hazardous
Materials Transportation Act, 49 U.S.C. Section 5101, et seq.; (xiv) defined as such or
regulated by any "Superfund" or "Superlien" law; (xv) any asbestos or asbestos -
containing material; (xvi) any chemical which the Governor has identified as a chemical
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known to the State to cause cancer or reproductive toxicity pursuant to California Health
& Safety Code Section 25249.8; (xvii) or any other federal, state or local law, statute,
ordinance, code, rule, regulation, order or decree regulating, relating to, or imposing
liability or standards of conduct concerning Hazardous Materials and/or oil wells and/or
underground storage tanks and/or pipelines, as now, or at any time hereafter, in effect.
The term "Hazardous Waste" shall also include any and all amendments to the above -
referenced statutory and regulatory provisions made before or after the date of execution
of this Agreement. Where there is a conflict in the definitions employed by two or more
agencies having jurisdiction over Hazardous Waste, the term "Hazardous Waste" shall
be construed to have the broader, more encompassing definition.
E. The provisions of this section shall not terminate or expire, shall be given
the broadest possible interpretation and shall survive the expiration or earlier termination
of this Agreement.
11.06 Integrated Waste Management Act Indemnification. The parties agree
that Contractor's implementation of all programs in Attachment B is vital to the City's
compliance with the Act. Therefore, Contractor agrees to indemnify and hold harmless
the Indemnitees against all fines and/or penalties imposed by CalRecycle and/or the Air
Resources Board: (i) based upon Contractor's failure to comply with laws, regulations or
permits issued or enforced by CalRecycle, the Air Resources Board or the City; (ii) caused
or contributed to by the Contractor's failure to perform its obligations under this
Agreement, including, but not limited to, implementation of all programs in Attachment B
in the timeframes required. This indemnity obligation is subject to the limitations and
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conditions in Public Resources Code Section 40059.1 but is enforceable to the maximum
extent allowable by that Section. In the event that CalRecycle and/or the Air Resources
Board imposes penalties, fees and/or sanctions against City, Contractor shall, in addition
to paying the fines and penalties, pay all City's costs and fees for staff time, consultants,
attorneys and all other costs of defending and resolving the issue of CalRecycle and/or
the Air Resources Board issuing fines, penalties and/or sanctions against City.
11.07 Intellectual Property Indemnification. Contractor agrees to indemnify,
hold harmless and defend the Indemnitees against any and all liability, including costs,
for infringement of any United States' letters patent, trademark or copyright infringement.
11.08. Notice of Claim. City agrees to provide timely notice to Contractor when
the City receives a claim for damages or other liability for which Contractor has provided
indemnification pursuant to this Agreement. Contractor shall give City prompt and timely
notice of claim(s) made or suit instituted arising out of or resulting from Contractor's
performance under this Agreement.
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ARTICLE 12: COMPENSATION TO CONTRACTOR
12.01 General. Contractor shall perform the services required by this Agreement in
consideration for: (i) payments from City listed in Attachment D-1 as they may be adjusted
as provided in this Article, (ii) direct payments from Customers for Extra Services and for
Collection of Non -containerized materials as described in Attachment B and listed in
Attachment D-2, as they may be adjusted as provided in this Article, and (iii) the right to
retain all revenues, if any, from the sale of Recyclable Materials, Green Waste, Food
Scraps, Wood and the Compost and Compost Products created from such materials. The
revenues received from these sources shall be the full, entire and complete compensation
due to Contractor for all labor, equipment, materials, supplies, taxes, insurance, bonds,
overhead, Disposal costs, transfer costs, processing costs, profit and all other things
necessary to perform all the services required and reasonably anticipated by this
Agreement in the manner and at the times prescribed. Except as expressly provided
herein or in Attachments D-1 and D-2, Contractor shall be responsible for all other costs
and expenses related to Contractor's performance under this Agreement.
12.02 Initial Costs. The costs City shall pay to Contractor for services provided
commencing January 15, 2022 shall be those set forth in Attachment D-1. These costs
were based upon, and calculated in, an Excel spreadsheet containing several tabs which
was used by the parties to negotiate and arrive at the costs City shall pay Contractor for
services rendered pursuant to this Agreement. The costs in Attachment D-1 shall remain
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in effect through June 30, 2022 at which time the annual adjustments described in this
Article 12 shall be made to the costs in Attachment D-1 to become effective July 1, 2022.
Contractor may bill Customers directly for any Extra Carts and any Extra Services
the Customer subscribes to beginning April 1, 2022, at the prices listed in Attachment D-
2. Contractor shall not bill any customers for Extra Services or Extra Carts during the
period January 15 through March 31, 2022. At City's sole discretion, City may invoke an
Extra Services Charge Delay Period to extend the period of time that Contractor does not
direct -bill Customers for Extra Carts or for any Extra Services. The process for City to
invoke this Delay Period is described in Attachment B. During any City -invoked Extra
Services Charge Delay Period, City shall pay Contractor directly for all Extra Carts and
all Extra Services being provided by Contractor to Customers. City shall pay such costs
to Contractor on a monthly basis at the prices listed in Attachment D-1.
Contractor may bill Customers directly for incidents of non -containerization of
MSW, Recyclable Materials, and/or Food Scraps/Green Waste after the expiration of the
Grace Period as more fully described in Attachment B. As described in Attachment B,
the initial Grace Period is January 15, 2022 through February 14, 2022. The Grace Period
may be extended at the sole discretion of the City. During the Grace Period (and any City -
directed extensions to the Grace Period) the City shall pay Contractor for Collecting non -
containerized materials at the prices listed in Attachment D-1.
The prices in Attachment D-2 shall be in effect from January 15, 2022 through June
30, 2022. Prior to July 1, 2022, the annual adjustments described in this Article 12 shall
be made to the prices in Attachment D-2 to become effective July 1, 2022. In the event
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Contractor is found to be charging any price to any Customer(s) that is not included in
Attachment D-2 or is not the correct price as shown in Attachment D-2, Contractor shall,
upon realization of this fact or upon receipt of notification from City, refund all non -
authorized charges to all affected Customers within thirty (30) days. In the event
Contractor has charged a higher price than authorized by the City pursuant to this
Agreement, the difference between the price charged and the City -approved price shall
be refunded. In the event Contractor has charged a lower price than authorized by the
City, Contractor shall not charge the Customer for the difference between the price
charged and the City -approved price; however, Contractor shall notify the Customer and
give the Customer the option to continue to receive the service at the City -approved price,
or to arrange for a different Extra Service or a different level of Extra Service, or to cancel
the Extra Service. In such event, Contractor shall assist the Customer in selecting the
most cost-effective level of the Extra Service and City -approved price available. Upon
City request, Contractor shall provide City with a summary of all instances of non -City -
approved prices being charged, and the refunds or other adjustments made for
Customers.
If there is an Extra Service that Contractor believes it is required to provide and for
which there is no City -approved price in Attachment D-2, Contractor shall notify City. The
City may, in its sole discretion, establish a price for the new Extra Service, following
completion of any proceedings required under Article XIIID, Section 6, of the California
Constitution or other applicable law. Unless and until City establishes a price for such
Extra Service, Contractor shall not provide nor charge for the service. City shall have no
obligation or duty to establish a price for such new or additional Extra Service.
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12.03 Annual Adjustments to City Payments to Contractor and to Prices Contractor
May Charge Via Direct Bill to Customers. The costs for service as set forth in
Attachment D-1 and the prices direct -billed by Contractor to Customers set forth in
Attachment D-2 shall be adjusted as of July 1, 2022 and as of July 1 for each ensuing
year of the Term (including any extensions of the Term pursuant to Section 6.06 of the
Agreement) in accordance with Attachment J, following completion of any proceedings
required under Article XIIID, Section 6 of the California Constitution, and contingent upon
the City not receiving a majority protest against the rate increase as part of such
proceedings.
The City and Contractor recognize that an increase in costs and/or prices
established under this Agreement may be considered fees or charges for property -related
services pursuant to California Constitution Article XIIID. If a proposed cost and/or price
adjustment may not be enacted as a result of a protest pursuant to Article XIIID, Section
6, or if costs and/or prices in effect are reduced as a result of an initiative measure
authorized by Article XIII.C, Section 3, the City's inability to increase or maintain the costs
and/or prices as contemplated shall not constitute a breach of this Agreement. The
parties shall promptly meet and confer in good faith to determine how best to respond to
such an occurrence.
12.04 Disposal Charge (Tip Fee) Adjustments. If the tip fee charged at Orange County
Landfills (or at whatever City -designated Disposal Site is then in use) is changed
(increased or decreased) for whatever reason including, but not limited to, new or
increased taxes or regulatory fees, the Disposal portion of Contractor's costs shall be
adjusted according to the instructions provided in Attachment J, following completion of
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any proceedings required under Article XIIID, Section 6 of the California Constitution, and
contingent upon the City not receiving a majority protest against the cost and/or price
increase as part of such proceedings. Disposal Charges are a pass-through cost and
Contractor shall not be entitled to receive or charge any profit, markup, overhead or
administrative costs on Disposal Charges.
12.05 Adjustments to Costs Based on City -Directed Changes In Scope of Work. If
the City has directed a change in the scope of work pursuant to Section 4.11 and either
party believes that such change will increase or decrease the costs of providing service,
the party which believes Contractor's costs should be adjusted shall, within thirty (30)
calendar days after issuance of the notice of scope change, submit to the other party a
proposed adjustment with complete supporting documentation of the cost calculations
therein, and the parties shall thereafter meet and discuss the matter. City may request
additional documentation, calculations and other information from Contractor in order to
analyze information submitted by Contractor, or in order to make its own internal
calculations of the cost change. Once the parties have formulated a cost adjustment, the
City Council shall review the proposed adjustment and in the City Council's sole
discretion, make the determination as to the appropriate amount of the adjustment. Only
changes in Contractor's costs will be considered. When calculating the cost adjustment
for a City -directed change of scope, no adjustment will be made to Contractor's
compensation due to loss or reduction in any of the following: (i) Contractor's profits, (ii)
Contractor's revenues including, but not limited to, Processing Fees at a Contractor-
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owned and/or Contractor -operated Processing Facility; and (iii) revenues from the sale of
Recyclable Materials, Compost, Food Scraps, Wood, and/or Compost Products.
12.06 Contractor Invoicing and Payment. Contractor shall submit
monthly invoices to City for services provided pursuant to this Agreement. All invoices
submitted shall be accompanied by all of the following reports and information for the
preceding month, in the format shown in Attachment Y (or a similar format approved by
City): (i) a summary cover sheet listing invoiced amounts for each of the categories listed
in Attachment D-1 for the preceding month; (ii) spreadsheet showing quantities of each
type of Diverted materials, MSW, Bulky Items, transfer station "disaster tons", total
landfilled tons and the Residential Diversion percentage (as well as totals for year-to-date
of all the preceding information) of all services performed; (iii) the transfer station solid
waste processing reporting form; (iv) Newport Beach Hazardous Waste exclusion
program report (Newport Beach Load Check Report); (v) household hazardous waste
(HHW) material report; (vi) sharps report; (vii) complaint report; (viii) Newport Coast
collection area residential summary report; and (ix) monthly detail for Collection of non -
containerized materials. Submittal of the invoice shall be deemed "complete" when the
City has received the invoice with all the accompanying reports and information described
in Attachment Y. City shall pay the invoice within thirty (30) calendar days from the date
the complete invoice is received. Payment shall be deemed made when deposited in the
United States mail, first class postage pre -paid, and addressed to Contractor to the
address in Section 14.06 of this Agreement or when electronic payment of the invoice is
confirmed by City's bank or financial institution.
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12.07 Additional Residences Added During the Term.
12.07.A Neighborhoods Served by Third Party. As of the Effective Date,
there are three (3) areas of the City that contain large groups of Residences (both single
family and Multi -Family, some of which are in HOA's and/or gated communities) that are
being provided MSW and Recycling Collection services by a third -party company holding
a non-exclusive commercial franchise approved by the City. The areas of the City are
shown in the maps in Attachment Z. Attachment Z-1 contains lists of the addresses of
each individual Residence in each of the three (3) neighborhoods. In the event that (i) the
Authorized Representative of any of said three (3) areas of the City provides written notice
requesting Contractor provide MSW, Recyclable Materials and Food Scrap/Green Waste
Collection services as described in this Agreement to their community and/or HOA, and
(ii) City notifies Contractor in writing of City's approval of the addition of such area to
Contractor's service area, the procedure in Attachment Z shall be used to adjust
Contractor's monthly compensation.
Such a change shall be coordinated between City and Contractor such that
the provision of such services by Contractor shall commence on the first day of the month.
The adjustments to Contractor's compensation shall become effective the same day and
Contractor shall be entitled to include the new adjusted compensation amount in the
invoice Contractor submits to City for services rendered in that month. In such event,
Contractor shall implement the weekly MSW, Recyclable Materials and Food
Scrap/Green Waste Collection programs at all Residences within the new service area
within twenty-five (25) days of the first day of Collection service. For example, if City
approves Contractor providing Collection in the new area on the first day of the month,
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Contractor shall provide all necessary Carts (for both Recyclable Materials and Food
Scraps/Green Waste), public outreach materials, Sure Close TM kitchen Food Scrap pails,
and all other public education information to all Customers in the new service area on or
before the twenty-fifth (25th) day of the same month. Contractor shall implement all
program initiation steps described in Sections 1 and 2 of Attachment B and in Attachment
X to implement the MSW, Recyclable Materials and Food Scrap/Green Waste Collection
programs in the new service area.
In the event Contractor fails to provide all three of the basic Collection
services (weekly MSW, Recyclable Materials and Food Scrap/Green Waste Collection)
to all Residences in the new service area, or fails to provide all of the required public
education and outreach as described in Attachment B and Attachment X to all Residences
in the new service area, the adjustment to Contractor's monthly compensation made
pursuant to the process described in Attachment Z shall be pro -rated such that Contractor
is compensated only for the number of new Residences in the new Collection area that
are receiving all three (3) basic weekly Collection services.
12.07.6 Residences Constructed on Vacant Land or Lots During the
Term. Beginning with the Effective Date, the City will track, on a quarterly basis, the
number of Certificates of Occupancy issued by City for new Residences constructed on
lots or land that were vacant as of the Effective Date of this Agreement. The count of new
Residences shall include only new Residences that meet all of the following: (i) the new
Residence(s) was constructed on land or a lot that was vacant as of the Effective Date of
this Agreement; (ii) the new Residence is located within Contractor's service area shown
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on the map in Attachment Q; (iii) the City has issued a Certificate of Occupancy for the
new Residence(s); and (iv) the new Residence(s) receives Residential Cart Collection
service from the Contractor.
If at any point during the Term, the cumulative number of Certificates of Occupancy
issued by City after the Effective Date for new Residences that meet all of the above -
listed criteria exceeds forty (40) such new Residences, the methodology in Attachment Z
shall be used to adjust Contractor's compensation.
Once the count of qualifying new Residences reaches forty (40) or more, and
Contractor's compensation has been adjusted as described herein, the count returns to
zero (0) and begins again. Thereafter, Contractor's compensation shall be adjusted each
time the cumulative number of Certificates of Occupancy issued to qualifying new
Residences exceeds forty (40).
Such adjustments to Contractor's compensation shall be effective the first full
month following the completion of the adjustment calculation. [Note: Such adjustments
shall not be retroactive.] Once either Contractor or the City become aware that more than
forty (40) Certificates of Occupancy have been issued to qualifying new Residences, the
adjustment calculation shall be completed by City within thirty (30) days.
Contractor's compensation shall only be adjusted for the addition of Residences
within City during the Term as described in this Section 12.07. No compensation
adjustment shall be made for the additional of any other residences including, but not
limited to, addition of accessory dwelling units, replacement of an existing residence or
residences, remodels, addition of guest houses, or any other addition of Residences or
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addition(s) to an existing Residence(s). The parties agree that with the exception of (i)
the addition of the specific Residential areas described in Attachment Z; and (ii) new
Residences constructed on vacant land during the Term as described in Attachment Z,
the Agreement assumes a "lump sum" method of compensating Contractor for serving all
Residences in City during the Term, and therefore, Contractor's compensation shall not
be adjusted for incremental fluctuations that may occur in the number of Residences in
the service area shown in Attachment Q.
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ARTICLE 13: DEFAULT AND REMEDIES
13.01 Events of Default. Each of the following shall constitute an event of default
("Contractor Default") hereunder:
A. (i) Contractor fails to perform its obligations under Articles 4, 5, 6 or
7 of this Agreement and the failure to perform is not cured within two (2) business days
after receiving notice from the City of the breach; or (ii) Contractor fails to perform its
obligations under Articles 4, 5, 6 or 7 of this Agreement due to a labor dispute or labor
unrest (including, but not limited to, a strike, work stoppage or slowdown, sickout,
picketing, or other concerted job action) and the failure to perform is not cured within
seven (7) business days after receiving notice from the City of the breach; or (iii) in the
case of any other breach of this Agreement, the breach continues for more than fifteen
(15) calendar days after written notice from the City for the correction thereof.
B. There is a seizure or attachment of, or levy affecting possession of,
the operating equipment of Contractor, including without limitation, its vehicles,
maintenance or office facilities, of such proportion as to substantially impair Contractor's
ability to perform under this Agreement, and which is not released, bonded or otherwise
lifted within two (2) business days.
C. Contractor becomes insolvent, files a voluntary case for debt relief
under any applicable bankruptcy, insolvency, debtor relief, or other similar law now or
hereafter in effect, or consents to the appointment of, or taking of possession by, a
receiver, liquidator, assignee, trustee, custodian, sequestrator (or similar official) of
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Contractor for any part of Contractor's operating assets or any substantial part of
Contractor's operating assets or any substantial part of Contractor's property used to
provide service to City pursuant to this Agreement, or makes any general assignment for
the benefit of Contractor's creditors, or fails generally to pay Contractor's debts as they
become due or takes any action in furtherance of any of the foregoing.
D. In any involuntary case brought under any bankruptcy, insolvency,
debtor relief, or similar law now or hereafter in effect, the court having jurisdiction enters
a decree or order for relief from the Agreement, or any such court enters a decree or
order appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or
similar official) of any of the Contractor's operating equipment or assets, or orders the
winding up or liquidation of the Contractor's operations.
E. Contractor fails to timely furnish an initial bond, or fails to furnish a
replacement bond or a continuation certificate of the existing bond prior to expiration of
the performance bond, as required by Section 11.03 of the Agreement, or Contractor fails
to maintain all required insurance coverages in force at all times. The default shall occur
immediately upon such failure without any necessity for notice from City of the breach.
City shall have the right to give notice of termination under Section 13.02 immediately
upon such default. Notwithstanding any other provision of this Agreement to the contrary,
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Contractor shall not be entitled to an opportunity to cure any default comprising the failure
to maintain all required insurance and/or the required bond.
F. Contractor fails to provide reasonable assurance of performance
required under Section 14.10.
G. A representation or warranty contained in Article 2 proves to be false
or misleading in a material respect as of the date such representation or warranty was
made.
H. Contractor engages in, or is ostensibly engaging in any fraud or
deceit upon City or makes a misrepresentation regarding information provided to City
including, but not limited to, falsifying tonnage reports, reports of the results of
characterization audits, Contamination on-site audits, Customer participation data,
Contamination percentages, or provides any information that is materially misleading in
any report or documentation provided to the City.
I. Contractor fails to honor any of its indemnity obligations herein.
J. Contractor, or any of its officers, directors or employees is found
guilty of any crime related to the performance of this Agreement, or of any crime related
to anti-trust activities, illegal transport or Disposal of Hazardous Waste or toxic materials,
or bribery of public officials. The term "found guilty" shall be deemed to include any
judicial determination that Contractor or any of Contractor's officers, directors or
employees is guilty as well as any admission of guilt by Contractor or any of Contractor's
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officers, directors or employees including, but not limited to, the plea of "guilty" "nolo
contendere" "no contest" and "guilty to a lesser charge".
K. Contractor is found to have violated the Act, any Environmental Law,
or any permit, order or rule of any regulatory agency in connection with Contractor's
performance of this Agreement and such finding has become final and not subject to
further appeal.
L. Any act or omission by Contractor relative to the services to be
provided pursuant to this Agreement which violates the terms, conditions or requirements
of this Agreement, or The Act, or any law, statute, ordinance, order, directive, rule or
regulation issued pursuant to the Act. Any failure to correct or remedy any such violation
within the time set in the written notice of the violation or, if Contractor cannot reasonably
correct or remedy the breach within the time set forth in such notice or in the event
Contractor fails to commence to correct or remedy such violation within the time set forth
in such notice and fails to diligently effect such correction or remedy thereafter.
M. Contractor fails to complete or submit required reports or documents
to City as required by this Agreement.
N. Contractor fails to complete, perform or cooperate with any audit as
describe in this Agreement.
O. Contractor fails to make any payments required under this
Agreement and/or refuses to provide City, within ten (10) calendar days of the demand,
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with required information, reports and/or records in a timely manner as provided for in this
Agreement.
P. Contractor empties Carts of properly set out Recyclable Materials or
Food Scraps/Green Waste that contain less than twenty-five percent (25%)
Contamination, into a load of MSW, or transports Recyclable Materials and/or Food
Scraps/Green Waste to a Disposal site or other location at which the materials will not be
Diverted.
Q. Contractor fails to complete the annual brake inspection of each
Collection vehicle and to submit the Notice of Certification to City no later than May 1 of
each year of the Term, as described in Section 7.03.D.8.
R. The issuance of four (4) or more vehicle, driver/operator or other
citations for moving violations (including, but not limited to, exceeding the speed limit,
unsafe speed, unsafe driving, reckless driving, running a red light, and unsafe turns) that
relate in any way to operations performed pursuant to this Agreement within a twelve (12)
month period.
S. Failure of Contractor to adhere to, perform, implement and complete
all parts of the Implementation Plan described in Section 4.03 and in Attachment C.
13.02 Right to Suspend or Terminate Upon Default.
A. Upon any Contractor Default, City shall have the right to suspend or
terminate this Agreement, in whole or in part. Such suspension or termination shall be
effective thirty (30) days after City has given notice of suspension or termination to
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Contractor, except that such notice may be effective immediately if the Contractor default
is one which endangers the health, welfare or safety of the public. Notice may be given
orally in person or by telephone to the representative of Contractor designed in or under
Section 14.06 (or if he/she is unavailable, to a responsible employee of Contractor) and
shall be effective immediately. Written confirmation of such oral notice of suspension or
termination shall be sent by personal delivery, electronic mail, facsimile, or other
expedited means of delivery to Contractor within twenty-four (24) hours of the oral
notification. Contractor shall continue to perform the portion of the Agreement not
suspended, in full conformity with its terms.
B. In the event of non-performance by Contractor due to a Force
Majeure event, the provisions of Section 14.12 shall apply.
13.03 Specific Performance. By virtue of the nature of this Agreement, the urgency of
timely, continuous and high-quality service, the lead time required to effect alternative
service, and the rights granted by City to Contractor, the remedy of damages for a breach
hereof by Contractor is inadequate, and the City shall be entitled to injunctive relief to
require Contractor to perform its obligations herein.
13.04 Use of Contractor Property Upon Default. In the event that Contractor fails to
perform any of its obligations under Articles 4, 5, 6 or 7 and fails to cure the default within
forty-eight (48) hours after written notice from City, City shall have the right to use, and
Contractor shall transfer possession of, any of Contractor's land, equipment, vehicles,
facilities and other property reasonably necessary for the provision of services hereunder
and for the billing and collection of payments from Customers for Extra Services provided
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pursuant to this Agreement. Such transfer shall include the necessary keys, codes, and
other devices and equipment required to operate Contractor's vehicles, equipment,
facilities and other property. The City shall have the right to continue use of such property
until other suitable arrangements can be made for the provision of such services, which
may include the award of a contract to another service provider.
13.05 Right to Perform. If this Agreement is suspended and/or terminated due to a
Contractor Default, City shall have the right to perform and complete, by contract or
otherwise, the work herein or such part thereof as it may deem necessary and to procure
labor, equipment, and materials and incur all other expenses necessary for completion of
the work and services provided for herein. If such expenses exceed the amounts which
would have been payable to Contractor under this Agreement if it had been fully
performed by Contractor, then Contractor shall pay the excess amount(s) to City.
13.06 Payment for Use of Contractor's Property. If the City invokes its rights to use
Contractor's equipment, facilities, and other property pursuant to Section 13.04, and such
use continues after the period of time for which Contractor has already been
compensated, less liquidated damages and the City's reasonable expenses, Contractor
shall be entitled to the reasonable rental value of such property (established by averaging
a minimum of two (2) industry rental rates for such vehicles and equipment) which shall
be offset against the damages due to the City as a result of Contractor's Default.
Contractor agrees that it will fully cooperate with the City in the use of Contractor's
property. The City may immediately engage all or any personnel necessary for the
provision of services, including, if the City so desires, employees previously employed by
Contractor. Contractor further agrees, if the City so requests, to assist the City in securing
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the services of any or all management or office personnel employed by Contractor whose
skills are reasonably necessary for the continuation of services. The City agrees that it
assumes complete responsibility for the proper, normal use of such equipment and
facilities while in its possession. Contractor agrees that the City's exercise of its rights
under this section: (i) does not constitute a taking of private property for which
compensation must be paid; (ii) will not create any liability on the part of the City to
Contractor other than the payment of reasonable rental value as provided for in this
subsection; and (iii) does not exempt Contractor from the indemnity provisions of Article
11 which are meant to extend to circumstances arising under this Article 13.
13.07 Damages. Contractor shall be liable to City for all direct, indirect, incidental, special
and/or consequential damages arising out of Contractor's Default. This section is
intended to be declarative of existing California law. The City may offset such damages
against sums which would otherwise be due to Contractor.
13.08 City's Remedies Cumulative. City's rights to (i) suspend or terminate the
Agreement under Section 13.02, (ii) to obtain specific performance under Section 13.03,
(iii) use of Contractor's property under Section 13.04 and (iv) right to perform under
Section 13.05 are not exclusive, and City's exercise of one such right shall not constitute
an election of remedies. Instead, they shall be in addition to any and all other legal and
equitable rights and remedies that the City may have, including a legal action for
damages, including all direct, indirect, incidental, consequential and/or special damages
under Section 13.07.
13.09 Liquidated Damages. City and Contractor acknowledge that consistent, timely,
courteous and efficient Collection of MSW, Recyclable Materials and Food Scraps/Green
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Waste, is of utmost importance and City has considered and relied on Contractor's
representations as to its quality of service commitment in entering into this Agreement.
City and Contractor further recognize that quantified standards of performance are
necessary and appropriate to ensure consistent and reliable service. City and Contractor
further recognize that if Contractor fails to achieve the performance standards, City and
its residents will suffer damages and that it is and will be impracticable and extremely
difficult to ascertain and determine the exact amount of damages that City will suffer.
Therefore, City and Contractor agree that the following liquidated damage amounts
represent a reasonable estimate of the amount of such damages considering all of the
circumstances existing on the date of this Agreement, including the relationship of the
sums to the range of harm to City that reasonably could be anticipated and anticipation
that proof of actual damages would be costly or inconvenient. In placing their initials at
the places provided, both City and Contractor specifically confirm the accuracy of the
statements made above and the fact that each party had ample opportunity to consult
with legal counsel and obtain an explanation of this liquidated damage provision at the
time that this Agreement was made.
Contractor Initial Here: City Initial Here:
Contractor agrees to pay to City (as liquidated damages and not as a penalty) the
amount set forth below, all of which shall be adjusted upward annually using the
procedure and calculations set forth in Section 12.03 and Attachment J:
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A. Collection Reliability
1
For each failure to commence service to a new Customer
$150.00
account within seven calendar (7) days after order, for basic
level of service including MSW, Recyclable Materials, and co -
collected Food Scraps/Green Waste in excess of five (5) such
failures annually on or after April 30, 2022.
2
For each failure to collect a Container containing MSW,
$100.00
Recyclable Materials, Food Scraps/Green Waste from a
Residential Premises which has been properly set out for
Collection, from an established Customer, on the scheduled
Collection day, including regular and Saturday service, in
excess of two -hundred fifty (250) such failures annually.
3
For each failure to collect MSW, Recyclable Materials, Food
$150.00
Scraps/Green Waste which has been properly set out for
Collection, from the same Customer on two (2) consecutive
scheduled Collection days.
4
For each instance of collecting MSW, Recyclable Materials, or
$150.00
Food Scraps/Green Waste outside of Collection hours
described in Section 4.07
5
Failure to deliver and start service on Food Scrap/Green
$5.00 per home
Waste Cart at all Residences in the Service Area in
Attachment Q by April 30, 2022 (unless Customer has twice
refused a Cart and Contractor has submitted to City
documentation as to date, address and person at CR&R that
tried to deliver the Cart and descriptions of why Customer
refused Cart).
B. Collection Quality
1
For each occurrence of damage to private property
$250.00
which is not corrected to the satisfaction of the
property owner within thirty (30) days of the damage
and which exceed five (5) such occurrences annually
2
For each failure to properly return any empty Residential Cart in
$50.00/occurrence
a location at curb or in alley to avoid pedestrian or vehicular
traffic impediments or to place the Cart in an upright position, in
excess of twenty (20) such occurrences annually
3
For each occurrence of discourteous behavior to a Customer:
$250.00
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4
For each occurrence of excessive noise as defined in Section
$500.00
4.08.B.
5
For each failure to clean up MSW, Recyclable Materials, Food
$150.00
Scraps/Green Waste spilled from Carts, within the prescribed
timeframe in Section 4.09.A, in excess of five (5) such failures
annually:
6
For each failure to conform to the requirements of Sections
$150.00
7.03.D.2, Cleaning; 7.03.D.3, Painting; 7.03.D.4, Maintenance;
7.03.D.8, Brake Inspections; 7.03.E, Operation; 7.04.E,
Cleaning, Painting and 7.05.C, Uniforms, which exceed in any
or a combination of categories above five (5) such occurrences
annually
7
Comingling of Solid Waste with Recyclable Materials and/or
$1,000 per incident
Green Waste/Food Scraps in Collection Vehicles except as
provided in the event of Contamination (when Contaminated
material may be placed in truck with MSW) [Note: Single pass
trucks Collect two (2) different types of materials but each
material must be kept separated within the body of the vehicle.
Failure to keep the materials separated shall constitute a failure
incident.]
8
Disposal of Recyclable Materials, Food Scraps and/or Green
$1,000 per incident
Waste in a Disposal Facility except as provided in this
Agreement
9
For each Ton of Green Waste used as Alternative Daily Cover
$150 per ton
10
For each failure to provide the City with 10,000 tons per year of
$95 per ton of
guaranteed capacity for processing Recyclable Materials and
processing capacity
Single Material Recyclables at the Clean MRF described in
not provided
Attachment O.
C. Responsiveness to Customer
1
For each failure to initially respond to a Customer complaint
$100.00
within eight (8) working hours:
2
For each failure to conform to the litter abatement requirements
$250.00
of Section 4.09.
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3
Failure of Contractor to maintain an average hold time of ninety
$500 per month that
(90) seconds or less as required by Section 8.04C.
90 -second average
hold time is
exceeded
4
Failure or neglect to resolve a Customer complaint relating to
$100.00 per incident
missed Collection within the time set forth in Section 8.05.
per Customer
5
Failure to notify Customers of changes in route days as required
$500.00 per
in Attachment B, Section 1.3.2.
occurrence
6
Failure to resolve customer complaint to satisfaction of City
$500.00
within 5 business days
7
Failure to resolve customer complaint such that the Customer
$100 per customer
calls City to resolve issue.
call in excess of 5
calls per month
8
For each failure to repair or replace a missing or damaged Cart
$50 per day
within 2 business days of request from City or Customer
9
For each failure to remove graffiti from Carts, or to replace with
$50 per day
Carts bearing no graffiti, within 2 business days of request from
City or Customer
D. Timeliness of Submissions to City
1
Any report required to be submitted to City by Contractor pursuant to this Agreement
shall be considered late until such time as a correct and complete report is received by
City. Monthly, quarterly and annual reports must contain all information required in
Attachment K. All other required reports must contain the information specified in this
Agreement. For each business day (excluding weekends and the holidays listed in
Section 4.07A of the Agreement) a report is late, the daily liquidated damage amount
shall be:
1. Monthly report
$100.00 per day
2. Quarterly report
$250.00 per day
3. Annual report
$500.00 per day
4. All other reports
$100.00 per day
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2
Failure to provide records requested by City within 30 days of
$250 per day until
City request
completed
3
Failure of Contractor to provide requested access to on -board
$100.00 per day
GPS data or video camera footage within five (5) business
days of City request. In the event of a crash/injury/fatality,
failure to provide access to on -board GPS data or video
camera footage to law enforcement within the timeframe
requested by police, sheriff, public safety or other law
enforcement.
E. Accuracy of Billing
1
Each Customer billing for Extra Services in Attachment D-2
$250.00
that is not prepared in accordance with list of prices in
Attachment D-2:
F. Personnel
1
Each day after the Effective Date City does not receive
$500.00/Coordinator
services of two (2) Recycling Coordinators (excluding
per day
Coordinators' holiday, vacation and sick leave days) for the
initial 18 months and the services of one (1) coordinator
thereafter including any day that City determines that either of
the Recycling Coordinators is performing work for any entity
that is unrelated to the duties of the Coordinator described
herein [See Agreement Section 7.05H regarding training
period for replacement Coordinator(s)]
2
Failure to designate qualified Contractor Representative on or
Fifty dollars ($50)
before January 15, 2022.
per business day
until completed
3
Failure of Contractor Representative to timely respond to City
Fifty dollars ($50)
within 24 hours of a written, email, or telephone request.
per business day
until response is
received
G. Vehicles and Equipment
1
Each day Contractor fails to have in service Alternative Fuel
$500.00/vehicle
Vehicles as required by Article 7.
2
Failure to label Carts with labels, hot stamp, and/or decals as
Fifty dollars ($50)
described in Attachment B Sections 1 and 2; and/or failure to
per cart or vehicle
provide SB 1383 color -coded Carts and lids as required in
per business day
Attachment B, Sections 1 and 2.
until corrected
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3
Failure to provide all trucks and other vehicles listed in
One hundred dollars
Attachment F (including all required on -board equipment,
($100) per vehicle
electronics and technology listed in Agreement Section 7.03H)
not placed in service
on or before January 15, 2022.
per business day
until completed.
One hundred
Dollars ($100) per
vehicle per business
day without the
required technology
until it is supplied.
4
Failure to install collision avoidance system on any vehicles
$250.00 per vehicle
operating in the City per Section 7.03.G by January 15, 2022.
per day
5
Failure to distribute a kitchen pail to a Customer that has
$25 per household
requested one (either as part of the initial distribution or a
requested second pail or replacement ail
H. Compliance Reporting and Audits
1
Each day, after the due date on City invoice, Contractor fails to
$250.00/day
reimburse City for audit as described in Section 9.05B
2
Failure to distribute public education materials to all
$5,000/per route
Residences on route within the timeframe specified in
Attachment N, Section 1 after finding a twenty-five percent
(25%) or higher Contamination rate for that route during waste
characterization studies. If the failure continues after the initial
assessment of liquidated damages, the liquidated damages
are re -assessed for each additional thirty (30) day period the
failure continues.
3
Failure to tag and photo -document instances of Contamination
$250/instance of
encountered during Cart Contamination audits described in
failure to tag/photo-
Section 2 of Attachment N
document
Contamination
4
Failure to perform required number of waste characterizations
$5,000 per missed
per year as described in Attachment N. [Two (2)
characterization
characterizations per year for each stream: MSW, Recyclable
Materials and Food Scraps/Green Waste for total of six (6)
characterizations per year.]
5
Failure to perform required number of Cart Contamination
$5,000 per missed
audits per year as described in Attachment N [Four (4) audits
audit
per year for each stream: MSW, Recyclable Materials and
Food Scraps/Green Waste for total of 12 audits per year].
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6
Failure to perform Cart Contamination audits at required
$50 per household
number (3%) of Residences for each quarterly audit as
below the 3%
described in Attachment N.
requirement in any
audit
7
Failure to submit reports on characterizations and
$100/report for each
Contamination audits within required timeframe in Attachment
day the report is late
N.
8
Failure to notify City of date(s) and time(s) for characterizations
$250 per day that is
and Contamination audits at least 30 days prior to the
less than 30 days
characterization or audit.
I. Cooperation with Service Provider Transition
1
For each day routing information requested by City in
$1,000 per day
accordance with Section 14.13 is received after City
established due dates, both for preparation of a request for
proposals and for new service providers implementation of
service.
2
For each day delivery of keys, access codes, remote controls,
$1,000 per day
or other means of access to Customer carts is delayed beyond
1 day prior to new service provider servicing Customers
requiring special access, as described in Section 14.13
3
For delay in not meeting the requirements contained in Section
$25,000
14.13 in a timely manner, in addition to the daily liquidated
damages in Subpart I ("Cooperation with Service Provider
Transition"), numbers 1 and 2.
J. Public Education and Outreach
1
For each failure to provide the follow-up outreach materials
$2 for each
required after the initial six-month start-up of the Food
household that did
Scrap/Green Waste Collection as described in Section 2 of
not receive the
Attachment B by August 1, 2022.
brochure
2
For each failure to provide a resident with an introductory
$2 for each
toolkit with the new kitchen pail and Food Scrap/Green Waste
household that did
Cart as described in Section 2 of Attachment B by April 30,
not receive the
2022.
toolkit
3
Failure to produce the educational video as described in
$10,000
Section 4 of Attachment B by February 4, 2022.
4
Failure to produce the social media content for distribution via
$10,000
the City social media channels as described in in Section 4 of
Attachment B by March 31, 2022.
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5
For each failure to provide the annual residential outreach
$2 for each
materials as described in Section 2 of Attachment B by
household that did
January 15, 2023 and by January 1 of each year thereafter.
not receive the
outreach materials
6
For each failure to prepare and distribute two mailings each
$2 for each
calendar year updating customers on holiday collection
household that did
schedules and special collection services (HHW, bulky item,
not receive the
etc.) and instructing customers on proper HHW handling as
outreach materials
described in Section 4 of Attachment B by December 1 and by
May 1 of each year.
7
For each failure to provide City with copies of Contractor's
$5,000
quarterly Orange County newsletter supporting Diversion
activities, for inclusion in City billings/mailings.
City may determine the occurrence of events giving rise to liquidated
damages through the observation of its own employees, agents or representatives;
through photo -documentation, audio recordings and other records created by Contractor;
and/or through information, audio recordings, and photo -documentation provided by
Residents, other Persons and/or Customers or through City's investigation of Customer
complaints.
Prior to assessing liquidated damages, City shall give Contractor notice of
its intention to do so. The notice will include a brief description of the incident(s)/non-
performance. Contractor may review (and make copies at its own expense) all non -
confidential information in the possession of the City relating to incident(s)/non-
performance. Contractor may, within ten (10) days after receiving the notice, request a
meeting with the City Manager or his or her designee. Contractor may present evidence
in writing and through testimony of its employees and others relevant to the
incident(s)/non-performance. The City Manager or his or her designee will provide
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Contractor with a written explanation of his or her determination on each incident(s)/non-
performance prior to authorizing the assessment of liquidated damages. The decision of
the City Manager or his or her designee shall be final.
B. Amount. The City may assess liquidated damages for each
calendar day or event, as appropriate, that Contractor is determined to be liable in
accordance with this Agreement.
C. Payment. City shall deduct the amount of liquidated damages due
to the City from City's monthly payments to the Contractor for services rendered pursuant
to this Agreement.
City's right to recover liquidated damages for Contractor's failure to meet the
service performance standards shall not preclude City from obtaining equitable relief for
persistent failures to meet such standards nor from terminating the Agreement for such
persistent failures.
13.10 City Default. City shall be in default under this Agreement ("City Default") in the
event City fails to make payments to Contractor in the amounts and timeframes specified
in Article 12 and fails to cure such breach within thirty (30) days after receiving notice
from the Contractor of the breach, provided that if the circumstances causing the breach
are such that it will reasonably require more than thirty (30) days to cure, City shall not be
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in default so long as City promptly commences the cure and diligently proceeds to
completion of the cure.
In the event of a City Default Contractor shall continue to perform all of its
obligations hereunder until a court of competent jurisdiction has issued a final judgment
declaring that there is a City Default.
13.11 Notice to City of Any Potential Labor Strike or Stoppage. Immediately
upon learning of any potential, threatened or impending labor strike, sickout, work
stoppage or shortage of Collection drivers or other necessary employees due to any
cause, Contractor shall notify City within four (4) hours in writing and by telephone and
electronic mail. In the event Contractor learns of such potential labor strike, stoppage or
shortage on a non -business day, Contractor shall telephone and text the City's Contract
Administrator and confirm with the Administrator that the message was received.
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ARTICLE 14: OTHER AGREEMENTS OF THE PARTIES
14.01 Permits, Licenses, Compliance with Law, Non -Discrimination. In providing the
services required under this Agreement, Contractor shall at all times comply with all
applicable laws of the United States, the State of California and City, with all applicable
rules and regulations promulgated by federal, state, regional or local administrative and
regulatory agencies, now in force and as they may be enacted, issued or amended during
the Term and with all permits affecting the services to be provided. Contractor shall obtain
and maintain in full force and effect during the Term, at Contractor's sole cost and
expense, all licenses, permits, qualifications and approvals legally required for Contractor
to provide all the services described in this Agreement. Contractor shall maintain a City
of Newport Beach business license during the Term of this Agreement. Contractor shall
not discriminate nor permit discrimination against any Person in a manner prohibited by
federal, state or local law.
14.02 Assignment. Contractor acknowledges that this Agreement involves rendering a
vital service to the City's residents, and that the City has selected Contractor to perform
the services specified herein based on: (i) Contractor's experience, skill and reputation
for conducting their operations in a safe, effective and responsible fashion, and (ii)
Contractor's financial resources to maintain the required equipment and services and to
support its indemnity obligations to the City under this Agreement. The City has relied on
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each of these factors, among others, in contracting with Contractor to perform the
services to be rendered by Contractor under this Agreement.
14.02.A City Consent Required. Contractor shall not assign its rights or delegate
or otherwise transfer its obligations under this Agreement to any other Person (including
an Affiliate) without the prior written consent of City. Any such assignment made without
the consent of City shall be void and the attempted assignment shall constitute a
Contractor Default. The decision of the City as to whether or not to agree to any
assignment shall be final.
14.02.6 Assignment Defined. For the purpose of this section, "assignment" shall
include, but not be limited to: (i) a sale, exchange or other transfer to a third party of
substantially all of Contractor's assets dedicated to service under this Agreement; (ii) a
sale, exchange or other transfer of outstanding common stock of Contractor, to a third
party which results in a change of control of Contractor; (iii) any dissolution,
reorganization, consolidation, merger, re -capitalization, stock issuance or reissuance,
voting trust, pooling agreement, escrow arrangement, liquidation or other transaction
which results in a change of ownership or control of Contractor; (iv) any assignment by
operation of law, including insolvency or bankruptcy, an assignment for the benefit of
creditors, a writ of attachment for an execution being levied against this Agreement,
appointment of a receiver taking possession of Contractor's property, or transfer occurring
in the event of a probate proceeding; and (v) any combination of the foregoing (whether
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or not in related or contemporaneous transactions) which has the effect of any such
transfer or change of ownership, or change of control of Contractor.
14.02.0 Consent Requirements. If Contractor requests City's consideration of,
and consent to, an assignment, City may deny or approve such request in its complete
discretion. No request by Contractor for consent to an assignment need be considered
by City unless and until Contractor has met the following requirements:
1. Contractor shall undertake to pay City its reasonable
expenses for consultants, attorneys' fees and investigation costs necessary to investigate
the suitability of any proposed assignee, and to review and finalize any documentation
required as a condition for approving any such assignment;
2. Contractor and the proposed assignee shall furnish City with
audited financial statements of all of the proposed assignee's operations for the
immediately preceding three (3) operating years;
3. Contractor shall furnish City with satisfactory proof: (i) that the
proposed assignee has at least ten (10) years of solid waste/recycling Collection and
management experience on a scale equal to or exceeding the scale of operations
conducted by Contractor; (ii) that in the last five (5) years, the proposed assignee has not
been the subject of any administrative or judicial proceedings initiated by a federal, state
or local agency having jurisdiction over its operations due to an alleged failure to comply
with federal, state or local laws or that the proposed assignee has provided City with a
complete list of such proceedings and their status; (iii) that the proposed assignee
conducts its operations in a safe and environmentally conscientious manner, in
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accordance with sound solid waste and Recycling management practices in full
compliance with all federal, state and local laws regulating the Collection and Disposal of
MSW, Recyclable Materials, Food Scraps/Green Waste and all Environmental Laws; (iv)
any other information required by City to ensure the proposed assignee can fulfill the
terms of this Agreement in a timely, safe and effective manner.
14.03 Subcontracting. Contractor shall not engage any subcontractors to perform any
of the services required of it by this Agreement without the prior written consent of City.
Contractor shall notify the City no later than ninety (90) days prior to the date on which it
proposes to enter into a subcontract. City may approve or deny any such request in its
sole discretion.
Contractor may, in cases of emergency, engage subcontractors for up to seven (7)
consecutive calendar days. Contractor shall give prompt notice to City of any such
emergency subcontracting and any such engagement must be approved by City in writing
if it is to extend beyond seven (7) calendar days, or if Contractor wishes to renew it after
an interval of less than thirty (30) calendar days.
14.04 No Affiliated Entity. Contractor will not form or use any Affiliated Entity to perform
any of the services or activities which Contractor is required or allowed to perform under
this Agreement, other than as a subcontractor approved by City under Agreement Section
14.03.
14.05 Contractor's Investigation. Contractor has provided Residential Collection
services to City for over ten (10) years and in addition, Contractor has made an
independent investigation, satisfactory to it, of the conditions and circumstances
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surrounding the Agreement and the work to be performed by it, and the Recycling, Source
Reduction and other Diversion programs now in effect in the City.
14.06 Notice. All notices, demands, requests, proposals, approvals, consents and other
communications which this Agreement requires, authorizes or contemplates shall, except
as provided in Section 13.02, be in writing and shall either be personally delivered to a
representative of the parties at the address below or be deposited in the United States
mail, first class postage prepaid (certified mail, return receipt requested), addressed as
follows:
If to City: Public Works Director
City of Newport Beach
100 Civic Center Drive
Newport Beach, California 92660
with a copy to the Newport Beach City Attorney at the
same address
If to Contractor: Chip Monaco
Regional Vice President
CR&R Incorporated
11292 Western Avenue
Stanton, California 90680
14.07 Representatives of the Parties.
14.07.A Representatives of City. This Agreement will be administered by the
Public Works Department of City. The Deputy Director of Public Works, or his/her
designee, shall be the Project Administrator and shall the authority to act for City under
this Agreement. The Project Administrator or his/her authorized representative shall
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represent the City in all matters pertaining to the services to be rendered pursuant to this
Agreement.
14.07.113 Representatives of Contractor. Contractor shall, by the Effective Date,
designate in writing a responsible officer who shall serve as the representative of
Contractor (Contract Liaison) in all matters related to the Agreement and shall inform City
in writing of such designation and of any limitations upon his or her authority to bind
Contractor. City may rely upon action taken by such designated representative as actions
of Contractor unless they are outside the scope of the authority delegated to him/her by
Contractor as communicated to City.
14.08 Right to Inspect Contractor Operations. City shall have the right, but not the
obligation, to observe and inspect all of the Contractor's operations under this Agreement.
In addition, upon reasonable notice and without interference with Contractor's operations,
City may review and copy any of Contractor's operational and business records related
to this Agreement. If City so requests, Contractor shall make specified personnel
available to accompany City employees on inspections and shall provide electronic
copies of records stored in electronic media.
14.09 Maintenance and Review of Records, Submission of Reports. Contractor shall
compile, on a daily basis, accurate records of its operations in sufficient detail to allow for
accurate determinations of all matters that require periodic determination under this
Agreement. City shall have the right during regular business hours to review and make
copies of (at City's expense) any documents relevant to this Agreement, including, but
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not limited to, Contractor's billing and Collection records, tonnage reports, route lists,
maps and records maintained in electronic, magnetic and other media.
Contractor shall prepare and submit complete, accurate and timely reports on
forms provided or approved by City as described in Attachment K.
14.10 Right to Demand Assurances of Performance. If Contractor: (i) persistently
suffers the imposition of liquidated damages under Section 13.09; (ii) is the subject of any
labor unrest including work stoppage or slowdown, sickout, picketing or other concerted
job action; (iii) appears in the reasonable judgment of City to be unable to regularly pay
its bills as they become due; or (iv) is the subject of a civil or criminal proceeding brought
by a federal, state, regional or local agency for violation of an Environmental Law, City
may, at its option and in addition to all other remedies it may have, demand from
Contractor reasonable assurances of timely and proper performance of this Agreement,
in such form and substance as the City may require.
14.11 Designation as City's Recycling Agent. Pursuant to Public Resources Code
Section 40105 and California Code of Regulations Title 14, Division 2, Chapter 5,
Subchapter 8, City designates Contractor as City's "Authorized Recycling Agent" for
purposes of receiving payments for Contractor -Collected Recyclable Materials including
but not limited to California Redemption Value payments.
14.12 Force Majeure. Neither party shall be in default of its obligations under this
Agreement in the event, and for so long as, it is impossible or extremely impracticable for
it to perform its obligations due to an "act of God" (including, but not limited to, flood,
earthquake or other catastrophic events), war, insurrection, riot, or other similar cause not
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the fault of, and beyond the reasonable control of, the party claiming excuse (each, a
"Force Majeure event"). The following are not force majeure events: labor unrest,
epidemics, picketing, strikes, work stoppage or slowdown, sickouts or other concerted job
actions. A party claiming excuse under this section must (1) have taken reasonable
precautions, if possible, to avoid being affected by the cause, and (2) notify the other party
in writing within five (5) calendar days after the occurrence of the event specifying the
nature of the event, the expected length of time that the party expects to be prevented
from performing, and the steps which the party intends to take to restore its ability to
perform. The party claiming excuse under this section shall use its best efforts to remedy
its inability to perform as quickly as possible.
14.12.A Force Majeure. Neither Contractor nor the City shall be excused from
the performance of its obligations under this Agreement except where a party's failure to
perform is due to a Force Majeure event, as defined in this Agreement.
14.12.6 Obligation to Restore Ability to Perform and Notifications. Any
suspension of performance by a party pursuant to this section shall be only to the extent,
and for a period of no longer duration than, required by the nature of the event, and the
party claiming excuse from obligation shall use its best efforts in an expeditious manner
to remedy its inability to perform, and mitigate damages that may occur as result of the
event.
Throughout the period of service disruption, Contractor shall (i) provide City
with a minimum of daily service updates; and (ii) notify Customers on a real-time basis as
to alternative Collection procedures and timeframes for the disruption. At a minimum,
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Contractor shall update its website and shall utilize all available social media channels,
the newspaper, and a "reverse 411" contact method to reach all Customers (utilizing
telephone data as available from City's databases). Should other enhanced contact
technologies become available during the Term, Contractor shall use such methods upon
prior written approval from City.
14.12.0 Notice. The party claiming excuse shall deliver to the other party a written
notice of intent to claim excuse from performance under this Agreement by reason of a
Force Majeure event. Notice required by this section shall be given promptly in light of
the circumstances, but in any event not later than five (5) calendar days after the
occurrence of the Force Majeure event. Such notice shall describe in detail the claimed
Force Majeure event, the services impacted by the claimed Force Majeure event, the
expected length of time that the party expects to be prevented from performing, the steps
which the party intends to take to restore its ability to perform, and such other information
as the other party reasonably requests.
14.12.11) City's Rights in the Event of Force Majeure. The partial or complete
interruption or discontinuance of Contractor's services caused by a Force Majeure event
shall not constitute an event of default under this Agreement. Notwithstanding the
foregoing: (1) the City shall have the right to make use of Contractor's facilities and
equipment in accordance with Sections 13.04 and 13.06 of this Agreement in the event
Contractor is unable to Collect and Dispose of MSW and Food Scraps as required herein
for a period of three (3) or more consecutive days or for any three (3) days in a seven (7)
calendar -day period, and such non-performance is excused by a Force Majeure event;
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(2) if Contractor's excuse from performance for reason of Force Majeure continues for a
period of thirty (30) calendar days or more, the City shall have the right, in its sole
discretion, to immediately terminate this Agreement; and (3) if Contractor's inability to
Collect and Dispose of MSW and Food Scraps/Green Waste continues for fourteen (14)
days or more from the date by which Contractor gave or should have given notice under
Subsection C above, the City shall have the right in its sole discretion to immediately
terminate this Agreement.
14.13 Cooperation During Transition. At the expiration or earlier termination of the
Term, Contractor shall cooperate fully with the City to ensure an orderly transition to any
and all new service providers. In addition, during the last fifteen (15) months of the Term,
Contractor shall allow prospective operators to observe its operations and shall make
available to City all records and reports required to be submitted by this Agreement for
use in the transition including, but to limited to, complete route lists and maps, Customer
account lists including Customer name, address, type and frequency of service, billing
information, and number, type and location of all Containers deployed by Contractor
within City. Such information and observation shall be provided and allowed regardless
of the method(s) utilized by City to procure a new or different operator including, but not
limited to, a request for proposals process, bid process, negotiation or any other process.
Failure of Contractor to cooperate with City following termination shall be conclusively
presumed to be grounds for specific performance of this covenant and/or other equitable
relief necessary to enforce this covenant.
Contractor shall provide any new service provider with all keys, security codes and
remote controls, if any, needed to access gated communities and other Collection
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locations. Contractor shall be responsible for coordinating transfer immediately after
Contractor's final pickups, so as not to disrupt service to any Customer. Contractor shall
provide City with detailed route lists, maps and lists including Customer names,
addresses and service levels, including number and types of each Cart at the Customer
address and a list of all Extra Services (if any) subscribed to by each Customer, a
minimum of ninety (90) calendar days prior to the transition, or within thirty (30) calendar
days of City request whichever is sooner. Contractor shall provide a final list of changes
to the Customer lists, route maps and level of services for each Customer, the day before
the transition. Contractor shall, in addition to cooperating fully with observation of routes
and other operations by any new service provider, provide means of access to the new
service provider at least one (1) full business day prior to the first day of Collection by the
new service provider, and always within sufficient time so as not to impede, in any way,
the new service provider from easily servicing all Customers.
If requested by City, Contractor shall remove all Carts owned by Contractor from
the City at the end of service. In such event, Contractor shall work cooperatively with the
new service provider to coordinate removal of Contractor's Carts with the distribution of
the new service provider's Carts.
14.14 No Damages for Invalidation of Agreement. If a final judgment of a court of
competent jurisdiction determines that this Agreement, or any portion thereof, is illegal or
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was unlawfully entered into by the City, neither party shall have any claim against the
other for damages of any kind (including but not limited to loss of profits) on any theory.
14.15 Diversion Programs Not Restricted. Nothing in this Agreement shall restrict
City's participation or non -participation, or the nature or extent of its participation in, any
Recycling and Diversion program, developed or operated by City, other agencies, or by
one or more Residents or other Persons within City or other jurisdictions.
14.16 Reports as Public Records. The reports, records and other information submitted
(or required to be submitted) by Contractor to City are public records within the meaning
of that term in the California Public Records Act, Government Code Section 6250 et seq.
Unless a particular record is exempted from disclosure by the California Public Records
Act, it must be disclosed to the public by the City upon request.
14.17 Cooperation. Contractor agrees to work closely and cooperate fully with City and
any other agencies that may have jurisdiction or interest in the work to be performed
pursuant to this Agreement. City agrees to cooperate with Contractor concerning the work
to be performed pursuant to this Agreement.
14.18 City Policy. Contractor shall discuss and review all matters relating to policy and
direction with City in advance of all critical decision points in order to ensure that all
decisions about the services to be provided pursuant to this Agreement proceed in a
manner consistent with City goals and policies.
14.19 City's Transfer Station. Prior to the Effective Date, Contractor shall enter into the
operating agreement with the City to operate the City's transfer station. The Transfer
Station Operating Agreement is included as Attachment W.
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14.20 Compliance With Immigration Laws. Contractor shall be aware of and comply
with all local, state and federal laws which may apply to the performance of this
Agreement. Contractor warrants and represents that all of its employees, including any
and all prospective employees hired to perform services for the City pursuant to this
Agreement and the employee of any City -approved subcontractor retained by Contractor
to perform a portion of the services pursuant to this Agreement, are and will be authorized
to perform the services contemplated by this Agreement in full compliance with all
applicable local, state and federal laws, rules and regulations, including, but not limited
to, the Immigration Nationality Act of 1952 (commencing with Section 11.01 of Title 8 of
the United States Code), as amended. Contractor agrees to verify the legal status of all
of its employees and provide documentation of such verification whenever requested by
the City. In the event Contractor discovers that any employee it has retained is not in
compliance with all immigration laws, Contractor agrees to take appropriate action in
compliance with all applicable laws.
City reserves the right to perform a security and identification check through the City's
Police Department on Contractor and on all present and future employees employed by
Contractor to work in City, in accordance with accepted procedures established by City,
or for probable cause.
14.21 Time of Performance. Time is of the essence in the performance of services
under this Agreement and Contractor shall perform all services and requirements in the
Agreement in accordance with the described timeframes and schedules including but not
limited to, the schedule in the Implementation Plan in Attachment C, the schedule for
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public education in Attachment X, all reporting listed in Attachment K, all characterizations
and on-site field audits described in Attachment N, and all due dates and deadlines
contained throughout the Agreement. The failure of Contractor to strictly adhere to the
required schedules and due dates may result in termination of this Agreement by City.
14.22 Conflicts of Interest. Contractor or its employees may be subject to the
provisions of the California Political Reform Act of 1974 ("CPRA"), which (i) requires such
Persons to disclose any financial interest that may foreseeably be materially affected by
the work performed pursuant to this Agreement, and (ii) prohibits such Persons from
making, or participating in making, decisions that will foreseeably financially affect such
interest. If subject to the CPRA, Contractor shall conform to all requirements of the CPRA.
Failure to do so constitutes a material breach of this Agreement and is grounds for
immediate termination of the Agreement by City . Contractor shall indemnify and hold
harmless City for any and all claims for damages resulting from Contractor's violation of
this Section 14.22.
14.23 Final Resolution of Customer Complaints Concerning Contractor. Disputes
between Contractor and Customers regarding the services provided in accordance with
this Agreement that cannot be resolved between Contractor and Customer (by
Contractor's City Liaison, Recycling Coordinators and/or other employees of Contractor)
may be resolved by the City's Project Administrator whose decision shall be final and
binding.
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Intervention by City is not a condition precedent to any rights or remedies third
parties might otherwise have in any dispute with Contractor. Nothing in this section is
intended to affect the remedies of third parties against Contractor.
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ARTICLE 15: MISCELLANEOUS PROVISIONS
15.01 Governing Law. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of California.
15.02 Jurisdiction. Any lawsuits between the parties arising out of this Agreement shall
be brought and concluded in the courts of the State of California, which shall have
exclusive jurisdiction over such lawsuits. With respect to venue, the parties agree that
this Agreement is made in and will be performed in Orange County and the exclusive
venue is the Superior Court located in Orange County.
15.03 Binding on Successors. The provisions of this Agreement shall inure to the
benefit of and be binding on the successors and permitted assigns of the parties.
15.04 Parties in Interest. Nothing in this Agreement is intended to confer any rights on
any Persons other than the parties to it and their permitted successors and assigns.
15.05 Waiver. The waiver by either party of any breach or violation of any provisions of
this Agreement shall not be deemed to be a waiver of any breach or violation of any other
provision nor of any subsequent breach or violation of the same or any other provision.
The subsequent acceptance by either party of any monies that become due hereunder
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shall not be deemed to be a waiver of any pre-existing or concurrent breach or violation
by the other party of any provision of this Agreement.
15.06 Attachments. Each of the attachments, identified as Attachments "A" through "Z-
1," is attached hereto and incorporated herein and made a part hereof by this reference.
15.07 Entire Agreement. This Agreement, including the Attachments, represents the full
and entire agreement between the parties with respect to the matters covered herein and
supersedes all prior negotiations and agreements, either written or oral.
15.08 Section Headings. The article headings and section headings in this Agreement
are for convenience of reference only and are not intended to be used in the construction
of this Agreement nor to alter or affect any of its provisions.
15.09 Interpretation. This Agreement shall be interpreted and construed reasonably and
neither for nor against either party, regardless of the degree to which either party
participated in its drafting.
15.10 Amendment. This Agreement may not be modified or amended in any respect
except by a writing signed by the parties.
15.11 Severability. If a court of competent jurisdiction holds any non -material provision
of this Agreement to be invalid and unenforceable, the invalidity or unenforceability of
such provision shall not affect any of the remaining provisions of this Agreement which
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shall be enforced as if such invalid or unenforceable provision had not been contained
herein.
15.12 No Attorney's Fees or Costs. In any action brought to enforce the terms of this
Agreement or arising out of this Agreement each party shall bear its own costs and/or
attorneys' fees.
15.13 References to Laws. All references in this Agreement to laws, rules, and
regulations shall be understood to include such laws, rules, and regulations as they may
be subsequently amended or re -codified, unless otherwise specifically provided. In
addition, references to specific governmental agencies shall be understood to include
agencies that succeed to or assume the functions they are currently performing.
15.14 City's Municipal Code. Contractor is aware of the provisions of City's Municipal
Code relating to the Collection and Disposal of solid waste, specifically Article 4, Chapter
3 (Solid Waste Management) of the Newport Beach Municipal Code, including the right
of City to amend those provisions. Contractor shall comply with all provisions of Article
4, Chapter 3, as they may be amended.
City may, in its sole discretion, determine whether and in what circumstances
enforcement of provisions of the City's Municipal Code relating to the obligation of owners
and occupants of Premises to use the services of Contractor is in the public interest. City
undertakes no obligation, by virtue of this Agreement, to Contractor to enforce such
provisions through civil actions, or termination of other utility services provided by City.
15.15 Agreement to Provide Services. The parties agree that this Agreement is a
contract to provide services to the City, and is not a franchise or a grant of exclusivity to
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Contractor. The City shall have no obligation to affirmatively defend Contractor's rights
granted under this Agreement, but shall reasonably cooperate with Contractor, at
Contractor's expense, in Contractor's efforts to defend its rights. City agrees that it will
not enter into a contract with another provider for the services described in this
Agreement, so long as Contractor is satisfactorily providing the services described herein
and is not in default pursuant to Article 13.
The parties acknowledge that City may permit the Collection, Recycling,
Composting, Diversion and/or Disposal of any materials generated from Residential
Premises in City including, but not limited to, all of the following materials without seeking
or securing any approval of Contractor:
A. Recyclable Materials which are separated by the Customer and
donated or sold to youth, civic, or charitable organizations or any other Person;
B. MSW, and/or Recyclable Materials which are removed from any
Premises by the property owner or occupant, and which are transported by the property
owner or occupant (or by his or her full-time employees) to a Processing Facility or to a
Disposal Facility;
C. Food Scraps and/or Green Waste which are removed from any
Premises by the property owner or occupant and which are transported by the property
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owner or occupant (or by his or her full-time employees) and Composted at a Processing
Facility, community composting site, and/or a community garden;
D. Food Scraps and/or Green Waste which are Composted on-site by
the property owner or occupant;
E. MSW self -hauled pursuant to Title 6, Chapter 6.06, Section 6.04.060
of the Newport Beach Municipal Code;
F. Recyclable Materials not placed for Collection by Contractor which
are delivered to a permitted Recycling drop off or buy-back center or facility;
Person.
G. Edible Food for Human Consumption that is Collected by any
H. Food Scraps that are separated by the Customer for use as Edible
Food for Human Consumption and are donated, sold or the Customer pays for Collection
and delivery of the Food Scraps to food banks, shelters, churches, civic organizations,
schools, individuals or any Person for human consumption.
I. Food Scraps that are separated by the Customer and are donated,
sold or the Customer pays for Collection and delivery of the Food Scraps for use as animal
feed.
J. Glass, plastic, and/or aluminum beverage containers and all other
containers delivered for Recycling under the California Beverage Container Recycling
Litter Reduction Act, Section 14500, et seq., California Public Resources Code;
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K. Construction and Demolition Debris self -hauled pursuant to Title 6,
Chapter 6.04. Section 6.04.060 of the Newport Beach Municipal Code, and/or hauled by
a Franchisee of the City of Newport Beach that is duly authorized to Collect Construction
and Demolition Debris. Such duly authorized Franchisee may include Contractor.
L. Green Waste removed from a Residential Premises by a gardening,
landscaping or tree trimming company utilizing its own equipment as an incidental part of
a total service offered by the company rather than as a hauling service pursuant to Title
6, Chapter 6.04, Section 6.04.060 and in compliance with Chapter 6.06, Sections
6.06.040, 6.06.050 and 6.06.060 of the Newport Beach Municipal Code;
K The casual or emergency Collection and Disposal of MSW by City
employees in the normal course of their employment;
L. Hazardous Waste, regardless of the source; and
M. Cleanup services such as 1 800 GOTJUNK and OC Junk Removal,
whose primary business is the cleanup of MSW on the property of another and who,
incidental to such business: (a) hauls only the MSW which the cleanup service cleans up
and no other MSW; (b) performs cleanup services such as removing junk from Residential
Premises; (c) the cleanup service uses its own vehicle to haul the MSW which the cleanup
service cleans up; and (d) does not use a Bin, Roll Off Box or other Container, whether
or not such Bin, Roll Off Box or Container is left at the cleanup site, to accomplish the
cleanup, Collection or transportation of the MSW.
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15.16 Non -Discrimination. Contractor shall not discriminate, nor permit any City -
approved subcontractor to discriminate, in the provision of services or the employment of
Persons engaged in the performance of this Agreement on account of race, color, religion,
sex, age, national origin, ancestry, physical handicap, sexual orientation, marital status
or medical condition in violation of any applicable federal, state or local law.
15.17 Guaranty. No later than ten (10) days before the Effective Date of this Agreement,
Contractor shall furnish a properly executed Guaranty of its performance under this
Agreement, in the form shown on Attachment T.
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This Agreement, consisting of one -hundred sixty-seven (167) pages, not including
Attachments A through Z-1, shall be executed in four (4) originals.
IN WITNESS WHEREOF, City and Contractor have executed this Agreement as
of the day and year first above written.
CONTRACTOR
CITY OF NEWPORT BEACH
By:
Mayor
ATTEST:
CITY CLERK
By:
City Clerk
APPROVED AS TO FORM
By:
City Attorney
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Attachments
A Definitions
B Scope of Work
C Implementation Plan and Schedule
D-1, D-2 Contractor Compensation Paid By City
Costs for Extra Services Billed Directly by Contractor to Residents
E Numbers and Types of Containers to be Furnished by Contractor and
Cart Specifications
F Collection Vehicles to be Furnished by Contractor
G Contractor -Furnished Personnel and Names of Key Personnel
H Not Used
I Orange County Landfill System Agreement
J Annual Compensation Adjustments
K Reports to be Submitted to City
L Performance Bond
M Bond Continuation Certificate
N Divertible Material Characterizations & On -Site Field Container
Contamination Audit Protocols
O Clean Materials Recovery Facility
P Composting Processing Facility
Q Map of Entire Service Area
R Map of Side Loader and Rear Loader Collection Areas
S Map of Summer Saturday Service Collection Areas
T Guaranty
U Minimum Required Duties of Recycling Coordinators
V Sure Close Kitchen Food Scrap Container
W Transfer Station Operating Agreement
X Public Education Materials
Y Information To Be Submitted With Monthly Invoice
Z, Z-1 Adjustment of Costs For Neighborhoods Added to Service Area and
New Residences Constructed on Vacant Land During the Term
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ATTACHMENT A
DEFINITIONS
Act: "Act" means the California Integrated Waste Management Act of 1989 (Public Resources
Code Section 40000, et seq.) as amended and as implemented by regulations of CalRecycle or
its successor. The Act includes, but is not limited to, legislation enacted subsequent to the original
Solid Waste Management Act (AB 939) such as AB 1594, AB 341, AB 1826 and SB 1383, which
are all codified at PRC Section 40000, et seq.
Affiliate: "Affiliate" means any Person who or which is related to the Contractor by virtue of a
direct or indirect ownership interest or common management. Affiliates include (1) a Person in
which the Contractor has a direct or indirect ownership interest, (2) a Person which has a direct
or indirect ownership interest in Contractor, and (3) a Person which is owned or controlled by any
person which has a direct or indirect ownership interest in Contractor.
For purposes of determining whether an indirect ownership interest exists, the constructive
ownership provisions of the Internal Revenue Code, in effect as of the Effective Date, shall apply
except that "ten percent (10%)" shall be substituted for "fifty percent (50%)" in Section
318(a)(2)(C) and Section 318(a)(3)(C).
Agreement: "Agreement" means this Agreement between the City and Contractor dated as of
, 2022, including all attachments, and any amendments hereto.
Alternative Daily Cover or "ADC": Alternative Daily Cover (or "ADC) means cover material
other than earthen material placed on the surface of the active face of a Municipal Solid Waste
landfill at the end of each operating day to control vectors, fires, odors, blowing litter and
scavenging. Federal regulations require landfill operators to use six (6) inches of earth material
as daily cover unless other materials are allowed as alternatives. CalRecycle has approved
eleven (11) ADC material types. Generally, these materials must be processed so that they do
not allow gaps in the exposed landfill face. Prior to 2014, Green Waste included in the list of
CalRecycle-approved ADC materials and use of Green Waste as ADC still counted as diversion
of the Green Waste materials for purposes of the Act. AB 1594, passed and signed into law in
2014 phases out the use of Green Waste as ADC effective January 1, 2020. As of that date no
Green Waste can be used as ADC and still count as diversion. As of January 1, 2020, any Green
Waste used as ADC are counted as Disposed tons for purposes of the Act. [See Section 6.3 for
the prohibition on use of Green Waste collected in City as ADC.]
Alternative Fuel Vehicle: "Alternative Fuel Vehicle" means a vehicle whose engine design uses
a fuel that is in full compliance with the South Coast Air Quality Management District's rules and
regulations including Rule 1193.
Authorized Customer Representative: "Authorized Customer Representative" means the
Person (including but not limited to, the owner or on-site manager) who has decision-making
authority to subscribe to Collection services provided by Contractor and to approve payment of
the bills for MSW, Recyclable Materials, Food Scrap/Green Waste and all other Collection
services provided by Contractor. The Authorized Customer Representative may be the Resident
themselves, or for an HOA or gated community the Authorized Customer Representative may be
the property management company, property manager or other designee hired or appointed by
the board of the HOA or the community. In cases where a Customer has retained the services of
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20-179
a waste broker or waste arranger, the Authorized Customer Representative is the Person who
has been given the decision-making authority by the Customer for the subject Residential
Premises within the City.
Bulky Items: "Bulky Items" means furniture, mattresses, couches and loveseats (including
sleeper sofas), chairs and other small pieces of furniture, water heaters, refrigerators, ranges,
washers, dryers, dishwashers, and other similar items (often referred to as "white goods"), and
other large, bulky or heavy objects not normally discarded on a regular basis at Residences. Bulky
Items must not be more than eight (8) feet in length, or more than four (4) feet wide, and must not
exceed once hundred fifty (150) pounds). Bulky Items does not include the following: automobile
bodies, Construction and Demolition Debris, tires, oil, antifreeze and other hazardous substances,
Household Hazardous Waste, Electronic Waste, Universal Waste, fluorescent bulbs, household
batteries, MSW, Recyclable Materials, Food Scraps, Green Waste, or items requiring more than
two (2) persons to remove. [See also the definition of "Household Hazardous Waste" for materials
Collected by Contractor as part of the Household Hazardous Waste Door -to -Door Collection
program.]
CalRecycle: "CalRecycle" means the California Department of Resources Recycling and
Recovery, the successor agency to the former California Integrated Waste Management Board.
Cart: "Cart" means a Container with a hinged lid and wheels serviced by an automated or semi -
automated truck with a capacity of 35 gallons, 60-67 gallons, and 90-100 gallons.
City: "City" means the City of Newport Beach, a municipal corporation, and all of the territory
lying within the municipal boundaries of the City as presently existing or as such boundaries may
be modified during the Term.
Clean Materials Recovery Facility (Clean MRF): "Clean Materials Recovery Facility" or "Clean
MRF" means a MRF, or that portion of a MRF that processes Recyclable Materials such as Single -
Material Recyclables and Single Stream Recyclable Materials, containing no more than the
maximum residue allowed by CalRecycle permit regulations (10% residue).
Collection: "Collection" or "Collect" means the taking of physical possession of MSW, Recyclable
Materials, Green Waste, Food Scraps, Construction and Demolition Debris or other materials
from Customers, and their transport to a Processing Facility, transfer station or landfill.
Community Association: "Community Association" means a Homeowner's Association, an
association that governs a gated community, or any other organized elected or appointed
governing entity for a group of residences located in City.
Compost: "Compost" is the product resulting from the controlled biological decomposition of
organic material that are source -separated from the MSW stream and that has been sanitized
through the generation of heat and processed to further reduce pathogens' (PFRP), as defined
by the U.S. EPA (Code of Federal Regulations Title 40, Part 503, Appendix B, Section B), and
stabilized to the point that it is beneficial to plant growth. Compost bears little physical
resemblance to the raw material from which it originated. Compost is an organic matter source
that has the unique ability to improve the chemical, physical, and biological characteristics of soils
or growing media. It contains plant nutrients but is typically not characterized as a fertilizer.
Attachment A Page 2 of 10
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Compost Facility: "Compost Facility" means a facility that processes one or more of the following
that have been source -separated from MSW: Food Scraps, Yard Trimmings, Wood, and Food -
Soiled Paper such as paper napkins and paper towels by means of outdoor windrow composting,
aerated static pile composting, covered composting, vermiculture, or other outdoor composting
methods or covered composting with use of either finished Compost or fabric, synthetic or other
type(s) of cover(s) applied to the compost piles.
Composting: "Composting" means the creation of Compost.
Compost Products: "Compost Products" means mulch, gravel, soil amendments, special
Compost blends (such as for specific agricultural uses or crops) and all other products created or
produced from Food Scraps, Wood, and/or Green Waste Collected from within City.
Construction and Demolition: "Construction and demolition debris" means all inert material of
every nature, description or kind, which has resulted from the building or demolition of a structure,
pavements, sidewalks, curbs, gutters, and other concrete structures, including all lumber scraps,
shingles, plaster, sheetrock, packaging, rubble, brick, stone, concrete, asphalt, dirt, rock and other
building materials.
Containerized: "Containerized" means MSW, Recyclable Materials, and Food Scraps/Green
Waste placed in a Cart with the lid in a fully closed position. (See also the definition of 'Non -
containerized".)
Contamination or "Contaminant": "Contamination" or "Contaminant" means materials which
are not specified for Collection in particular Carts or for processing at any Processing Facility and
which would either interfere with such processing or reduce the quality and value of the Recovered
Materials. For example, metals and plastics constitute "Contamination" if placed in a green -lidded
Cart designated to contain only Food Scraps and Green Waste. Tree trimmings constitute
"Contamination" if placed in a blue -lidded Recyclable Materials Cart. Contamination of MSW
means the presence of Divertable Materials in the MSW Cart such as Recyclable Materials, Food
Scraps, and/or Yard Trimmings.
Contractor: "Contractor" means CR&R, Incorporated.
County: "County" means the County of Orange.
Customer: "Customer" means the owner, occupant, tenant or user of Premises at which MSW,
Recyclable Materials, Green Waste, Food Scraps, Bulky Items, Electronic Waste, Universal
Waste and/or Household Hazardous Waste is generated and collected by Contractor. The
Customer is the Person Generating such materials. The Customer may be a separate Person
from the Authorized Customer Representative, who may arrange for and/or pay for, Collection
service provided by Contractor.
Divertable or Divertable Materials: "Divertable" or "Divertable Materials" means Recyclable
Materials, Food Scraps, Green Waste, Wood, Construction and Demolition Debris, Food Soiled
Paper (if directed by City), Electronic Waste, Universal Waste, and all other materials that can be
diverted from Disposal. Divertable Materials includes, but is not limited to, all materials required
to be Diverted from Disposal by City, CalRecycle or any state or federal agency.
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Disabled Persons: "Disabled Persons" means Customers that have been issued a handicapped
placard from the California Department of Motor Vehicles, received written documentation from a
medical doctor, or otherwise obtained approval to receive special Disabled Person services
pursuant to this Agreement.
Disposal: "Disposal" or "Disposed" means the burying of MSW at a fully permitted landfill.
Disposal Charge: "Disposal Charge" means the cost, charge or tip fee at a Disposal Site that is
paid by Contractor.
Disposal Site: "Disposal Site" means the City -designated landfill(s), or other facility(ies) used
for the Disposal of MSW. "Disposal Site" also includes the City -designated transfer station(s)
used to transfer MSW delivered in Collection vehicles into larger trucks and trailers which
transport the MSW to the City -designated landfill(s).
Diversion: "Diversion" or "to Divert" means any combination of Recycling, sorting, Composting,
and/or other Processing activities conducted at a Clean MRF, a Compost Facility, a
Construction and Demolition Debris Processing Facility or another City -approved Processing
Facility in order to prepare, use and/or market the materials for reuse, remanufacture,
reconstitution or to otherwise return the materials to the economic marketplace and to prevent
the materials from being Disposed in a landfill.
Diversion Programs: "Diversion Programs" means Collection of Recyclable Materials, Green
Waste, Food Scraps, Wood, Construction and Demolition Debris, and processing of said
materials at a Clean MRF, a Compost Facility, a Construction and Demolition Debris Processing
Facility or other Processing Facility. Diversion Programs include all programs operated by the
Contractor, the City, Residents, Businesses, Customers or other Persons that have the effect of
diverting MSW from landfill. Diversion Programs includes all of the programs included in the City's
Source Reduction and Recycling Element and all of the programs included in Attachment B.
Edible Food For Human Consumption: "Edible Food For Human Consumption" or "Edible
Food" means food that has been prepared but not served, and includes but is not limited to:
appetizers, soups, salads, entrees, desserts, raw fruits and vegetables that may or may not have
been sliced, grated, cooked, baked, or otherwise prepared for consumption but not served,
packaged sandwiches, salads, fruits and fruit salad, and other non -served food that meets state
and local requirements as being edible for human consumption. SB 1383 requires Diversion of
seventy-five percent of all Food Scraps, Green Waste, Wood and certain other materials from
Disposal by 2025, of which a minimum of 20% must be Edible Food for Human Consumption.
Effective Date: "Effective Date" means the date identified in Section 3.01.
Electronic Waste (E -waste): For purposes of this Agreement, "Electronic Waste" or "E -Waste"
includes discarded video display devices such as televisions, television screens, computer
monitors, plasma television screen, computer-related items, printers, copiers, stereos, speakers,
scanners, cables, computer CPU's, LED screens and monitors, computer keyboards, computer
mouse, printers, multi -function desktop machines (such as a combination printer/fax/copier), LED
bulbs, VCR's, DVD/CD/tape players, cellular telephones, microwave ovens, toasters, irons, and
all other corded appliances and corded devices that are not defined in this Attachment A as
"Universal Waste" and that are banned from Disposal in a landfill. (The parties acknowledge and
agree that this definition is used in the Agreement for the convenience of the parties and may
differ from that in current state law and regulations.)
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Environmental Laws: "Environmental Laws" means all federal and state statutes, county and
city ordinances concerning public health, safety and the environment including, but not limited to,
the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C.
Section 9601 et seq.; the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et
seq.; the Federal Clean Air Act, 42 U.S.C. Section 7401 et seq.; the Federal Clean Water Act, 33
U.S.C. Section 1251 et seq.; the Emergency Planning and Community Right to Know Act, 42
U.S.C. Section 11001 et seq.; the Occupational Safety and Health Act, 29 U.S.C. Section 651 et
seq.; the California Integrated Waste Management Act, California Public Resources Code Section
40000 et seq.; the California Hazardous Waste Control Act, California Health and Safety Code
Section 25100 et seq.; the California Toxic Substances Account Act, California Health and Safety
Code Section 25300 et seq.; the Porter -Cologne Water Quality Control Act, California Water Code
Section 13000 et seq.; the Safe Drinking Water and Toxic Enforcement Act, California Health and
Safety Code Section 25249.5 et seq.; the California Clean Air Act, Health and Safety Code
Sections 39000 et seq.; the California Hazardous Materials Response Plan and Inventory Act,
Health and Safety Code Sections 25500 et seq., as currently in force or as hereafter amended,
and all rules and regulations promulgated thereunder.
Extra Carts: "Extra Carts" means Carts requested by a Customer that exceed the number of
Carts provided to Customers in the basic residential service. The basic residential service
includes one (1) MSW Cart, up to two (2) Recyclable Materials Carts and one (1) Cart for Food
Scraps/Green Waste. Customers may request additional Carts and are billed directly by
Contractor for all such Extra Carts.
Extra Services: "Extra Services" means services provided to Residential Customers over and
above the standard or basic level of service as described in Section 1 of Attachment B and as
listed in Attachment D-2. Contractor issues direct bills to Customers for Extra Services. Examples
of Extra Services include, but are not limited to, Valet Service, Extra MSW Carts, Extra Food
Scrap/Green Waste Carts, and Extra Recyclable Materials Carts as described in Attachment B.
The City compensates Contractor directly for providing the standard or basic level of service
described in Attachment B, as shown in Attachment D-1. Customers pay the Contractor directly
for Extra Services at the prices listed in Attachment D-2.
Extra Services Charge Delay Period: "Extra Services Charge Delay Period" means the period
of time during which the City may direct Contractor to refrain from charging Customers directly for
Extra Carts and/or Extra Services. The process for the City activating this Delay Period is
described in Attachment B, Section 1. During the Extra Services Charge Delay Period (if
activated) the City pays the Contractor directly for all the Extra Carts and Extra Services
Contractor is providing to Customers as described in Article 12 and Attachment D-1.
Food Scraps: "Food scraps" means material resulting from the production, processing,
preparation or cooking of food for human consumption that is separated from MSW. Food Scraps
include surplus or unsold Edible Food, raw food left over after food preparation, leftover cooked
food, as well as spoiled food such as vegetables and culls, and plate scrapings. Food Scraps
includes, without limitation, Food Scraps from food facilities as defined in California Health and
Safety Code Section 113789, food processing establishments (as defined in California Health and
Safety Code Section 111955), grocery stores, farmer's markets, institutional cafeterias (such as
schools, hospitals and assisted living facilities), restaurants, and residential Food Scraps. Food
Scraps does not include Food Soiled Paper.
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Food Scrap Processing Facility: "Food Scrap Processing Facility" means the City -approved
Compost Facility, and/or other City -approved Processing Facility used to process Food Scraps
Collected by Contractor in the City.
Food Soiled Paper: "Food Soiled Paper' means paper towels, tissue products, paper napkins,
paper plates and cups, coffee filters, tea bags, waxed paper, butcher paper, paper take-out
boxes and containers, greasy pizza boxes, paper bags, cardboard and wax -coated cardboard
produce boxes. "Food Soiled Paper" does not include polystyrene, diapers, aluminum foil or foil -
lined food wrap.
Generate: "Generate" means to bring into existence or create, or to use, maintain or possess an
item, material or product, the result of which such creation, bringing into existence, use,
maintenance or possession is that the item, material or product first becomes, or is converted,
transformed, evolved to, or deemed as MSW, Recyclable Materials, Food Scraps, Green Waste,
Construction and Demolition Debris or other materials.
Generator: "Generator' means a Person who Generates MSW, Recyclable Materials, Food
Scraps, Green Waste, Household Hazardous Waste, Bulky Items, Construction and Demolition
Debris or other materials.
Grace Period: "Grace Period" means the period of time that Customers will not be charged for
Collection of Non -Containerized MSW, Recyclable Materials or Food Scraps/Green Waste that is
placed out for Collection by Contractor. After the Grace Period ends, Customers will be direct -
billed by the Contractor for Collection of any Non -containerized materials. The Grace Period is
described in Attachment B, Section 2.8.
Green Waste: "Green Waste" means trimmings from trees or shrubs, plants, grass cuttings,
removed or discarded branches, shrubs, plants, leaves or other materials generated from
landscapes or gardens.
Hazardous Waste: "Hazardous Waste" means as defined in Section 11.05 of the Contract.
Homeowners Association (HOA): "Homeowners Association" or "HOA" means a mandatory
membership organization comprised of two or more homeowners for the maintenance of
commonly owned real estate and improvements associated with multi -family developments
comprised of detached homes, condominiums or townhouses.
Household Hazardous Waste (HHW): "Household Hazardous Waste" or "HHW" means all
Hazardous Waste generated incidental to owning or maintaining a place of residence. Household
Hazardous Waste does not include any waste generated in the course of operating a business or
commercial activity at a residence or at any Commercial Business Establishment. Typical
Household Hazardous Waste include (a) cleaning products such as oven cleaners, rug and floor
cleaners, furniture polish, drain cleaners and solvents; (b) automobile maintenance products such
as car waxes, starting fluids, solvent cleaners, antifreeze, repair products, batteries, brake fluid,
motor oil, used oil filters and gasoline; (c) home improvement products including oil-based stains,
oil-based paints, liquid latex paint, caulking, varnish, paint thinners, chemical strippers, insect
repellants, insecticides, pesticides, kerosene, lighter fluid and pool chemicals; and (d) personal
care items including nail polish and remover, hair color. For purposes of the Diversion Programs
in the Agreement, HHW also includes Electronic Waste, Universal Waste, Sharps,
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Pharmaceutical Wastes (at the direction of City), and all materials listed in Section 3.2 of
Attachment B.
HHW does not include biological waste, ammunition, explosives, appliances, asbestos,
commercial chemicals, construction -related materials, fire extinguishers, Food Scraps,
cooking oil, grease, gas cylinders/pressurized cylinders, liquid mercury/elemental
mercury, broken items that contain mercury, radioactive materials, tires, automobile parts,
MSW, or Bulky Items.
Indemnitees: "Indemnitees" means the City, members of the City Council and other officers,
employees, and agents of City.
Materials Recovery Facility (MRF): See "Clean MRF'
Mobile Home Parks: "Mobile Home Parks" means a Residential community or complex
comprised of individual manufactured homes that are not permanently attached to the ground or
pad, and ancillary structures such as a community room, gardens, greenbelts, pools or other
amenities. Mobile Home Parks served by Contractor pursuant to the Agreement have individual
Cart Collection service (similar to single-family homes).
Monthly Report: "Monthly Report' means the report required to be submitted to the City on a
monthly basis as described in Attachment K. s
Municipal Solid Waste (MSW): "Municipal Solid Waste" or "MSW' is the variable portion of all
non -hazardous discarded materials that is left over after all Diversion Programs are utilized by
the owners and/or occupants of all Premises in the City. The owners and/or occupants of all
Premises within the City are provided with separate, designated Carts for MSW, Recyclable
Materials, and Food Scraps/Green Waste. The owners and occupants of all Premises separate
and place discarded materials in the appropriate Cart(s) provided to their Premises. City and third
parties may provide additional Diversion Programs for Collection and Diversion of other Divertable
Materials. MSW is the material placed by owners and/or occupants in the MSW Carts(s) and does
not include materials placed in the other Carts designated for Divertable Materials or materials
Diverted via other Diversion Programs.
MSW does not include (1) Hazardous Waste or Household Hazardous Waste, (2) low-level
radioactive waste regulated under California Health and Safety Code Sections 25800, et seq. or
(3) untreated medical waste which is regulated pursuant to the Medical Waste Management Act,
California Health and Safety Code Sections 25015, et seq.
Non -containerized: "Non -containerized" means (a) any materials placed inside a Cart that
prevent the complete closure of the Cart lid at a Residential Premises; (b) any materials strewn
on the ground beside, under or around the Cart; (c) materials piled on or around the Cart; (d)
materials in cardboard boxes, plastic bags, and/lor bundled materials that are outside the Cart,
and (e) any materials (including loose materials, bagged materials or materials in a cardboard or
other type of box) that are stacked on top of the Cart. All materials not inside the closed -lidded
Cart are considered Non -containerized. The Newport Beach Municipal Code requires that all
materials placed for Collection by Contractor be fully Containerized. This includes all MSW,
Recyclable Materials, Food Scraps, and Green Waste. (See also definition of "Containerized")
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Orange County Landfill System: "Orange County Landfill System" means any landfill owned or
operated by the County of Orange, currently including the Olinda Alpha, Frank R. Bowerman, and
Prima Deschecha landfills.
Orange County Landfill System Agreement: "Orange County Landfill System Agreement' or
"OCLS Agreement" or "Waste Disposal Agreement' ("WDA") means the contract entered into in
2009 between the County of Orange and the City of Newport Beach as amended in April 2016,
and as may be further amended in the future. The OCLS Agreement is in Attachment I.
Person: "Person" includes any individual, firm, association, organization, partnership,
corporation, business trust, joint venture, the United States, the State of California, the County,
municipality or special purpose district or any other entity whatsoever.
Plastic Containers: "Plastic containers" means all plastics made of resin numbers 1-7,
specifically excluding polystyrene.
Premises: "Premises" means any land or building in the City where MSW, Recyclable Materials,
Green Waste, Wood, Food Scraps and/or Construction and Demolition Debris is Generated or
accumulated.
Processing Facilities: "Processing Facilities" means facilities where the following activities are
conducted: sorting, cleaning, treating, Composting, and reconstituting Collected materials and
returning these materials to the economic mainstream in the form of raw materials for new, reused
or reconstituted products which meet the quality standards of the market place. Processing
Facilities include the Clean Materials Recovery Facility, Composting Facilities, Construction and
Demolition Debris sorting facilities, and concrete and asphalt grinding facilities. Processing
Facilities does not include Waste -to -Energy, Biomass, thermal destruction, or any type of
Transformation facilities.
Project Administrator: "Project Administrator" shall mean the Deputy Director of Public Works
who is the City -designated administrator for the Agreement.
Recovered Materials: "Recovered Materials" means those materials that are processed at a
MRF, Compost Facility or any other Processing Facility and thus Diverted from Disposal.
Recyclable Materials: "Recyclable Materials" means material which otherwise would become,
or be treated as, MSW but which, by means of a process of collecting, sorting, cleansing, treating,
and/or reconstructing, may be returned to the economic mainstream in the form of finished or
source material for new, reused or reconstituted products, which may be used in the market place.
"Recyclable Materials" includes Single -Stream Recyclable Materials and Single Material
Recyclables. Recyclable Materials includes, but is not limited to, paper, books, magazines,
cardboard boxes, plastics, metals, glass, and other similar materials authorized by the City for
Collection by the Contractor. Recyclable Materials does not include Food Scraps, Green Waste
or Construction and Demolition Debris.
Recycle/Recycling: "Recycle" and "Recycling" mean the process of Collecting, sorting, cleaning,
treating and reconstituting materials that would otherwise become MSW and returning these
materials to the economic mainstream in the form of raw materials for new, reused or reconstituted
products which meet the quality standards to be used in the marketplace.
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Recycling Coordinators: "Recycling Coordinator", "Recycling Coordinators" or "Coordinators"
means the employees of Contractor described in Section 7.05.H of the Agreement.
Residential Premises: "Residential Premises" or "Residential" or "Residence(s)" includes single-
family dwellings, Multi -family dwellings (such as townhouses, apartments, and condominiums),
gated developments, HOA's, Community Associations and Mobile Home Parks that are provided
individual Collection service for Carts at each dwelling unit, whether by means of walk-in (valet),
curbside or alley Collection.
Residue: "Residue" means the MSW destined for Disposal which remains after processing at a
MRF, Compost Facility, or other Processing Facility has taken place. The percent of Residue is
calculated by dividing the weight of the Residue by the weight of the total materials delivered for
processing at the facility. State law and regulations govern the allowable amount of Residue that
can be generated by each type of Processing Facility.
Self -Haul: "Self -Haul" means the hauling of MSW and/or Divertable materials to a transfer,
Processing, or Disposal Facility or other type of facility by a Customer, Generator, owner, or
occupant of any Premises.
Senior Citizens or Seniors: "Senior Citizens" or "Seniors" means Customers age sixty-five (65)
years and older.
Sharps: "Sharps" means new or used syringes, lancets and needles. Pursuant to state and
federal law, Sharps cannot be Disposed as MSW in a landfill, but instead must be separately
handled as medical waste. Sharps are included in the Household Hazardous Waste Collection
program described in Section 3.2 of Attachment B.
Single -Material Recyclables: "Single -Material Recyclables" means those Recyclable Materials
which satisfy each of the following requirements: (1) have been segregated from MSW for
handling separate from that of MSW by or for the Generator thereof; (2) have been further
segregated so that various types of Recyclable Materials, such as glass, metals, paper,
cardboard, etc., are not commingled; and (3) after such segregation, contain no more than ten
percent 10% Contamination by weight.
Single Stream Recyclable Materials: "Single Stream Recyclable Materials" or "Single Stream
Recyclables" means those Recyclable Materials collected as separated from MSW by the
Customer and consisting of a mixture of metals, glass, plastics #1-7, and all paper grades from
Residential Premises. Single Stream Recyclable Materials are distinguished from Single -Material
Recyclables, which consist of only a single type of material, such as glass, separated from other
Recyclables.
Term: "Term" means the Term of this Agreement as specified in Section 3.02, and as it may be
extended by City pursuant to Section 3.03.
Ton: "Ton" means a short ton of 2,000 pounds avoirdupois.
Transformation Facility: "Transformation Facility" means a facility utilizing incineration,
pyrolysis, distillation, or biological conversion other than Composting and does not include
Composting, gasification, biomass conversion or "wet" or "dry" Anaerobic Digestion. [See Section
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6.09 of the Agreement for the prohibition on use of Transformation Facilities for materials
Collected within City.]
Universal Waste (U -Waste): For purposes of this Agreement, "Universal Waste" or "U -Waste"
means electronic devices not included in the definition of "Electronic Waste" in this Attachment A,
including but not limited to common AA, AAA, C Cell and D Cell batteries; fluorescent tubes and
bulbs and other mercury containing lamps (including high intensity discharge [HID], metal halide,
sodium and neon bulbs); mercury -containing devices such as thermostats, switches,
thermometers, and relays (including those found in pre -1972 washing machines, sump pumps,
electric space heaters, clothing irons, and silent light switches); pilot light sensors from gas
appliances; mercury gauges from barometers, manometers, blood pressure and vacuum gauges;
mercury -added novelty items such as greeting cards that play music when opened, athletic shoes
with flashing lights in the soles, and mercury maze games; emptied aerosol cans, and other such
items that are banned from Disposal in a landfill. (The parties acknowledge and agree that this
definition may differ from that in current state law and regulations.) Certain types of Universal
Waste are Collected by Contractor as part of the Household Hazardous Waste Door -to -Door
Collection program as described in Section 3.2 of Attachment B.
Wood: "Wood" means all non -hazardous wood material that is not painted with lead-based or
other paints containing materials identified as Hazardous Waste, or treated with creosote or other
Hazardous materials. Wood includes, but not limited to, tree branches and other wood trimmings,
dimensional lumber and other pieces of Wood generated during the manufacture or processing
of Wood products, Wood generated as part of the harvesting or processing of raw woody crops,
and the Wood debris from construction and demolition activities.
Attachment A Page 10 of 10
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Attachment B Scope of Work
SECTION 1: GENERAL REQUIREMENTS
1.1. General Requirements for Collection and Billing.
The Contractor shall (A) Collect and Recycle all Recyclable Materials which are placed
for Collection at Residences, gated developments, HOA's, Community Associations, and
mobile home parks (collectively "Residences"); (B) Collect and Compost all Green Waste
and Food Scraps which are placed for Collection at Residences; and (C) Collect, transport
and Dispose of all Municipal Solid Waste (MSW) placed for Collection at Residences.
Contractor shall also be responsible for billing and collecting payment from Customers
for (a) Extra Carts and Extra Services, and (b) for Collection of Non -containerized
materials pursuant to the Agreement, as more fully described in this Section. All
Residences within City that are served with wheeled Cart service (versus centralized bin
service) are included in the Scope of Work in this Attachment B and shall be provided all
services described in the Agreement.
1.1.1 Customer Billing.
Contractor is compensated directly by City for providing all the services contained in the
Agreement with the exception of Extra Carts, Extra Services and Collection of Non -
containerized materials that are described herein and listed on Attachment D-2. With
regard to Extra Carts and Extra Services provided to Customers, Contractor shall prepare
and issue quarterly bills in advance and either mail bills, or provide bills electronically, to
Customers for such services. Contractor may begin issuing quarterly bills for Extra Carts
and Extra Services on April 1, 2022, unless the City invokes the option for the Extra
Service Charges Delay Period in order to delay Customers being directly billed for these
services (see Section 1.4 of this Attachment B). With regard to billing for Collection of
Non -containerized materials, Contractor may begin issuing monthly bills for Collection of
Non -containerized materials on February 15, 2022, unless the Grace Period to delay
direct -billing of Customers for Non -containerization is extended by the City as described
in Section 2 of this Attachment B. Contractor shall be solely responsible for following all
prudent business practices for collection of payments from Customers. Contractor shall
never bill for services not verifiably rendered. If a billing error is made for an Extra Service,
an Extra Cart(s) and/or Collection of Non -containerized materials that was not provided,
then Contractor shall provide a timely refund or credit to the Customer. If Contractor
makes an error and fails to bill a Customer for Extra Cart(s), Extra Services and/or
Collection of Non -containerized materials provided over an extended period of time,
Contractor shall only be able to recover payment for the most recent three (3) months of
services provided. In such event, Contractor shall discuss the situation with the
Customer, issue a bill for up to three (3) months of the Extra Cart(s), Extra Services,
and/or Collection of Non -containerized materials provided, and allow the Customer sixty
(60) days to pay the bill.
Attachment B Scope of Work Page 1 of 38
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Attachment B Scope of Work
Contractor shall prepare bills for Extra Cart(s), Extra Services and Collection of non -
containerized materials to Customers that clearly and accurately list the prices in
Attachment D-2 in effect at the time services were provided or for the time period in which
services will be provided. Bills shall fully explain and display all calculations of each
charge. Such charges shall be at the prices in Attachment D-2 as adjusted annually
pursuant to Article 12 of the Agreement. Contractor shall initially resolve any disputes
related to charges for Extra Cart(s), Extra Services and/or Collection of Non -containerized
materials with Customers. In the event Contractor cannot resolve a dispute, City may, at
its option, review the matter and make a decision. In this event, the decision of the City
shall be final.
Contractor shall submit to City, on or before February 1, 2022, a draft of bill format(s) and
a line -item description for each charge for Extra Cart(s), Extra Services and Collection of
Non -containerized materials, together with an example of a completed bill for a
Residential Premises receiving such Extra Services for review and approval.
The parties plan to notify Customers of the prices and charges for Extra Carts, Extra
Services and/or collection of Non -containerized Materials as shown in Attachments C and
X.
In the event of Customer non-payment of bills for Extra Cart(s), Extra Services and/or
Collection of Non -containerized materials, Contractor shall be responsible for collecting
delinquent charges for said services it renders to Customers. Contractor may employ
measures, consistent with federal and California laws regulating the collection of debts,
to obtain payment of charges including use of its own employees to obtain judgments in
Small Claims Court and to enforce such judgments. If Contractor has not received
payment within forty-five (45) days of issuance of a bill, Contractor may issue a written
notice that it will stop providing such Extra Cart(s), Extra Services within fourteen (14)
calendar days. If no payment is made, Contractor may cease providing the Extra
Services, and if applicable, remove Extra Carts that Contractor has provided to the
Customer. Regarding Collection of Non -containerized materials, Contractor will notify
City. Contractor's Recycling Coordinator and/or Contractor's City Liaison shall work with
City including City Code Enforcement Officers to educate Customer about options for
larger and/or Extra Carts. City may also take appropriate enforcement action.
1.1.2 Audit of Services Provided and Reported and Billings for Extra Carts, Extra
Services and Collection of Non -containerized Materials.
In accordance with the annual CalRecycle compliance review processes set forth in SB
1383, Contractor shall review and audit the level of service being provided to each
Customer, both for basic services and for Extra Services, (including all amounts billed to
each Customer for any Extra Carts, Extra Services and Collection of Non -containerized
materials received). Said audit shall compare the actual sizes, number and types (MSW,
Recyclable Materials, and Food Scrap/Green Waste) of Carts provided to each Customer,
frequency of Collection, and any Extra Services provided by Contractor, to the amounts
reported to the City for basic services and to the amounts being charged to Customers
for Extra Carts and Extra Services on an annual basis beginning in October 2022.
Attachment B Scope of Work Page 2 of 38
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Attachment B Scope of Work
Contractor shall submit a written report to City documenting the results of the audit and
noting any discrepancies identified and the date upon which the discrepancies were
corrected. The report shall provide a listing to the City of all households that do not have
a Cart for the Recyclable Materials Collection program and/or for the Food Scrap/Green
Waste Collection program and/or MSW Collection program and shall be submitted by
November 30 during each year of the Term beginning in 2022.
1.1.3 Service and Billing Records and Access By City.
Contractor shall maintain records of all services provided to Customers, and copies of all
services billing records and receipts, in chronological order, for the entire Term of the
Agreement, for inspection by the City upon request. The Contractor may maintain these
records in electronic form or hard copy, provided records can be preserved and retrieved
for inspection and verification in a timely manner, are sufficient to verify accuracy of all
services provided, all billings issued and paid by Customers, and may be produced in a
form and manner sufficient to establish the level of services provided to each Customer
in a court of law. (Maintenance of such records is required by SB 1383 at CCR
18995.2(f)(3)).
1.1.4 Shared Containers.
Contractor shall, at Customer request, allow Customers in neighborhoods serviced by the
single -pass rear -loader shown in Attachment R to share a Container for MSW, Recyclable
Materials, Food Scraps/Green Waste. Contractor shall provide the City with a listing of
Customers that subscribe to shared service in the annual reports.
1.2 Changes in Collection Services.
Contractor shall be responsible for: (A) establishing services for new Customers and (B)
stopping services and preparing a final billing on a pro rata basis for a Customer
subscribing to the optional Extra Services or Extra Carts that is permanently discontinuing
service.
Contractor shall, for approval of City, develop a procedure and confirmation form to
document requests for commencement and termination of, and changes in, service.
Customers shall be provided a copy of confirmation form noting effective date of start-up,
change, suspension or termination of Collection services and other pertinent details, such
as date of issuance of refund for any Extra Services not provided but for which Customer
has paid.
1.3 Changes in Scheduled Days of Collection.
1.3.1 Initial Re -Routing. Prior to the Effective Date, Contractor had pre -established
Collection routes within the City. The addition of co -collection of Food Scraps and Green
Waste, (which on some routes will be collected in a single pass vehicle that also collects
one additional type of material) required that Contractor restructure routes to 1) achieve
optimum Collection efficiencies; 2) reduce vehicle traffic in the City; and 3) add a third
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Collection route for co -collected food scraps/yard trimmings. As of the Effective Date,
Contractor has submitted, and City has approved, the new route maps and route lists.
Contractor shall implement its route optimization on January 31, 2022. This will allow time
for the City's street sweeping vendor to adjusted its sweeping routes and City to change
the "No parking" signage to correspond to the new Collection days.
Residents will be notified by the Contractor of all changes to scheduled days of Collection
as described in Section 4 of this Attachment B and as shown in Attachments C and X.
Collection by the Contractor using the new Collection routes and schedule shall
commence January 31, 2022. During the week January 31 through February 4, 2022 and
during the week of February 7 through 11, 2022, Contractor shall provide extra collection
service on the former service day for each neighborhood impacted by the service day
changes. For example, if the Balboa Peninsula had Monday service days prior to the
route optimization that became effective on January 31, 2022, Contractor shall continue
to provide back-up Collection service for the first two Mondays in these neighborhoods
after the new service day was implemented. This service shall Collect all Carts containing
MSW, Recyclable Materials and Food Scraps/Green Waste that were mistakenly rolled
out to the curb by Customers on the former ("old") Collection day instead of on the new
Collection day. Contractor shall make every effort to source -separate and Divert
materials that are Collected while conducting these backup Collection routes.
1.3.2 Route Changes After Initial Re -Routing. With the exception of the re-routing of
the City described in Section 1.3.1 of this Attachment B, the Collection schedule for MSW,
Recyclable Materials and Food Scraps/Green Waste shall not be changed without the
prior written approval of City. Contractor shall request approval from City ninety (90) days
prior to planned change in a scheduled day of Collection for Residential Premises. As a
condition of approval of such a change, City may require Contractor, at Contractor's sole
expense, to notify residents of the change by first-class postage. All details and
scheduling of such notice shall be subject to approval by the City.
Scheduled Collection days for MSW, Food Scraps/Green Waste, and Recyclable
Materials may be changed at the request of the occupant or Authorized Customer
Representative of any gated development, HOA, Community Association, or mobile home
park, without the approval of City.
1.4. Containers for the Collection of MSW, Recyclable Materials and Food
Scraps/Green Waste.
Contractor shall be responsible for furnishing all Residential Carts as detailed in Sections
1.4.1, 1.4.2, 1.4.3 and 1.4.4. Contractor shall inform Customers about the pending
changes in Carts and the pending delivery of new Carts as described in Section 4 of this
Attachment B. Contractor shall provide Customers with new Carts for Food Scraps/Green
Waste as described in Section 2.4.1 of this Attachment B.
As of the Effective Date, many Customers have multiple MSW Carts and may also have
multiple Carts for Recyclable Materials. In the past, Customers were provided with an
unlimited number of Carts and could also utilize their own plastic bags, boxes and other
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containers for storage and placement of MSW and Divertible Materials for Collection by
Contractor.
Contractor shall notify Customers (as described in Section 4 of this Attachment B and in
Attachments C and X) that as of the Effective Date, Customers shall receive the basic
level of service described in Section 1.4.2 of this Attachment B, and may request Extra
Carts as described in Section 1.4.3 of this Attachment B. If Customers have more Carts
than described in Sections 1.4.2 and 1.4.3, they will begin to be charged (via a direct bill
from Contractor) for the extra Carts as of April 1, 2022. Contractor shall inform Customers
that they can have Extra Carts removed prior to April 1, 2022 to avoid being billed for the
Extra Carts, as shown in Attachments C and X. The notice will provide the Customer with
Contractor's contact information to call or e-mail to request removal of the extra Cart(s).
Contractor shall not bill Customers for such extra Carts until April 1, 2022. [See Section
1.4.8 of this Attachment B concerning the City's option to delay the process of Contractor
direct -billing Customers for Extra Carts past April 1, 2022.]
During the entire Term of the Contract, Contractor shall maintain an adequate inventory
of Carts to fulfill and meet all needs of its Customers. Contractor shall be responsible for
the repair and replacement of all Carts that are broken, damaged, tagged with graffiti,
lost, or stolen. The repair, refurbishment and replacement of Carts shall be at the sole
expense of the Contractor. The Contractor shall submit, on a quarterly basis, a report
showing the inventory of all Carts as well as a record of the replacement and repair
schedule for the prior ninety (90) days. Upon Customer request, Contractor shall allow
Customers to switch to a different sized Cart for MSW, Recyclable Materials and/or Food
Scraps/Green Waste materials as described in this Section 1.4.
1.4.1 Cart Color Coding and Labeling.
As of the Effective Date, residents in the areas of the City labeled "2013 Contract Area"
in the Map in Attachment Q have Carts of the following colors and style: MSW Carts
manufactured by Toter® with a granite color body and a black lid; Recycling Carts
manufactured by Toter® with a granite body and a dark blue lid. Residents in the areas
of the City in Attachment Q labeled "Newport Coast Area" have MSW Carts manufactured
by Roto with black bodies and lids. Recycling Carts have brown bodies and lids.
The color scheme for carts required by SB 1383 (CCR Section18984.7) is black or gray
for MSW, blue for Recyclable Materials and green for co -collected Food Scraps and
Green Waste. Color may be indicated by the color of the entire Cart or by the Cart lid.
Contractor shall phase in replacement Carts by attrition, as further described herein, such
that when existing Roto carts require replacement, a new Toter® Cart (either granite with
a black lid for MSW or granite with a light blue lid for Recyclable Materials) will be provided
to the Customer, and the old Roto Cart will be Collected by Contractor and either
Recycled or Disposed. When existing Toter® Carts for Recyclable Materials with granite
bodies and dark blue lids require replacement, Contractor will provide the Customer with
a new Toter® Cart that is granite in color with a light blue lid and a Recycling decal.
Granite colored Toter® Carts with green lids and decals for storage of Food Scraps and
Green Waste, will be provided to Customers as described herein. The ultimate goal of the
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City is to achieve a uniform color scheme for all Carts with granite colored Toter® Carts
for each material and lids of the following colors: black lids for MSW, light blue lids with
Recycling decals for Recyclable Materials, and green lids with Food Scrap/Green Waste
decals for those materials.
All new Containers shall have messages/graphics on the Cart lid designed to remind
Customers of what can or cannot be placed into each type of Container as required by
CCR Section 18984.8. City shall have final approval of the text/graphics. All Carts
provided by the Contractor pursuant to this Agreement shall meet the detailed
specifications contained in Attachment E. All Carts shall be identifiable with a unique
serial number located on the Cart that is assigned to the collection location and address
that it services. A complete and current list of the serialized containers will be available to
City personnel for use on an "as needed" basis. Contractor shall continue to utilize the
herein -described color -coding scheme for all Residential Carts used in City through the
remainder of the Term unless otherwise directed by City.
Contractor shall Toter® brand Carts for Food Scraps/Green Waste to all Residences as
described in Section 2.4.1 of this Attachment B. Contractor shall endeavor to provide
Toter® brand Carts for MSW, Recyclable Materials and Food Scraps/Green Waste
throughout the Term, in order to create a uniform appearance of Cart aesthetics, shape
and colors throughout the City. If, after making reasonable and timely efforts to obtain
replacement Toter® brand Carts during the Term (and only after the initial purchase and
distribution of Toter® brand Carts described herein has been accomplished by
Contractor) Contractor may request City approval to provide replacement Carts from
another manufacturer. City shall determine, in its sole discretion, whether the quality,
features, sizes, Cart and lid colors and other characteristics of such Carts are equal to
those of the Toter® Carts and whether the proposed Carts meet the specifications in
Attachment E.
1.4.2 Containers for Basic Residential Service.
Contractor shall provide each Customer with a minimum of three (3) Carts for Residential
Premises basic level of service: one (1) granite body/black lid MSW Cart (or existing black
Roto Cart); one (1) granite body/light blue lid Recycling Cart (or existing Toter® with dark
blue lid or existing brown Roto Cart); and one (1) granite body/green lid Food Scrap/Yard
Trimmings Cart. Customers may request a second Recycling Cart at no additional charge.
Customers have a choice of Cart sizes as described herein.
Due to space constraints for Cart storage and street/alley width and size for Cart
Collection, the City is divided into two service areas for Collection of Food Scraps/Green
Waste Carts. Attachment R shows areas served by Contractor's single -pass split -body
rear loader vehicles and areas served by Contractor's side loader vehicles. Residents in
the rear loader area shall be provided with Food Scrap/Green waste Carts of the default
size of thirty-two (32) gallons. Residents in areas served by the side loaders shall be
provided with Food Scrap/Green Waste Carts of the default size of sixty-four (64) gallons.
Distribution of Food Scrap/Green Waste Carts, kitchen pails for Food Scrap storage, and
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associated public education materials is described in Section 2.4 of this Attachment B.
At any time (other than during distribution of the new Food Scrap/Green Waste Carts)
that a Cart is distributed to a Residential Premises, Contractor shall also deliver to the
Residential Premises the Recycling guide describing the Recyclable Materials Collection
program and the Food Scrap/Green Waste Collection program as described in Section
4.3.2.1 of this Attachment B.
1.4.3 Provision of Extra Carts, Cost and Notice to Customers
Customers may request additional Carts for MSW, Recyclable Materials and Food
Scraps/Green Waste as follows. Customers may also request different sizes of Carts
other than the default sizes listed in Section 1.4.2. If there is a cost for the Extra Cart(s)
Contractor shall bill the Customer directly, on a quarterly basis (in advance) pursuant to
the list of prices in Attachment D-2. Prices for additional Carts are subject to annual
adjustment as described in Section 12.03 of the Agreement. As described in Section 1.4
of this Attachment B, Contractor shall commence direct billing for Extra Carts on April 1,
2022.
Extra MSW Carts. If Customer requests one or more additional black or black -lidded
MSW Cart(s), Contractor shall provide such additional Cart(s) at the cost set forth in
Attachment D-2. As of the Effective Date the monthly cost for each additional sixty-four
(64) gallon MSW cart is six dollars and nine cents ($6.09).
Extra Recycling Carts. If a Customer requests one or more additional blue -lidded
Recycling Cart(s), Contractor shall provide one (1) additional Recycling Cart of any size,
at no additional charge. If the Customer requests additional carts beyond two (2)
Recycling Carts, Contractor shall provide the third (3rd) and any additional Recycling
Carts at the prices set forth in Attachment D-2. As of the Effective Date the monthly
price for the third (3rd) and subsequent additional 64 -gallon Recycling Carts is three
dollars and forty-one cents $3.41 per month per cart.
Extra Food Scrap/Green Waste Carts. If a Customer requests one or more additional
green -lidded Food Scrap/Green Waste Cart(s), Contractor shall provide such additional
Cart(s) at the price set forth in Attachment D-2. As of the Effective Date the monthly
price for each additional sixty-four (64) gallon Food Scrap/Green Waste cart is four
dollars and eleven cents ($4.11). For Customers in the rear loader Collection area
shown in Attachment R, Customers can request an additional thirty-two (32) gallon Cart
(which is the default size) or an additional sixty-four (64) gallon Cart (as described in
Section 1.4.4 below) for the same cost of four dollars and eleven cents ($4.11) per
month.
1.4.4 Customer Ability to Change Cart Sizes.
The default Cart sizes for MSW, Recyclable Materials and Food Scraps/Green Waste
are listed in Section 1.4.2. Customers may request, and Contractor shall provide, the
following different Cart sizes. If the Customer is requesting an Extra Cart for which there
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is an Extra Charge (as described in Section 1.4.3), Contractor shall bill the Customer
directly for the extra charge. If the Customer desires to exchange the default Cart
size(s) for one of the alternate Cart sizes listed herein, there will be no additional cost to
the Customer or to the City.
Alternate MSW Cart Sizes. In lieu of the default sized sixty-four (64) gallon MSW Cart,
Customers may request one (1) ninety-six (96) gallon MSW cart at no additional cost to
the City or the Customer. In tightly spaced areas, residents may select one (1) or two
(2) thirty-two (32) gallon MSW Cart(s) at no added cost rather than the default sixty-four
(64) gallon cart. If there is a disagreement between Contractor and the Customer about
whether or not the Customer is in a tightly spaced area and eligible for the smaller Cart
size(s), the City may make the final decision.
Alternate Recycling Cart Sizes. The Customer may select up to two (2) Recycling
Carts of any size at no additional cost to City or Customer. Possible two (2) Cart
configurations are as follows: two (2) thirty-two (32) gallon Carts; two (2) sixty-four (64)
gallon Carts; two (2) ninety-six (96) gallon Carts; one (1) thirty-two (32) gallon Cart and
one (1) sixty-four (64) gallon Cart; one (1) ninety-six (96) gallon Cart and one (1) thirty-
two (32) gallon Cart; or one (1) sixty-four (64) gallon Cart and one (1) ninety-six (96)
gallon Cart.
Alternate Food Scrap/Green Waste Cart Sizes. In lieu of the default sized sixty-four
(64) gallon Food Scrap/Green Waste Cart (in non -space constrained areas) or the
default sized thirty-two (32) gallon Food Scrap/Green Waste Cart (in space -constrained
areas), Customers may exchange the default sized Cart for one of the following sizes at
no additional cost to the City or Customer: one (1) thirty-two (32) gallon Cart, one (1)
sixty-four gallon Cart, or one (1) ninety-six (96) gallon Cart.
1.4.5 Valet Cart Services
The basic Residential Collection service described in Section 1.4.2 is Collection of Carts
placed at curbside or in an alley (which location can be a distance of up to 8 feet from
the property line per NBMC Section 6.04.120). Contractor shall provide Customers the
option to select one of the following Valet Cart Services at an additional cost:
Standard Valet Cart Service. In space -constrained areas with rear loader service (as
shown on the map in Attachment R) if a Customer requests Collection of one or more
Carts within a distance over 8 feet (8') and up to fifteen feet (15) of where the driver is
able to position the Collection vehicle, (with Contractor's driver and/or helper required to
exit the vehicle and retrieve the Cart(s) and move it/them a distance of up to fifteen feet
(15)), this shall be considered Standard Valet Cart Service. This would typically apply
where the Cart(s) are placed at the side of the house or behind a gate.
In automated side loader Collection Areas (as shown on the map in Attachment R), if
Contractor's driver must dismount from the cab of the Collection vehicle to empty a Cart
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within fifteen feet (15') from where the driver is able to position the Collection vehicle,
this shall be considered Standard Valet Cart Service.
Premium Valet Cart Service. If a Customer requests Collection of one or more Carts
from a location that is a distance greater than fifteen feet (15') from where the driver is
able to position the Collection vehicle, it shall be considered Premium Valet Cart
Service. This level of service is intended for Customers that want Carts moved from the
garage, back yard or side yard and the driver has to leave the cab of the vehicle to
provide the service. This service is more likely to be provided in the less space -
constrained areas, but shall also be provided by Contractor to Customers in the space -
constrained rear loader Collection areas shown on the map in Attachment R, if
requested by the Customer.
Contractor shall direct bill Customers on a quarterly basis, in advance, beginning April
1, 2022 for Valet and Premium Valet Cart Service at the prices in Attachment D-2. [See
Section 1.4.8 of this Attachment B for description of City's option to delay Contractor's
direct billing of Customers for Extra Carts and for Valet Service past April 1, 2022.]
As of the Effective Date, the price for Standard Valet Cart Service is $8.30 per home per
month and the price for Premium Valet Cart Service is $27.68 per home per month.
These costs include the Valet Service for all three (3) Carts (MSW, Recyclable Materials
and Food Scraps/Green Waste) provided as part of the basic level of Residential
service. The monthly cost for the Valet Services also includes Valet Service for any
Extra Carts the Customer has ordered.
In the event a Customer requests removal of any Extra Carts and/or discontinues Valet
Service after April 1, 2022 and a direct bill for such services has already been rendered
by Contractor to Customer, Contractor shall calculate a pro -ration for the number of
days the Extra Cart(s) and/or Valet Service were provided and either issue a credit or
refund (whichever the Customer prefers).
1.4.6 Special Cart Retrieval Service for Disabled Persons.
For no additional compensation from City and at no extra charge to the Customer,
Contractor shall provide Disabled Persons with Cart Retrieval and Collection Service to
those who request it. Contractor shall remove MSW, Recycling and Food Scrap/Green
Waste Carts from Customer's storage area for Collection and return the empty Carts to
the Customer's storage area, ensuring that all doors or gates are closed securely. In
order to qualify as Disabled pursuant to this Section, Customers must have been issued
a handicapped placard from the Department of Motor Vehicles, received written
documentation from a medical doctor, or otherwise obtain approval to receive such
service from the City. In the event of a dispute as to whether or not a Customer is
entitled to this service, the City shall make the final determination.
1.4.7 Notice to Customers Concerning Costs For Extra Carts.
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As shown in Attachments C and X, City plans to notify Customers via direct mail during
the month of December 2021 about the default Cart sizes, the ability of Customers to
request different Cart sizes from the default size (as described in Attachment B, Section
1.4.4) and the costs for Extra Carts. The City also plans to include information about the
prices and descriptions of "Standard Valet Service" and "Premium Valet Service" (as
described in Section 1.4.5); about the availability of Cart retrieval and Collection service
for disabled persons (as described in Attachment B, Section 1.4.6); that Contractor will
issue direct bills to Customers on a quarterly basis, in advance, for all Extra Carts and
for Valet Services; and that Customers can avoid charges for Extra Carts by requesting
that Contractor remove all Extra Carts before April 1, 2022.
Contractor shall direct mail a targeted notice to all households with Extra Carts and to
all households with Valet Service to advise them that they will be direct -billed for the
Extra Carts and Valet Service beginning April 1, 2022. The notice will inform Customers
about how to avoid charges for these Extra Services by contacting Contractor to have
Extra Carts removed and/or to discontinue Valet Service.
In order to enable residents to determine the number and sizes of Extra Carts they may
need, the Contractor's notice shall also include a reminder about the new requirements
that Customers Containerize all MSW, Recyclable Materials and Food Scraps/Green
Waste and that Non -containerization will result in extra charges.
The parties plan that City will send a separate notice to all Residents describing the new
Containerization requirements as shown in Attachment C and X. Non -containerization
will result in extra charges of two -dollars and forty-seven cents ($2.47) per household
per incident being direct -billed by Contractor to Customers beginning February 15,
2022.
1.4.8 City Option To Delay Contractor's Direct Billing For Extra Carts and Extra
Services.
As noted in this Section 1.4, Contractor will begin to direct -bill Customers for Extra Carts
and Valet Service ("Extra Services") on April 1, 2022. City may, in its sole discretion,
invoke an Extra Service Charge Delay Period ("Delay Period") during which Contractor
shall not direct -bill Customers for such services. City shall notify Contractor fifteen (15)
calendar days prior to April 1, 2022 if City decides to invoke the Delay Period. In such
event, the Delay Period will begin April 1, 2022 and extend through April 30, 2022.
During the Delay Period, City shall pay Contractor directly for all Extra Carts and all
Valet Services provided to Customers. Contractor shall include in its monthly invoice to
City, an itemized listing of all Extra Carts and all Valet Services provided during the prior
month including the address where each Cart(s) and/or Valet Service was provided.
City may extend the Delay Period by additional full calendar months by providing written
notice to Contractor a minimum of fifteen (15) calendar days prior to the end of the
authorized Delay Period.
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Once the City -authorized Delay Period ends, Contractor shall commence direct -billing of
Customers for Extra Carts and Valet Service. If the City does not extend the Delay
Period to encompass an entire calendar quarter that aligns with Contractor's quarterly
billing period, Contractor shall issue Customer invoices for the remaining months of the
quarterly billing period. For example, if the City directs Contractor to implement the
Delay Period for April 1 — 30, 2022, Contractor shall issue invoices to all Customers with
Extra Services beginning in early May 2022 for the invoicing period May 1 — June 30,
2022. If the City directs Contractor to implement the Delay Period for April 1 — May 30,
2022, Contractor shall issue invoices to all Customers with Extra Services beginning in
early June 2022 for the invoicing period June 1 — June 30, 2022.
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SECTION 2: RESIDENTIAL COLLECTION SERVICES
2.1 Basic Level of Service
Contractor shall provide the services described in this Attachment B to all Residences in
the Service Area shown in Attachment Q. The basic level of service for a Residential
Premises that is individually -serviced with Collection from wheeled, lidded Contractor -
supplied Carts, includes once weekly curbside or alley Collection of: (A) MSW provided
by automated Collection; (B) Recyclable Materials provided by automated Collection; (C)
Food Scraps/Green Waste provided by automated Collection, and other required
programs identified in the Agreement and in this Attachment B. City will allow exceptions
to automated Collection upon receipt of a written request from Contractor if required due
to space constraints, safety issues or other unusual circumstances. City's decision as to
whether or not to allow manual Collection shall be final.
During the Term, additional Residential homes will be constructed and occupied within
City. Contractor shall fully implement the Recyclable Materials Collection program, the
Food Scrap/Green Waste Collection program, and MSW Collection at each new
Residence within thirty days of issuance of the Certificate of Occupancy by the City. The
liquidated damages in Sections 13.09 A 1 shall not apply until a service order request has
been submitted to Contractor by one of the Contractor's Recycling Coordinators, the City,
and/or a Customer.
In the event that one of the three (3) Residential neighborhoods identified in Section 12.07
and Attachments Z and Z-1 of the Agreement elects to receive Collection service from
Contractor and City approves of this addition to Contractor's Service Area, the procedures
in Section 12.07 shall be followed to provide the Carts described in Section 1 of this
Attachment B to such residents and to commence the provision of services within the
timeframe required by Section 12.07. In such event, Contractor's compensation shall be
adjusted pursuant to Section 12.07, Attachment Z and Attachment Z-1.
2.2 MSW Collection.
The basic level of service for a Residential Premises that is individually -serviced is once
weekly curbside or alley Collection of MSW provided by automated Collection. This
includes MSW Collection services from wheeled, lidded Carts at all Residences located
in gated communities, Community Associations, HOA's and mobile home parks.
2.3 Recycling Services.
The basic level of service for a Residential Premises that is individually -serviced is once
weekly curbside or alley Collection of Recyclable Materials provided by automated
Collection on the same day as MSW Collection. Contractor shall process Recyclable
Materials at the Clean MRF approved by City listed in Article 5 of the Agreement and
arrange for sale of the Recyclable Materials.
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Contractor shall provide Recyclable Materials Collection service to any new Residences
pursuant to Section 2.1 of this Attachment B. If any Resident refuses delivery of a
Recycling Cart, Contractor shall make one additional attempt to inform the Resident of
the reasons for the state -mandated Recycling program and to deliver the Cart. If the Cart
is refused a second time, Contractor shall retain the Cart for future use within the City.
Contractor shall maintain a record of the Customer name, address, date(s) of Cart refusal
and the number of total Recycling Carts being held in inventory due to being refused.
Contractor shall provide the number of refused Recycling Carts in inventory in the monthly
reports to City described in Attachment K.
2.4 Food Scrap/Green Waste Collection Program.
The basic level of service for a Residential Premises is once weekly curbside or alley
Collection of Food Scraps/Green Waste provided by automated Collection on the same
day as MSW Collection. Contractor shall process the Collected commingled Food
Scraps/Green Waste at the Compost Facility approved by City listed in Article 5 of the
Agreement and arrange for sale of the Compost that is produced.
2.4.1 Distribution of Food Scrap/Green Waste Carts and Kitchen Pails.
Contractor shall implement a co -collected Food Scrap/Green Waste program at all
Residential Premises in City with Collection of Food Scraps/Green Waste from all
Residences beginning on or before January 31, 2022. The phased rollout will begin
January 31, 2022 and continue through March 31, 2022. Contractor shall deliver one
sixty-four (64) gallon Cart with a green lid and decal for storage of Food Scraps/Green
Waste to each Residence located within the areas of the City labeled "2013 Contract" in
Attachment R. In areas labeled "Newport Coast" in Attachment R, Contractor shall deliver
one thirty-two (32) gallon Cart with a green lid and decal for storage of Food Scraps/Green
Waste. All Residences shall receive a Food Scrap/Green Waste Cart on or before March
31, 2022. Failure of Contractor to distribute a Food Scrap/Green Waste Carts to all the
Residences within City by April 30, 2022 shall result in assessment of liquidated damages
described in Section 13.09 of the Agreement.
Customers located in HOAs or Gated Developments that have landscaping service in a
community association or HOA etc. and that may not, therefore, generate any green
waste still will be delivered a green -lidded cart for Food Scraps.
Contractor shall distribute public education materials to all Residences concurrent with
the distribution of Food Scrap/Green Waste Carts as more fully described herein and in
Section 4 of this Attachment B.
If requested by Customer, Contractor shall provide different size(s) of Food Scrap/Green
Waste Carts as described in Section 1.4 of this Attachment B. If any Resident refuses
delivery of a Food Scrap/Green Waste Cart, Contractor shall make one additional attempt
to inform the Resident of the reasons for the new state -mandated Food Scrap/Green
Waste Collection program and to deliver the Cart. If the Cart is refused a second time,
Contractor shall retain the Cart for future use within the City. Contractor shall maintain a
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record of the Customer name, address, date(s) of Cart refusal and the total number of
Food Scrap/Green Waste Carts being held in inventory due to being refused. Contractor
shall provide the number of refused Carts in inventory in the monthly reports to City
described in Attachment K.
Within fourteen (14) calendar days after delivery of the Food Scrap/Green Waste Cart to
a Residence, Contractor shall provide the residence, at no additional charge, with a "Sure
Close TM" food Scrap container for storage of Food Scraps in the kitchen as described in
Attachment V.
Contractor shall prepare and distribute public education materials, customized to Newport
Beach Residents, simultaneously with the "Sure Close TM" containers. Said distribution
shall be accomplished by going door-to-door to provide each residence with a "Sure
Close TM" kitchen Food Scrap container as shown in Attachment V. Public education
materials describing the Residential Food Scrap/Green Waste program, and showing how
to use the Sure Close TM container shall be provided to each residence and Contractor's
personnel shall discuss the new Food Scrap/Green Waste program with occupants of
each residence. The public education materials to be provided with each kitchen pail are
described in Section 4.3.2.2 of this Attachment B.
If any Resident refuses delivery of a Sure Close TM kitchen Food Scrap pail, Contractor
shall make one additional attempt to inform the Resident of the reasons for the new state -
mandated Food Scrap/Green Waste Collection program and to deliver the pail. If the pail
is refused a second time, Contractor shall retain the pail for future use within the City.
Contractor shall maintain a record of the Customer name, address, date(s) of pail refusal
and the total number of refused Sure Close kitchen Food Scrap pails being held in
inventory. Contractor shall provide the number of refused pails in inventory in the monthly
reports to City described in Attachment K.
After initial delivery of the default sized sixty-four (64) gallon or thirty-two (32) gallon Food
Scrap/Green Waste Cart to Residences (size depending upon the Customer's location
within the City as described in Section 1.4 of this Attachment B) if the Customer requests
a second Food Scrap/Green Waste Cart, Contractor shall promptly deliver such Cart and
the additional charge listed in Attachment D-2 for the Extra Cart shall be direct -billed to
the Customer by Contractor as described in Section 1.4.3 of this Attachment B.
Contractor shall continue to prepare and distribute a set of public education materials as
described herein and in Section 4 of this Attachment B, annually during the Term.
2.5 Reports to City on Cart Distribution and Diversion Program Rollout
Contractor shall provide City with bi-weekly updates on Food Scrap/Green Waste Cart
and kitchen pail distribution. The first bi-weekly reporting period will be January 24 —
February 14, 2022 with the bi-weekly report due on February 11, 2022. The bi-weekly
reports shall continue throughout the Cart distribution, program implementation and
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shakedown period and shall end April 30, 2022. Each report shall be due to the City on
the first Friday following the 2 -week reporting period.
The bi-weekly reports shall be submitted to the City via electronic mail and shall include
the following: (a) number of Food Scrap/Green Waste Carts delivered during the prior
two (2) week period and addresses where delivered; (b) number of Sure Close TM
kitchen Food Scrap containers delivered during the prior two (2) week period and
addresses where delivered; (c) number of Customers who received public education
materials about the Food Scrap/Green Waste Collection program during the prior two
(2) week period including which materials the Customers received; (d) number, type(s)
and method(s) of dissemination of public outreach information about the Food
Scrap/Green Waste Collection program, the Recyclable Materials Collection program,
methods to prevent Contamination in MSW, Recyclable Materials and Food
Scrap/Green Waste Carts and other aspects of the Diversion Programs completed
during the prior two (2) week period; (e) the number of Customer requests for non -
default sized Carts, addition of Extra Carts, removal of Extra Carts and addition or
discontinuation of Valet Services that were fulfilled during the prior two (2) week period
and addresses where changes were made; and (f) the number of outstanding unfulfilled
requests for additional carts, Cart removal , change to valet service and Cart exchange.
2.6 Monitoring of Contamination in All Residential Collection Programs
Monitoring, reducing and eliminating Contamination in the MSW, Recyclable Materials
and Food Scrap/Green Waste Collected by Contractor is of paramount importance for the
City's compliance with SB 1383 (which is part of the Act). Contractor shall perform all of
the following to monitor, reduce and eliminate Contamination in the Residential Diversion
programs.
2.6.1. Characterizations and On -Site Field Audit Requirements
Contractor shall conduct all Characterizations and On -Site Field Audits described in
Attachment N and shall also conduct all follow-up Contamination tracing and public
education and outreach described therein.
2.6.2. Observation and Issuance of Contamination Notices to Customers.
Whenever Contractor's driver arrives at a Residence where the driver observes
Contamination in any Cart(s) (MSW, Recyclable Materials and/or Food Scrap/Green
Waste Cart(s)), the driver shall take the following actions:
(1) Utilizing the tablet -based, on -board operational CRM system described in Article
7, photograph the Contamination in the Cart and link the Contamination event
with the Customer associated with the Contaminated materials in a manner that
notes the address, customer number, time, and date with the Contamination
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event. Upload the photograph to both Contractor's dispatch/Customer Service
and to a shared, cloud -based file that is also accessible by the City;
(2) Empty the Contaminated Cart into the Collection vehicle, including Collecting all
materials in and around the Cart.
(3) Place a hang -tag on the Contaminated Cart. The hang -tag shall contain the
following information:
a. Customer must place only acceptable Recyclable Materials in the
Recycling Cart and only acceptable Food Scraps and Green Waste in the
Food Scraps and Green Waste Cart. No Recyclables or Food Scraps and
Green Waste shall be placed in the MSW Carts.
b. Informing the Customer that they may request additional Recyclable
Material Carts and Food Scraps and Green Waste Carts from CR&R at an
additional charge
c. Informing the Customer that State law and local ordinance requires all
Residents to participate in the City's Recyclable Materials and Food Scrap
and Green Waste Diversion programs
d. Notifying the Customer that the City may fine the Customer if additional
Contamination occurs
Upon Contractor receipt of notification from the driver that a Customer has placed a
Contaminated Cart out for Collection, the Contractor's personnel shall record the
instance on a digital database including the following information:
1. Date of Contamination event
2. Time of Contamination event
3. Customer address where Contamination was encountered
4. Customer identification number (if available for the customer) for Customer
associated with Contamination
5. Photo -documentation of Contamination
6. Route number for the route where the Contamination was encountered
7. Material stream that was Contaminated and by which type of Material (i.e. MSW
in the Recyclable Material stream, Recyclable Materials in the MSW stream,
Food Scraps/Green Waste in the Recyclable material Stream, etc.)
In the monthly reports described in Attachment K, Contractor shall provide the City with
a digital listing, in Excel format (or similar database program approved by City), of
Customers that were found by the driver to have Contamination in their Carts. The report
shall include: 1) the total number of Contamination events associated with each Customer
during the reporting period; and 2) the Cart which contained the Contamination (i.e.
Recycling Cart, MSW Cart, or Food Scraps Green Waste Cart). Contractor shall also
provide to City photo -documentation of each instance of Contamination on a monthly
basis using a cloud -based file sharing service.
Attachment B Scope of Work
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2.7 Procedures For Handling Non -Containerized MSW, Recyclable Materials,
Food Scraps/Green Waste and Other Materials.
Prior to the Effective Date, City allowed Residents to place MSW, Recyclable Materials
and Green Waste in plastic bags, cardboard boxes, bundles and in other Customer -
provided containers for Collection, and also in piles on the street, alley or curb. As of
the Effective Date, the City has changed this requirement (see NBMC Title 6, Section
6.06.080) to require all MSW, Recyclable Materials and Food Scraps/Green Waste to
be stored and placed for Collection in the Contractor -provided wheeled Carts with lids
fully closed. Carts are more fully described in Section 1 of this Attachment B.
The only exception to this Containerization requirement is for Bulky Items that are
placed out for Collection and for which the Customer has scheduled a Collection
appointment with Contractor as described in Section 3 of this Attachment B.
2.7.1. Each Instance of Contractor Encountering Non -containerized Waste
When Contractor's driver arrives at a Residence where Non -containerized materials are
present in the street, curb area or alley, the driver shall take the following steps:
(1) Utilizing the tablet -based, on -board operational CRM system described in Article
7, photograph the non -containerized material(s) and link the Non -containerized
materials with the Customer associated with the Non -containerized materials in a
manner that notes the address, customer number, time, and date with the Non -
containerization. Upload the photograph to both Contractor's dispatch/Customer
Service and to a file to be sent to the City;
(2) Empty the Cart into the Collection vehicle, including collecting all Non -
containerized materials in and around the Cart
(3) Place a hang -tag on the Cart nearest the Non -containerized materials. The hang -
tag shall contain the following information:
a. Customer must place all materials in the Cart with the lid fully closed.
b. Informing the Customer that they may request additional Carts from CR&R
at an additional charge
c. Notifying the Customer that the City may fine the Customer if additional
Non -containerization occurs
d. Notifying the Customer that on the second and subsequent instances of
Non -containerization, the Customer will receive a direct -bill charge by
CR&R for Non -containerization
Upon Contractor receipt of notification from the driver that a Customer has placed Non -
containerized materials for collection, the Contractor's personnel shall record the
instance on a digital database including the following information:
1. Date of Non -containerization
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2. Time of Non -containerization
3. Customer address where Non -containerization was encountered
4. Customer identification number (if available for the customer) for Customer
associated with Non -containerization
5. Photo -documentation of non -containerization
6. Route number for the route where the Non -containerization was encountered
7. Type of material that was Non -containerized (Le. MSW, Recyclable Materials,
Food Scraps/Green Waste)
During the period January 15, 2022 through February 14, 2022 (which is the planned
Non -containerization Grace Period), and during any City -directed extensions of the Non -
containerization Grace Period, Contractor shall, on a weekly basis, cross-reference the
existing Non -containerization digital database with all driver -reported instances of Non -
containerization for the service day to determine if any instances constitute a second or
subsequent Non -containerization event. Contractor shall upload the results to a cloud -
based file that is accessible to the City on a weekly basis.
Once the Non -containerization Grace Period ends, Contractor shall continue to, on a
weekly basis, cross-reference the existing Non -containerization digital database with all
driver -reported instances of Non -containerization for the service day to determine if any
instances constitute a second or subsequent Non -containerization event. Contractor shall
upload the results to a cloud -based file that is accessible to the City on a monthly basis.
If the Contractor identifies any Customers that have second or subsequent Non -
containerization instances associated with their address, the Contractor may direct -bill
these Customers the Non -containerization rate set forth in Attachment D-2.
If the Contractor does not have an existing billing relationship with any Customer that will
be direct -billed a Non -containerization fee, the Contractor may request the billing
information for these Customers from the City on a weekly basis. Upon request for
Customer billing information from the Contractor, the City shall provide the requested
information within 5 business days of receipt of Contractor's request.
On a monthly basis, Contractor shall provide the City with a digital listing, in Excel format
(or similar database program approved by City), of Customers that have Non -
containerized materials that shall include the information described above along with 1)
the total number of Non -containerization instances associated with each customer since
January 15, 2022; and 2) Customers the Contractor direct -billed for Non -containerization
as of February 15, 2022 (or later if City extends the Non -containerization Grace Period).
Contractor shall also provide to City photo -documentation of each instance of Non -
containerization on a monthly basis using a cloud -based file sharing service.
2.7.2. Non -containerization Fee Grace Period
The parties contemplate the provision of a Grace Period for Customers to become
acclimated to the requirement for containerizing MSW, Recyclable Materials, and Food
Scraps/Green Waste in their Carts. The Grace Period will begin on January 15, 2022.
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The parties agree the Grace Period is planned to end on February 14, 2022 with direct -
billing of Customers by Contractor beginning February 15, 2022; however, the Grace
Period may be extended in the City's sole discretion. In the event City desires to extend
the Grace Period, City will notify Contractor, seven (7) calendar days prior to the planned
termination of the Grace Period. Any Grace Period extensions shall be for a full thirty (30)
calendar day period. During the Grace Period, Contractor shall bill the City for every
instance of Non -containerized materials in Contractor's monthly invoice as described in
Article 12. After the Grace Period, Contractor may direct -bill Customers for Collection of
Non -containerized materials as described herein, and shall simultaneously cease billing
the City for same.
During the Grace Period, if Non -containerized materials are encountered, Contractor shall
follow all the steps outlined in Section 2.8.1 with the exception that Contractor shall leave
the special Grace Period hang -tag on the Customer's Cart during this time. The Grace
Period hang tag shall contain the following information:
a. Customer must place all materials in the Cart with the lid fully closed.
b. Informing the Customer that they may request additional Carts from CR&R
at an additional charge
c. Customers have a Grace Period from January 15, 2022 to February 14,
2022 during which they will not be directly -billed for the Non -
containerization of MSW, Recyclable Materials, and Food Scraps/Green
Waste. Beginning February 15, 2022, Customers will be billed for second
and all subsequent instances of Non -containerization.
d. Beginning February 15, 2022, the Customer may also (in the City's sole
discretion) receive a fine from the City if additional Non -containerization
occurs.
2.7.3. Process for Direct -billing Customers for Non -containerization
Additional costs for Collection of Non -containerized materials occur when the Contractor's
driver must leave the Collection vehicle to gather and Collect Non -containerized materials
that would otherwise be in the wheeled Cart. When all materials are Containerized, each
Cart can be lifted by the truck's automated arm without the driver leaving the truck cab.
Containerization makes Collection more efficient and cost-effective. The prices for
Collection of Non -containerized materials in Attachments D-1 and D-2, and the following
direct -billing protocols, reflect these costs. Contractor shall direct -bill for Non -
containerization as follows:
1 a) Customers receiving service from a Single -pass vehicle: Contractor may only bill the
Customer once for collecting Non -containerized materials from both streams that are
being Collected by that vehicle. For example, if the single -pass vehicle is collecting Food
Scraps/Green Waste and Recyclable Materials and materials from both streams are Non -
containerized, the Contractor may only bill the Customer for one instance of Non -
containerization.
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1 b) However, if both the single -pass Food Scraps/Recyclable Materials Collection vehicle
driver and the dedicated MSW Collection driver each encounter Non -containerized
materials in their respective Collection streams, then Contractor may bill the Customer
for 2 instances of Non -containerized materials on the same service day.
1c) Customers will be receiving Collection service either from three separate, dedicated
Collection vehicles (MSW, Recyclable Materials, and Food Scraps/Green Waste) or from
two separate Collection vehicles (Food Scraps/Green Waste/Recyclable Materials
collected in a single -pass truck and MSW collected by a separate truck). Contractor may
direct -bill Customers for each material stream that is Non -containerized at the time of
Collection. For example, if a Customer's MSW Cart has 2 extra plastic bags of MSW
placed on top and Customer's Recyclable Materials Cart has cardboard piled alongside,
and it is not the Customer's first failure to Containerize materials, this would constitute
two instances of Non -containerization and the Contractor would be permitted to direct -bill
the Customer two Non -containerization fees (one fee for each of the Non -containerized
materials).
1d) In the event that Customer's first instance of Non -containerization includes multiple
Materials that are Non -containerized, it shall be counted as a single first instance of Non -
containerization and Contractor shall not direct -bill the Customer for this first Non -
containerization instance. In such an event, the driver shall leave the hang tag as
described above in Section 2.7.1 of this Attachment B.
SECTION 3: SPECIAL SERVICES
3.1 Bulky Goods Collection Services.
Contractor shall provide Collection services for Bulky Items at Residential Premises in
City. Customer or City may request Collection of Bulky Items a minimum of two (2)
business days in advance of the desired Collection date. The Collection date may be
more than two (2) business days after the Customer's or City's request, on a date mutually
agreed to by Customer and Contractor. Collection shall occur on or before the Customer's
next regularly scheduled MSW Collection day, unless another date is agreed upon by
Customer and Contractor or City and Customer. Bulky Items at Residential Premises
shall be collected at, or reasonably near, curbside or in the alley, giving due consideration
to circumstances of access points, vehicular and pedestrian safety and the like, in
accordance with the scheduled appointment time established by Contractor, which shall
in no case be earlier than 7:00 a.m. local time.
Contractor shall provide five (5) Residential Bulky Items Collections per calendar year of
up to five (5) Bulky Items per Collection at no charge to Residents. For additional
Collections of Bulky Items from Residential Premises, Contractor shall direct bill the
Customer for the Extra Charges set forth in Attachment D-2. As of the Effective Date the
charge for Extra Bulky Item Collections (a sixth (6t") Collection and all subsequent
Collections within one calendar year) is thirteen dollars and ninety-five cents $13.95 per
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Collection.
Bulky Items include the following: furniture, mattresses, couches and loveseats (including
sleeper sofas), chairs, water heaters, refrigerators, ranges, washers, dryers,
dishwashers, and other similar items (often referred to as "white goods"), and other large,
bulky or heavy objects not normally discarded on a regular basis at Residences. Bulky
Items must not be more than eight (8) feet in length, or more than four (4) feet wide, and
must not exceed once hundred fifty (150) pounds). Bulky Items does not include the
following: automobile bodies, Construction and Demolition Debris, tires, Household
Hazardous Waste, oil, antifreeze and other hazardous substances, Electronic Waste,
Universal Waste, fluorescent bulbs, household batteries, or items requiring more than two
(2) persons to remove.
In the event of a dispute between Contractor and a Customer as to whether an item meets
the definition of a "Bulky Item" for Collection pursuant to this Section, City's Agreement
Administrator shall make the final determination.
Bulky Items Collected by Contractor shall not be landfilled or Disposed until the following
hierarchy of Diversion efforts has been followed by Contractor and Contractor has made
reasonable, verifiable and documented efforts to Divert Bulky Items from Disposal:
1. Re -use as is or repair.
2. Disassemble for re -use, re -purposing or Recycling.
3. Recycle.
4. Dispose.
For appliances containing Freon or any other coolant that is Hazardous Waste, Contractor
shall be responsible for the proper removal of the Freon from the appliances in a manner
consistent with federal, state and local laws and regulations, and for Recycling the metal
from said appliances, all at no additional cost to the Customer or the City. Contractor
may perform this service itself, or deliver the collected appliances to a fully permitted third
party for removal of the Freon and Recycling of the metal.
Contractor shall maintain records of the Customers requesting Bulky Item Collections, the
number of Collections requested by each Customer, the number of Collections provided
by Contractor, the number and Tons of Bulky Items delivered for repair, re -use, re-
purposing and Recycling, the types of Bulky Items Contractor is able to Divert to repair,
re -use, re -purposing and the Tons Disposed. The number of Collections and the Tons
Collected, Diverted and Disposed each month shall be included in Contractor's Monthly
Report as described in Attachment K. Contractor shall submit additional records
(including but not limited to records of the number of requests per Customer, the types of
Bulky Items Contractor is able to Divert and the organizations or Persons Contractor
delivered Bulky Items to for Diversion) to the City upon request.
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Attachment B Scope of Work
3.2 Household Hazardous Waste Door -to Door Collection Program.
Contractor shall provide all labor, equipment, vehicles, licenses, permits and services
necessary to Collect Household Hazardous Waste ("HHW") from Residential Premises in
City. For purposes of this Agreement, HHW includes all types of material listed in the
definition of HHW in Attachment A. A Customer or the City may request Collection of
Household Hazardous Waste by scheduling an appointment with Contractor a minimum
of five (5) business days in advance. Contractor shall Collect the HHW on the Customer's
next regularly scheduled MSW Collection day. Contractor shall provide the Customer with
instructions for properly preparing the HHW for Collection, and shall arrange with
Customer for a proper, safe and secure location from which the HHW is to be Collected.
Contractor shall only Collect HHW when there is an adult present at the Residence or in
the absence of an adult at the residence, when there is a safe and secure location in
which the HHW can be placed (i.e. a side or back yard). Contractor shall instruct
Customers not to place HHW for Collection in alleys or at curbside. Contractor shall
deliver or mail any bags or other materials or containers necessary for Customer to use
to properly and safely package and place the HHW for Collection. Contractor shall
provide special assistance when Collecting HHW materials from Senior Citizens and
Disabled Persons (as defined in Attachment A).
Eligible HHW materials for Collection include, but are not be limited to, the following:
Cleaning products: ammonia, floor stripper, oven cleaners, rug, upholstery and floor
cleaners, tile and shower cleaners, furniture polish, drain cleaners, rust remover, naval
jelly and solvents.
Automobile maintenance products: car waxes and polishes, starting fluids, solvent
cleaners, antifreeze, repair products, vehicle batteries, brake fluid, transmission fluid,
windshield washer fluid, hydraulic fluid, motor oil, oil filters and gasoline and diesel fuel.
[Gasoline and diesel fuel must be placed in containers designed and sold for the
containment and transportation of fuel, maximum of ten (10) gallons]
Home maintenance and improvement products: oil-based stains, and paints, liquid latex
paint, caulking, varnish, paint thinners, chemical strippers, spray paint, artist paint, insect
repellants, insecticides, pesticides, poisons, rat poison, kerosene, lighter fluid, and pool
chemicals, pool acid and chlorine (tablets or liquid), hobby glue, driveway sealer
[maximum of five (5) gallons].
Personal care items: nail polish and remover, hair color.
Electronic Waste items: video display devices such as televisions, television screens,
computer monitors, plasma television screens, computer-related items, printers, copiers,
scanners, multi -function desktop machines (such as a combination printer/fax/copier),
stereos, speakers, cables, computer CPU's, LED screens and monitors, computer
keyboards, computer mouse, LED bulbs, VCR's, DVD/CD/tape players, cellular
telephones, ipods, tablet computers, MP3 players, Gameboys, remote controls for
Attachment B Scope of Work Page 22 of 38
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electronic devices, microwave ovens, toasters, irons, and all other corded appliances and
corded devices.
Universal Waste items: AA, AAA, C Cell and D Cell batteries; fluorescent tubes and bulbs
and other mercury containing lamps (including high intensity discharge [HID], metal
halide, sodium and neon bulbs); mercury containing devices such as thermostats,
switches, thermometers, and relays (including those found in pre -1972 washing
machines, sump pumps, electric space heaters, clothing irons, and silent light switches);
pilot light sensors from gas appliances; mercury gauges from barometers, manometers,
blood pressure and vacuum gauges; mercury -added novelty items such as greeting cards
that play music when opened, athletic shoes with flashing lights in the soles, and mercury
maze games; emptied aerosol cans.
Sharps, such as needles, lancets and syringes. [Sharps must be placed into a rigid
sealed, puncture resistant container for Collection.]
Pharmaceutical wastes shall be included if and when state law has been revised to permit
Collection of these materials under this type of collection program.
Ineligible materials for the HHW Door -to -Door program include, but are not limited to, the
following: biological waste, ammunition and explosives, appliances, asbestos,
commercial chemicals, construction related materials, containers over five (5) gallons
(with the exception of fuel described above), fire extinguishers, Food Scraps, cooking oil
and grease, gas cylinders/pressurized cylinder, liquid mercury/elemental mercury and
broken items that contain mercury, materials improperly packaged for Collection and
transportation, materials in leaking containers, radioactive materials, tires, MSW, Bulky
Items, unknown or unlabeled materials.
In the event of a dispute between Contractor and a Customer as to whether a material is
eligible for Collection by the Door -to -Door HHW program, the decision of the City shall be
final.
Contractor shall provide an unlimited number of HHW Collections from Residences per
calendar year at no charge to Residents. Contractor shall invoice the City for the cost of
the HHW Door -to -Door program as set forth in Attachment D-1. As of the Effective Date
the monthly charge to the City for the HHW Door -to -Door program is eleven thousand,
four hundred thirty-one dollars ($11,431) per month.
Contractor shall Divert a minimum of eighty percent (80%) of all Collected HHW from
Disposal by use of in-house resources (if Contractor is fully licensed and holds all required
permits to do so) and/or use of third parties that are properly licensed and possess all
required permits under local, state and federal law and regulations for Recycling, treating,
and otherwise handling HHW to Divert it from Disposal. Contractor shall Dispose of any
non-Divertible HHW in accordance with all local, state and federal regulations and only at
properly permitted HHW Disposal facilities operating in accordance with all applicable
local, state and federal laws and regulations.
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Attachment B Scope of Work
Contractor shall maintain records of the Customers requesting HHW Collections, the
number of Collections requested by each Customer, the number of Collections provided
by Contractor, addresses of each Collection, the number, types, and quantities of HHW
delivered for Diversion, the third party Persons or organizations where HHW was
delivered for Diversion, and the quantities and types of HHW Disposed, including the
licensed and permitted Disposal sites where HHW was Disposed. The number of
Collections, types of HHW, quantity of each type of HHW and the total quantity of HHW
Collected, Diverted and Disposed each month shall be included in Contractor's Monthly
Report as described in Attachment K. Contractor shall submit additional records to the
City upon request. Contractor shall create and maintain all transportation manifests,
records, lists and all other documentation for HHW Collection, transportation and Disposal
that are required by local, federal and state laws and regulations. Contractor shall provide
pollution control insurance as described in Section 10 of the Agreement.
3.3 Holiday Greenery Collection and Recycling.
Contractor shall collect, at curbside or in alley locations, Christmas trees and other holiday
greenery for three (3) full weeks from December 26 through January 15 of each year of
the Term. (After this period trees shall be Collected as Bulky Items.) Trees up to six feet
(6') in length shall be Collected and Diverted without Customers being required to cut
them. Contractor may request that Customers with larger trees cut the trees into pieces
no longer than six feet (6') by placing such information in the postcard or brochure
advertising the program and/or by tagging the tree stating it must be cut into smaller
length(s). Contractor shall prepare a brochure or postcard informing residents of such
Collection service. Contractor shall submit a draft of the brochure or postcard to City for
review and approval by October 1 of each year of the Term. The brochure or postcard
shall be prepared and mailed first-class postage, and shall be professionally designed
and mailed so that residents receive the brochure or postcard not later than December
10. Residents shall be instructed on how to prepare Holiday Greenery for Recycling
including removing all ornaments, lights and tinsel. Holiday Greenery which complies
with these instructions shall be delivered by Contractor to the City designated Compost
Facility or other City -designated Processing Facility.
Contractor is prohibited from delivering Holiday Greenery Collected in City and any
Compost or mulch created from Holiday Greenery Collected in City, to any landfill for use
as ADC.
Trees and greenery that have been flocked or are Contaminated by ornaments, lights
and/or tinsel shall be delivered to the City designated Disposal Facility for Disposal.
Contractor shall provide City a written report by February 15 of each year of the Term,
listing the Tons of Christmas trees and holiday greenery collected, the Tons delivered to
the Compost Facility or other City -designated Processing Facility and the Tons delivered
to the Disposal Facility. Contractor shall provide City with copies of weight tickets from
the Compost Facility or other City -designated Processing Facility and from the Disposal
Facility as documentation of the Tons Diverted and Disposed.
Attachment B Scope of Work Page 24 of 38
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Attachment B Scope of Work
3.4 Sharps Collection.
Contractor shall provide Customers with pre -paid, postage -paid mail -back Sharps
containers to safely store used Sharps and send Sharps for proper disposal. Customers
shall be provided with a toll-free number to call to arrange to receive the pre -paid,
postage -paid mail -back Sharps container mailed to their Residence. Contractor shall also
make Sharps pre -paid postage -paid mail -back Sharps containers available at a pick-up
location in the City (such as the Senior Center) as an alternative for the Customer.
Contractor shall ensure that all Sharps are being properly disposed by the Persons or
organizations that Contractor has subcontracted with to provide the Sharps collection and
disposal service and that such disposal methods meet all applicable local, state and
federal laws and regulations regarding Sharps handling and disposal.
At Contractor's option, and if Contractor holds all required state, local and federal permits
and licenses to do so, Contractor may also Collect Sharps that are properly containerized
as part of the Door -to -Door HHW Collection program described in Section 3.2. of this
Attachment B.
Contractor's public education materials shall annually inform Customers about the
availability of the Sharps collection program and shall emphasize the importance of
keeping Sharps out of the MSW, Recyclable Materials and Food Scrap/Green Waste
Carts. Contractor shall also advertise the program on its web site.
Contractor shall provide a monthly and annual report to the City on the number of Sharps
pre -paid mailer kits provided to Customers both through home delivery of kits and by
Customer pick-up at the in -City pick-up location. The report shall also list the number of
Sharps containers mailed back for proper Disposal and the number (if any) Collected by
Contractor as part of the Door -to -Door HHW Collection program. Contractor shall be
compensated for the Sharps program as shown in Attachment D-1.
3.5 Community Shredding Events.
Contractor shall advertise and conduct two (2) shred events each calendar year during
the Term. The first shred event shall be held during the first six (6) months of calendar
year 2022 and the second event shall be held during the second six (6) months of
calendar year 2022. During each shredding event, Residents of City may bring an
unlimited quantity of paper for shredding. Contractor shall arrange the in -City location(s)
for such events and shall provide all required labor, equipment, traffic control and other
needed elements for such events. At Contractor's discretion, or if so directed by City,
Contractor may require participants to show evidence of residence within the City (for
example by providing a driver's license, utility bill or other documentation that the
Customer resides within Newport Beach). Event dates shall be mutually agreed to by the
City and the Contractor. Contractor shall advertise the events through its website and
through mailings and other public outreach methods described in Section 4 of this
Attachment B. If Contractor or City chooses to require proof of City residency at the
events, Contractor shall include this requirement in all public education materials prior to
each community shredding event.
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Attachment B Scope of Work
Contractor shall ensure that all paper delivered by Customers to the community shredding
events is properly shredded and Recycled. Contractor shall provide a report to the City
within thirty (30) days after each event listing the number of participants and the quantity
of paper received, shredded, and Recycled as well as the name of the subcontractor used
for the shredding/secured destruction and recycling of the paper. Contractor shall provide
the community shredding events at no additional cost to the City or to Customers.
3.6 Annual Compost Giveaway Event.
Each calendar year during the Term, Contractor shall provide one (1) free Compost
distribution event within the City for Residential Customers. The Compost product shall
be bagged. The Compost shall be laboratory tested and shall meet the U.S. Composting
Council's Seal of Testing Assurance standards. Laboratory test results of the product(s)
to be distributed shall be submitted to City a minimum of fifteen (15) days prior to each
distribution event. City shall notify Contractor at least sixty (60) days in advance of the
Compost giveaway event. The parties shall coordinate regarding the location and timing
for the delivery of the Compost. Contractor shall provide two (2) loads consisting of a total
of forty-eight (48) pallets of bagged compost per event. [One (1) load contains twenty-
four (24) pallets and each pallet contains approximately forty-eight (48) bags of Compost.]
It is planned that a maximum of two (2) bags of Compost shall be provided to each
Resident.
If desired, City may purchase additional pallets of bagged Compost from Contractor at
the prices listed in Attachment D-1.
If possible, Contractor shall provide Compost made from Food Scraps and Green Waste
Collected and processed in California and/or Compost produced at Contractor's Compost
Facility described in Attachment P and shall report the origin of the mulch or Compost to
the City for use as part of City's SB 1383 procurement requirements in CCR Chapter 12,
Article 12, Section 18993.1.
Contractor shall promote the event through its website and through mailings and other
public outreach materials described in Section 4 of this Attachment B. Contractor shall
provide City with a report within thirty (30) days following each event listing the number
of participants, the quantity of Compost delivered, and the origin of the Compost.
Contractor shall provide the Compost described herein for the giveaway events at no
additional cost to the City or Residents.
3.7 Summer Saturday Collection Service.
In addition to the one (1) time weekly Collection of MSW provided as described in
Section 2 of this Attachment B, Contractor shall provide a second weekly Collection of
MSW on Saturday during the period from two Saturdays prior to July 4 of each year
through the Saturday prior to Labor Day. The areas of the City that shall receive such
Summer Saturday MSW Collection service are shown in Attachment S, and also include
City -designated Residences on Balboa Island. City will periodically provide Contractor
with updated lists/maps of the City -designated Residences on Balboa Island that shall
receive Summer Saturday service. For all Customers receiving Summer Saturday
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Collection service, the regular year -around weekly Collection day shall not change
during the Summer Saturday Collection period.
The cost for providing Summer Saturday MSW Collection service described herein is
included in Contractor's compensation shown in Attachment D-1.
In the event that state enforcement of SB 1383 regulations regarding Diversion of
Residential Recyclable Materials and/or Food Scraps and/or Green Waste requires the
addition of either the Collection of Recyclable Materials and/or Food Scraps/Green
Waste to the Summer Saturday Collection service, or if the City, in its sole discretion,
would like to add Summer Saturday Collection of these materials at the Residences
described herein, the parties agree that the procedures in Section 4.13 ("City's Right to
Change Scope of Work") and Section 12.06 ("Adjustments to Contractor Compensation
Based on City -Directed Changes in Scope of Work") of the Agreement shall be
followed. The adjustment to Contractor's compensation shall be calculated based upon
the additional incremental cost of adding Summer Saturday Collection of Recyclable
Materials and/or Food Scraps/Green Waste to the Residences described in this Section
3.7.
3.8 City Services.
Contractor shall provide all of the following services during the Term of the Agreement.
3.8.1 City Sponsored Special Events.
Contractor shall provide suitable containers (bins and/or roll off boxes) for MSW and
Recyclable Materials at two (2) City -sponsored Special Events each year. These events
are likely to be the City's Fourth of July celebration and the Corona Del Mar 5K run,
however, City may, in it's sole discretion, change the events at which the service shall
be provided. Contractor shall Collect the MSW and Recyclable Materials containers in
a timely manner and shall process all Recyclable Materials and shall Dispose of all
MSW. Contractor shall provide a report to the City within thirty (30) days after each
Special Event listing the Tons of Recyclable Materials Collected and Diverted and the
Tons of MSW Collected and Disposed from the event.
The cost for providing the Collection services described in this Section 3.8.1 is included
in Contractor's monthly compensation in Attachment D-1.
If City desires Contractor to provide such services at additional Special Events, and/or
to provide Food Scrap Collection services at the two (2) City -sponsored Special Events
described herein, the parties agree the additional compensation to Contractor shall be
determined using the procedures in Section 4.13 ("City's Right to Change Scope of
Work") and Section 12.06 ("Adjustments to Contractor Compensation Based on City -
Directed Changes in Scope of Work") of the Agreement.
3.8.2 Abandoned Item Collection, Alley Sweeps and City Litter Containers.
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Attachment B Scope of Work
City crews collect abandoned items from public rights-of-way and place the items at the
City's Transfer Station and/or at the City yard. Third party City vendors collect MSW
from City and park litter containers and deliver it to either the City's transfer station or
the City yard, as directed by the City. Contractor shall Collect, Divert (where feasible)
and Dispose of all abandoned items and City/park litter container MSW placed for
Collection at both the City Transfer Station and the City yard. Contractor shall
coordinate with City to ensure timely Collection of such materials from the Transfer
Station and the City yard. The cost for providing the Collection services described in
this Section 3.8.2 is included in Contractor's monthly compensation in Attachment D-1.
3.8.3 Emergency Collection and Disposal Service.
In the event of a natural disaster or other unforeseen emergency situation (e.g.
earthquake, riot, or flood) Contractor shall, to the best of Contractor's ability, provide
emergency services to City within four (4) hours of notification by the City. Emergency
services may include, but are not limited to, loading, collecting and hauling MSW,
Construction and Demolition Debris (including but not limited to flood and earthquake
debris), and large items to processing facilities, landfills or stockpiles as directed by City.
Contractor shall provide, at a minimum, Collection vehicles, drivers and other personnel
regularly assigned to the City, and shall also provide additional equipment, vehicles and
personnel if available. Contractor shall be compensated directly by City for these services
at the emergency service costs set forth in Attachment D-1. Emergency services costs
reflect the hourly rate for one Collection vehicle and a two (2) person crew.
In the event that Contractor is unable to provide emergency services or is unable to
provide sufficient or timely emergency services to City, City reserves the right to contract
with another solid waste enterprise or any other Person on a temporary basis to collect,
transport, stockpile, Divert and/or Dispose of MSW, Construction and Demolition Debris
and all other materials as needed for City to protect the public health, safety and welfare.
3.8.4 Compost and Wood Chips for City.
Contractor shall, at no additional cost, provide the City with Compost for City's use in
municipal open areas, landscaped medians, parks and other similar areas. Contractor
shall provide up to six (6) loads (each load consisting of one (1) forty cubic yard container
full of Compost) at no additional cost to City each calendar year. Contractor shall, if
additional Compost is available, provide additional Compost for purchase by City at the
cost listed in Attachment D-1.
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SECTION 4: PUBLIC INFORMATION AND CONSUMER EDUCATION.
General. The parties agree that comprehensive, accurate information and consumer
education are critical requirements of the Act and are, therefore, essential for City's
compliance with the Act, especially given implementation of the new Food
Scraps/Green Waste Diversion Program for all Residents in City.
4.1 Joint Public Outreach Plan. City and Contractor have jointly developed a public
outreach plan for rollout of the new Food Scrap/Green Waste program as shown in
Attachment C. City and Contractor have also developed a on-going public outreach
plan for the remainder of the Term of the Agreement as shown in Attachment X.
As shown in Attachments C and X, the parties have divided the public outreach effort
between themselves, with each party preparing and distributing specified public
outreach items (e.g. brochures, video, social media content, pop up events, etc.)
Contractor shall prepare and distribute all public outreach items that Contractor is
responsible for in Attachments C and X within the timeframes specified in said
Attachments. In the event Contractor fails to prepare and distribute the public outreach
items it is responsible for in the timeframes listed in Attachments C and X, the liquidated
damages in Section 13.09 of the Agreement shall apply.
4.2 Professionally Designed and Produced Public Outreach Materials. In creating
the public education materials listed in Attachments C and X, Contractor shall
professionally design, print and/or produce said materials such that they are attractive,
easy to read, and evidence a professional design and layout. Materials shall be a
minimum of 4 -colors unless a more simple color scheme is more appropriate. The
content, design and layout of all public education materials prepared by Contractor shall
be submitted to the City for review and approval a minimum of thirty (30) days prior to
printing/production. In cases where the initial program rollout schedule requires a
shorter review period for the City, City will make reasonable efforts to reduce the time
for its review. Examples of such instances include the brochures and other written
materials plus the video for the Food Scrap/Green Waste program, Containerization
rules, change of Collection day, information on new Carts, Extra Carts, Valet service,
"right -sizing" the number of Carts and other changes taking place from the Effective
Date through April 2022.
4.3 Specific Outreach Campaigns.
4.3.1 Route Optimization Outreach
As described in Section 1.3 of this Attachment B, Contractor shall implement new
optimized Collection Routes on January 31, 2022. Contractor sent a direct-mail piece to
all Residents that will experience a Collection day change. This notification, sent on
approximately January 7, 2022, included the following components:
Reasons why the route change is occurring.
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Attachment B Scope of Work
Current service day for the Customer.
New service day for the Customer.
Effective date of route changes.
Link to online service day map showing current and proposed
service days.
A brief summary of the new Food Scrap/Green Waste program
Note that there will be more information coming regarding the
new Food Scrap/Green Waste Collection program.
During the week of January 24, 2022, Contractor shall "robo-call" all Residents who will
experience a Collection day change with a pre-recorded telephone message telling
them of the change in service day. Contractor will also "robo-call" all Residents who will
experience a Collection day change, with an additional reminder using a pre-recorded
telephone message, during the week of January 31, 2022.
4.3.2 Outreach For New Co -Collected Food Scrap/Green Waste Program
As described in Section 2 of this Attachment B, Contractor shall implement a Co -
Collected Food Scrap/Green Waste Diversion program for all Residents beginning
January 31, 2022. The delivery of the Food Scrap/Green Waste Carts shall commence
on January 31, 2022.
4.3.2.1. Food Scraps and Yard Trimmings Recycling Guide. Attached to all Food
Scrap/Green Waste Carts shall be a Food Scrap and Green Waste Recycling guide
prepared by the Contractor. The Food Scrap and Green Waste Recycling guide, shall,
at a minimum, include:
o Acceptable materials to include in Food Scrap/Green Waste Cart and
materials to keep out of the Food Scrap/Green Waste cart (including a
chart or graphic that the Resident can keep and refer to).
o Compostable bag guidelines for kitchen pail and what materials not to use
(e.g. lining the pail with a compostable bag or newspaper is acceptable,
lining it with a plastic bag is not)
o Direction encouraging Customers to use the kitchen pail and Cart
immediately
o How to contact Contractor with questions (including via telephone, e-mail
and website).
o QR code for instructional video on how to use the kitchen pail and Food
Scrap/Green Waste Cart.
o Links to City and CR&R website and FAQs.
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Attachment B Scope of Work
A draft of the Food Scrap/Green Waste Recycling guide that will be attached to each
Food Scrap/Green Waste Cart shall be provided to the City no later than January 1,
2022 for review.
4.3.2.2 Food Scraps and Green Waste Toolkit for Inclusion in Kitchen Pail
As described in Section 2 of this Attachment B, Contractor shall also distribute kitchen
pails to all households. To accompany the kitchen pails, Contractor shall prepare a printed
toolkit that includes an explanation and/or diagram showing how Residents will store Food
Scraps in the "Sure Close TM" Containers and then empty the contents into the wheeled
Food Scrap/Green Waste Cart. The materials will also clearly describe what Food Scrap
and Green Waste materials are accepted in the program and what should be excluded.
This guide shall be placed inside the kitchen pails when distributed to Customers. Kitchen
Pail Toolkit shall include a QR code for instructional video on how to use the kitchen pail
and Food Scrap/Green Waste Cart. Contractor shall provide answers to residents'
questions and shall also provide a method for residents to ask and receive prompt
answers to follow-up questions about the program via telephone, e-mail or text, and
Contractor's web site.
A draft of the Food Scrap/Green Waste Recycling toolkit that will be included in each
Kitchen Pail shall be provided to the City no later than January 15, 2022 for review.
4.3.2.3 Food ScrapsNard Trimming Recycling Program `How-to' Film. On or before
January 31, 2022, CR&R shall professionally produce a 3-5 minute `how-to' video to
educate residents about the curbside Food Scraps/Green Waste Collection program. The
video shall include the following components and should adhere to the City's style -guide
and branding:
• Food Scrap Collection
o Which items are acceptable in the program, with an emphasis on the
acceptance of food -soiled paper, meat, diary, fish, eggs, and compostable
plastics.
o Which items cannot be included in the program
o How to line the kitchen pail and what types of materials can be used as a
liner
o Where the kitchen pail can be emptied
o Helpful hints and reminders to remove packaging from food items deposited
in the kitchen pail/Cart, to use the kitchen pail while cooking, to use the
kitchen pail when cleaning out the refrigerator
o How the Food Scraps are ultimately processed and the environmental
benefits of Composting as opposed to landfilling Food Scraps
o Footage of the Composting facility, Collection vehicles, kitchen pails being
deposited into the Food Scraps/Green Waste Cart, Food Scrap/Green
Waste Cart being collected by Contractor's collection vehicles, including the
split body rear -loader
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Attachment B Scope of Work
o How to mitigate odors
o How to wash the kitchen pail
o How to wash the Food Scraps/Green Waste Cart without dumping dirty
water into the storm drain/gutter
• Green Waste recycling
o What materials are acceptable/not acceptable
o Guidelines for use, including maximum acceptable diameter for branches
• Include other SB 1383 -required content, including:
o Information on the methods of prevention of Food Scraps and Green Waste
generation, Composting Food Scraps and/or Green Waste onsite
• Recyclable Materials Collection Program
o How to use the program
o What's acceptable and what is Contamination
o How to properly dispose of HHW, sharps, and E -waste
On or before the Effective Date, the City shall provide Contractor a shooting script for the
`how-to' film. The completed film shall be hosted on the Contractor's website, the City's
website, and shall be distributed through the City's social media channels. The completed
film shall be accessible to residents via a `Quick Read Code' (QR Code) that will be
included in the Recycling guide, the kitchen pail toolkit, and other print materials
pertaining to Food Scraps and Green Waste Recycling education.
The City, in its sole discretion, may fund the production of the training film described
herein. If the City determines that it will take production of the training film `in house',
Contractor shall reimburse the City for up to $6,000 of production costs. Production costs
that shall be reimbursed to the City by the Contractor shall include filming costs, editing
costs, consulting costs to develop the script, City staff time to assist with script
development and production, licenses for stock footage, filming costs for b -roll footage,
etc. City shall submit an itemized invoice to the Contractor for all production costs
associated with the development of the training film described herein. If the City takes the
production of the training video `in house', the City shall notify the Contractor, in writing,
on or before the Effective Date of the Agreement.
4.3.2.4 Food ScrapsNard Trimming Program Social Media Posts. Contractor shall
professionally produce social media posts promoting the Food Scraps/Yard Trimmings
Cart for distribution via the City's social media channels, including Facebook, Instagram,
Twitter, NextDoor, and other channels used by the City. The Contractor shall make use
of graphics and imagery for the social media posts to engage with social media users and
to make content interactive with a specific `call to action' such as clicking a link to the `how
to' video or visiting the City's Recycling webpage. Contractor shall provide video postings
that include segments of the `how to' video for social media consumption that focus on
helpful tips for use of the Food Scraps/Green Waste Cart and/or kitchen pail (i.e. how to
mitigate odors, how to line your kitchen pail, how to wash your kitchen pail, how to wash
your Food Scraps/Green Waste Cart, etc.). Contractor shall engage a third -party firm to
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create the social media. Contractor shall include targeted advertisements, as needed, in
order to use all the funds allocated to this social media campaign ($6,000). On or before
March 1, 2022, Contractor shall provide the City with its proposed social media calendar,
including 12 posts to distribute during the first six months of the Food Scraps/Green
Waste Cart roll-out (March 15 — September 15, 2022). The posts shall be formatted
appropriately for all social media platforms described herein. City shall provide feedback
to Contractor within 5 calendar days of the posts being presented. Contractor shall
incorporate the City's edits into the posts and present the revised posts to the City by
March 10, 2022.
4.3.2.5. Food Scraps/Green Waste Program Follow-up Mailer
Contractor shall professionally produce an outreach item for direct-mail distribution to all
Customers on by July 1, 2022. The brochure shall use attractive and engaging images
and graphics and shall include images of Food Scrap/Green Waste Carts and kitchen
pails, acceptable materials in the program, extra service information, how to use and store
the Cart, how to use and store the kitchen pail, how to use compostable bags, a link to
both the City and Contractor's website, toll-free number, link or QR code to how-to video,
Extra Cart charge information, Containerization requirements, frequently asked
questions, how to participate in special services such as Bulky Items, sharps, E -waste,
U -waste, different Cart sizes that are available, legislative requirements, and other
content as directed by the City or as appropriate. On or before March 31, 2022, Contractor
shall provide a draft of the follow up brochure to the City. The City shall provide edits and
written feedback on the draft brochure no later than April 14, 2022. Contractor shall
incorporate the edits and send the final version to the City no later than May 2, 2022. City
shall approve the final brochure by May 16, 2022. Contractor shall print and distribute the
brochure to all Customers in the City on or before July 1 st, 2022.
4.3.3. Extra Services Outreach
Contractor will begin direct -billing Customers that subscribe to Extra Services on April 1,
2022, unless the City directs Contractor to implement the Extra Service Charge Delay
Period described in Section 2.7 of this Attachment B. Prior to charging Customers for
Extra Services, Contractor will notify all residents who have Extra Services by January
31, 2022 to allow time for Residents to request removal of Extra, unwanted Carts prior
to be charged for them on April 1, 2022. This notification shall include the following
components:
• Notification that Extra Carts, and standard and premium valet service will
be provided only at an additional charge.
• Extra Service charges become effective April 1, 2022.
• Include pricing for these services.
• How many Carts are included at no charge and the price(s) for Extra Carts
• Process for requesting removal of Extra Carts
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Attachment B Scope of Work
• Notification that if the Customer takes no action, Extra Carts will remain in
place and the Customer will be billed for them
• Information on Containerization requirements
4.4 Ongoing Public Outreach to Be Conducted by Contractor.
Contractor shall, at every reasonable opportunity, work to: familiarize Residents with
essential waste prevention and Recycling concepts and activities; explain benefits of
Recycling, waste prevention, Food Scrap/Green Waste Diversion, Composting and other
forms of diverting MSW; provide data on historic and current diversion activities in City
when coordinated or provided by Contractor; fully and clearly explain services and
programs available to Residents; publicize materials to be collected for Diversion and
diligently pursue expanding markets such that new items, formerly disposed at landfills,
become Recyclable Materials and/or Divertible Materials, and; respond to questions or
requests for more information from Residents. Contractor shall provide and distribute
outreach material in the form of online resources, fliers, cards, magnets or other methods
acceptable to City. All public education materials shall be approved in advance by City.
All printed materials shall be printed on recycled paper. The content of all written materials
to be distributed shall be subject to review and approval of City in advance of
dissemination.
4.4.1 Contractor Mailing Procedures
With the exception of items in Attachments C and X that City is responsible for,
Contractor is responsible for costs associated with developing and distributing public
outreach materials. As Contractor does not bill Customers, City will provide Contractor
with mailing lists for Contractor's use in distributing mailings
4.4.2 On-going Public Education Requirements
Contractor shall provide, at a minimum, the following ongoing public education items
and events:
• City Council Presentations — Upon the written request of City, Contractor shall
provide, at no additional cost to City, at least two (2) presentations to the City
Council regarding new programs, the status of the rollout and implementation of
new Diversion programs required by the Agreement, and other Municipal Solid
Waste and Diversion matters on an annual basis.
• Annual Updated Recycling Guide - Contractor shall professionally update the
Recycling guide which provides Residents with information on all Collection
programs provided by Contractor, for direct-mail distribution to all Customers on
April 1 of each year of the Term. The guide shall use attractive and engaging
images and graphics and shall include images of carts and kitchen pails,
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acceptable materials in the program, Extra Service information, how to use kitchen
pail, how to use compostable bags, a link to both the City and Contractor's
websites, toll-free number, link or QR code to how-to video, Extra Cart charge
information, Containerization requirements, how to participate in special services
such as Bulky Items, sharps, E -waste, U -waste and other HHW Collection via the
Door -to -Door HHW program, different Cart size options, legislative requirements,
and other content as directed by the City or as appropriate. On or before Feb 1 of
each year, Contractor shall provide a draft of the updated guide to the City. The
City shall provide edits and written feedback on the draft updated guide no later
than February 15 of each year. Contractor shall incorporate the edits and send the
final version to the City no later than March 1 of each year. City shall approve the
final updated guide for print and distribution by March 10. Contractor shall print
and distribute the guide to all Customers in the City on or before April 1, 2023 and
each year thereafter.
• Semi -Annual Notice/Newsletter — Contractor shall prepare and distribute two
(2) mailings each calendar year updating Customers on (a) holiday Collection
schedules, (b) holiday tree Collection, (c) Bulky Item Collection, (d) what
materials, such as syringes and other Household Hazardous Wastes (HHW),
should not be placed in MSW Carts, (e information on the Door -to -Door HHW
Collection program, (f) requirements for Containerization of all MSW and
Divertible Materials, (g) availability of Extra Carts and Valet Services, (h)
environmental -related events, and (i) other timely Solid Waste and materials
Diversion information.
• Quarterly Notice/ Newsletter — Contractor prepares a quarterly Orange County
newsletter to support Diversion activities. Contractor shall provide copies of this
newsletter to the City as an insert in City mailings, and/or utility bills, if requested
by City.
• Corrective Action Notice —Contractor shall develop a corrective action
notification form for use in instances where a Customer sets out inappropriate
materials for Collection that explains the appropriate manner for Disposal and/or
Diversion of such items. (For example HHW, Bulky Items.)
• Classroom Education Curriculum —Contractor will provide curriculum to schools
in the City, offering the curriculum to the School District.
4.5 City Right to Participate in Regional or Joint -Jurisdictional Public Education
and Consumer Information Campaigns.
City reserves the right, in its sole discretion, to participate with other jurisdictions in a
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Attachment B Scope of Work
coordinated effort to provide public information and consumer education in order to
produce a more effective result, whether these jurisdictions are or are not provided MSW,
Recyclable Materials and/or Food Scrap/Green Waste Collection and Diversion services
by Contractor. To this end, Contractor shall cooperate with such efforts and shall not
impede City's efforts.
4.6 Website.
Contractor shall create and maintain a website with information on all of the City's solid
waste and Diversion programs and all services provided by Contractor as described in
Section 8.04G of the Agreement.
4.7 Seminars, Workshops, Presentations, Meetings.
Contractor shall ensure the attendance of qualified and knowledgeable employees of
Contractor, on an as -requested basis, at local seminars, workshops, presentations,
meetings and the like, to provide information or discuss matters related to Municipal Solid
Waste and Divertible Materials management.
SECTION 5: DIVERSION PROGRAM MATERIAL STREAMS AND
CONTAMINANTS.
The following table lists the Diversion program material streams to be Collected. This list
includes items to be accepted in each Diversion program and items that are considered
Contamination in each Diversion program. The City may modify this list at any time
during the Term of the Agreement.
Diversion Program Material Streams and Contaminants
Diversion Program
Material Stream
Acceptable Materials
Unacceptable Materials
(Contamination)
Single Stream
Newspaper, phone books,
Paper tissues, paper towels,
Recyclable
catalogs, magazines, brown
paper with plastic coating (i.e.
Materials
paper bags, packaging, egg
photographs, label paper),
cartons, white paper, colored
paper with food, waxed paper,
paper, envelopes (windows
waxed cardboard, foil lined
are not Contamination), junk
paper, Tyvex (non -tearing)
mail, glossy paper, shredded
envelopes, non -paper bags,
paper, carbonless paper,
plastic liners (i.e. cereal bags),
chipboard/boxboard,
windows, mirrors, dishware,
cardboard, wrapping paper,
ceramics, light bulbs,
empty aluminum cans,
fluorescent tubes, wood
empty tin cans, juice
furniture, Styrofoam, MSW,
containers, beer containers,
Hazardous Waste, hard cover
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Wood
Co -Collected Food
Scraps/Green Waste
Attachment B Scope of Work
Attachment B Scope of Work
sauce containers, soda cans,
tuna cans, soup cans, loose
jar lids, empty aerosol, empty
glass beverage containers,
empty glass food containers,
all glass colors, empty CRV
and non-CRV plastic
containers, trays and bottles
#1 through #7, soft cover
books/manuals, milk/juice
cartons, plastic toys, plastic
irrigation or PVC pipe, rigid
plastic sheets or panels,
empty plastic buckets and
baskets, empty plastic flower
pots, plastic crates and carts
Non -treated wood, stained
wood, wood with nails, wood
with small metal items, tree
trunks/stumps/branches
(free from leaf and brush
material)
All food, fruits, vegetables,
meat and bones, poultry,
seafood, shellfish, dairy
products, cheese, eggs and
eggshells, rice, beans,
bread, pasta, coffee
grounds, and plate scrapings
of these materials. In the
event City directs that food -
soiled paper products be
included, add: food soiled
paper towels, tissue
products, paper napkins,
paper plates and cups,
coffee filters, tea bags,
waxed paper, butcher paper,
BPI -certified compostable
utensils, single use PLA
cups, single serve coffee
brewing cups and other
plant -based utensils; paper
take-out boxes and
containers, greasy pizza
Page 37 of 38
books/manuals, pyrex
materials, fiberglass materials,
bubble wrap, tarps, textiles,
clothes, shoes, E -Waste, U -
Waste and small manufactured
goods (e.g. purses, handbags
and backpacks)
Painted wood, lacquered wood,
creosote treated wood, railroad
ties, telephone poles,
excessive nails, large metal
items, Hazardous Waste
Glass, plastics, metal, plastic
wrap, silverware, plates, cups,
glasses, diapers, MSW, Single
Stream Recyclable Materials,
food processing liquids,
Hazardous Waste (including
chlorine, bleaches, ammonia,
other cleaning products) rocks,
dirt, pet waste. Food soiled
paper does not include
polystyrene, plastic -backed
paper, blue -line paper or
blueprints, kitty litter, any paper
containing plastics aluminum
foil or foil -lined food wrap,
"biodegradable plastics" if
considered "Contamination" or
" non-com postable" by
Contractor's Composting
Facility.
Rocks, dirt, sand, plastic bags,
MSW, Single -Stream
20-225
Attachment B Scope of Work
Attachment B Scope of Work
boxes, paper bags and
cardboard and wax -coated
cardboard produce boxes;
Loose green material from
the yard, grass clippings,
leaves, weeds, tree
prunings, bush pruning's,
plant material, tree
trunks/stumps/branches 3"
or less in diameter
Page 38 of 38
Recyclables, pet waste,
Hazardous Waste, tree
trunks/stumps/branches
greater than 3" in diameter
20-226
Attachment C Implementation Plan and Schedule
20-227
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20-227
Attachment C Implementation Plan and Schedule
20.228
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20.228
Attachment D-1
Compensation Schedule
Compensation applicable from January 15, 2022 through June 30, 2022
Basic Service
Monthly Compensation Amount
Customer collection in "2013 Contract Area" in Attachment Q
$333,846.00
Customer collection in "Newport Coast" Area in Attachment Q
$63,416.05
Enhanced SB 1383 -mandated programs (for entire City)
$239,556.68
Bulky item collection
$549.00
Sharps collection program
$2,285.00
HHW door-to-door collection program
$11,431.00
Container pull-out for disabled customers
No charge
Two (2) annual shred days
No charge
One (1) annual compost/mulch giveaway
No charge
Total
$651,083.73
Other Compensation Paid to Contractor on an As -needed Basis
Compensation Amount
Emergency Collection Services - one 2 -person crew and truck (disposal charge to
$138 per hour
be added at actual cost per ton)
Additional Bulk Compost provided by Contractor (if and when available) for
$175 per load
purchase by City. Cost is per forty cubic yard load
Additional Bagged Compost provided by Contractor (if and when available) for
$98.05 per pallet
purchase by City. Cost is per pallet of 48 bags.
Additional Load of Bagged Compost provided by Contractor (if and when
available) for purchase by City. Cost is per load of 24 pallets each consisting of
$2353.26 per load
48 bags of compost.
Hourly Cost Per Additional Temporary Customer Service Representative
$35 per hour
Collection of Non -Containerized Materials During "Grace Period" (See
$2.47 per home/incident
Attachment B Section 2.8 for details on how to bill City for Non -containerization)
Extra MSW Cart Charge paid by City during Extra Service Charge Delay Period
(See Attachment B for details on how to bill City for Extra Cart Charges during
$6.09 per MSW Cart per month
Extra Service Charge Delay Period)
Extra Recycling Cart Charge paid by City during Extra Service Charge Delay
$3.41 per Recycling Cart per
Period (See Attachment B for details on how to bill City for Extra Cart Charges
month
during Extra Service Charge Delay Period)
Extra Food Scrap/Green Waste Cart Charge paid by City during Extra Service
$4.11 per Food Scrap/Green
Charge Delay Period (See Attachment B for details on how to bill City for Extra
Waste Cart per month
Cart Charges during Extra Service Charge Delay Period)
Standard Valet Cart Service Charge paid by City during Extra Service Charge
Delay Period (See Attachment B for details on how to bill City for Extra Service
$8.30 per household per month
Charges during Extra Service Charge Delay Period)
Premium Valet Cart Service Charge paid by City during Extra Service Charge
Delay Period (See Attachment B for details on how to bill City for Extra Service
$27.68 per household per month
Charges during Extra Service Charge Delay Period)
Transfer Station Operating Agreement Payment Payment to City
Monthly payment to City by Contractor - See Attachment W $39,400
20-229
Attachment D-2
Prices Direct -Billed by Contractor to Customers for Extra Services
The following prices are effective from January 15, 2022 through June 30, 2022. Prices are
adjusted annually each July 1 of the Term of the Agreement per Section 12.03 and Attachment
J.
Extra Service
Monthly Price
Notes
Extra MSW Cart
$6.09
Customer receives one (1) MSW Cart as part of
basic service. This price is for the second and all
additional MSW Carts.
Extra Recycling Cart
$3.41
Customer receives up to two (2) Recycling Carts
as part of basic service. This price is for the
third and all additional, Recycling Carts.
Extra Food Scrap/Green Waste
$4.11
Customer receives one (1) Food Scrap/Green
Cart
Waste Cart as part of basic service. This price is
for the second and all additional Food
Scrap/Green Waste Carts.
Standard Valet Cart Service
$8,30
Driver/helper will move Carts up to fifteen feet
(15') from where the truck is stationed.
Includes all Carts at the residence.
Premium Valet Service
$27,68
Driver/helper will move Carts over fifteen feet
(15') from where the truck is stationed.
Includes retrieving and returning Carts from
backyard or side yard. Includes all Carts at the
residence.
Cart Retrieval Service for
No charge
See Attachment B, Section 1.4.6 for Customer
Disabled Customers
eligibility requirements.
Replacement Sure Close'"
$9.95
Each residence receives one (1) kitchen food
Kitchen Food Scrap Pail
scrap pail upon Food Scrap/Green Waste
program startup. Price is for any additional
pail(s).
Removal of Non -containerized
$2.47
Contractor may direct bill residents for the
MSW, Green Waste, and/or
second and subsequent instance of non -
containerization. Contractor must Collect non -
Recyclable Materials
containerized materials encountered by drivers
during collection routes. See Attachment B,
Section 2.8 for details on how Customers are to
be charged.)
Extra Bulky Item Pickup
$13.95
Customers receive five (5) Bulky Item pickups
per calendar year consisting of up to five (5)
Bulky Items in each pickup. Price is for the
sixth and all subsequent Bulky Item pickups in a
calendar year. Price includes up to five (5) Bulky
Items in the pickup.
20-230
ATTACHMENT E
Specifications for Wheeled Carts to be Supplied by Contractor
Cart Design Requirements - The Carts shall be manufactured by injection or rotational
molding and meet the Cart design requirements as specified below
1.1. Cart Manufacturer - Contractor shall provide Toter® brand Carts for Recyclable
Materials to Customers without such carts, as described in Attachment B, Section
1.4.1 and shall provide Toter® brand Carts for Food Scraps/Green Waste to all
Residences as described in Section 2.4.1 of Attachment B. Carts shall have single -
piece product design with no seams and consistent wall thickness. Contractor shall
endeavor to provide Toter® brand Carts for MSW, Recyclable Materials and Food
Scraps/Green Waste throughout the Term, in order to create a uniform appearance
of Cart aesthetics, shape and colors throughout the City. If, after making reasonable
and timely efforts to obtain replacement Toter® brand Carts during the Term (and
only after the initial purchase and distribution of Toter® brand Carts described herein
has been accomplished by Contractor) Contractor may request City approval to
provide replacement Carts from another manufacturer. City shall determine, in its sole
discretion, whether the quality, features, sizes, Cart and lid colors and other
characteristics of such Carts are equal to those of the Toter® Carts and whether the
proposed Carts meet the specifications in this Attachment E.
1.2. Capacity — Contractor shall provide Carts in three sizes for residential MSW,
Recyclable Materials, and Yar Food Scraps/Yard Trimmings Collection. The Carts
shall be uniform in appearance and Contractor shall provide the following sizes:
• 32 -gallons
• 64 -gallons
• 96 -gallons
1.3. Cart Handles — The Cart handles and handle mounts may be an integrally molded
part of the Cart body or molded as part of the lid. Bolt -on handles are acceptable for
all Carts except for those that will accept Food Scraps. The Cart handles will
provide comfortable gripping area for pulling or pushing the Cart or lifting the lid.
Pinch points are unacceptable.
1.4. Cart Lid — Each Cart shall be provided with a lid that continuously overlaps and
comes in contact with the Cart body or otherwise causes an interface with the Cart
body that simultaneously:
• Prevents the intrusion of rainwater, rodents, birds, and flies;
• Prevents the emission of odors;
• Enables the free and complete flow of MSW, Recyclable Materials and Food
Scraps/Green Waste from the container during the dump cycle without
interference with the material already deposited in the truck body or the truck
body itself and its lifting mechanism;
• The lid handle shall be an integrally molded part of the lid;
• Permits users of the Cart to conveniently and easily open and shut the lid
throughout the serviceable life of the Cart;
• The lid (and body) must be of such design and weight that would prevent an
empty Cart from tilting backward when flipping the lid open;
Attachment E Page 1 of 5
20-231
ATTACHMENT E
Specifications for Wheeled Carts to be Supplied by Contractor
• The lid shall be hinged to the Cart body in such a manner so as to enable the
lid to be fully opened, free of tension, to a position whereby it may rest
against the backside of the Cart body; and
• The lid shall be designed to be easily removed in the event of damage or
failure. The hinge assembly shall not be capable of being readily removed by
the public by hand or with ordinary tools.
1.5. Foot -Hold — Each Cart shall have a foot -hold area on the back of the Cart to allow
for foot placement so as to assist in tilting back the Cart prior to rolling it. If Food
Scraps are being placed in the Cart, the foot hold holes shall be sealed so that Food
Scrap liquids do not leak through the holes.
1.6. Stop bar — Each Food Scrap/Green Waste Cart shall have a molded, sealed stop
bar that prevents leakage.
1.7. Cart Colors — All carts shall be Toter® with granite -colored bodies. The MSW,
Recyclable Materials, Food Scraps/Green Waste Carts will be differentiated by lid
color. MSW carts shall have a black lid, Recyclable Materials carts shall have a
light -blue lid, and Food Scraps/Green Waste Carts shall have a green lid. The colors
shall be colorfast and resistant to fading as a result of weathering or ultraviolet
degradation. Carts shall comply with this CalRecycle color -scheme on or before the
dates in Attachment B, Section 1.
1.7.1. Phase-out of Existing Carts by Attrition - As of the Effective Date,
residents in the areas of the City labeled "2013 Contract Area" in the Map in
Attachment Q have Carts of the following colors and style: MSW Carts
manufactured by Toter® with a granite color body and a black lid; Recycling
Carts manufactured by Toter® with a granite body and a dark blue lid.
Residents in the areas of the City in Attachment Q labeled "Newport Coast
Area" have MSW Carts manufactured by Roto with black bodies and lids.
Recycling Carts have brown bodies and lids. Contractor shall phase in
replacement Carts by attrition, such that when existing Roto carts require
replacement, a new Toter® Cart (either granite with a black lid for MSW or
granite with a light blue lid for Recyclable Materials) will be provided to the
Customer, and the old Roto Cart will be Collected by Contractor and either
Recycled or Disposed. When existing Toter® Carts with granite bodies and
dark blue lids require replacement, Contractor will provide the Customer with a
new Toter® Cart that is granite in color with a light blue lid and a Recycling
decal. Granite colored Toter® Carts with green lids and decals for storage of
Food Scraps and Green Waste, will be provided to Customers as described in
Attachment B, Section 1. The ultimate goal of the City is to achieve a uniform
color scheme for all Carts with granite colored Toter® Carts for each material;
black lids for MSW, light blue lids with Recycling decals for Recyclable
Materials, and green lids with Food Scrap/Green Waste decals for those
materials.
Attachment E Page 2 of 5
20-232
1.8. Wheel Design and Axle Assembly — Each Cart shall be equipped with an axle and
two wheels, positioned on the bottom of the Cart to facilitate it being pushed or
pulled with little effort with load weights up to its maximum load capacity as set forth
in Section 2.2 of this Attachment E. If Food Scraps are being placed in the Cart, the
axel holes shall be sealed so that Food Scrap liquids do not leak through the holes.
1.9. Identification Markings — For all new Carts distributed during the Term of the
Agreement, the following markings shall be permanently marked on the exterior lid
of each container in character size of no less than one (1) inch, the phrases:
In character size in the range of 1/4 to 314 inch, the following phrases:
DO NOT PLACE FLAMMABLE PRODUCTS
OR HOT ASHES IN THIS CONTAINER
DO NOT DISPOSE OR HAZARDOUS MATERIALS
IN THIS CONTAINER
NO PONGA PRODUCTOS INFLAMABLES O CENIZAS EN ESTE NO PONGA
MATERIALS PELIGROSOS EN ESTE RECIPIENTE
In character size in the range of 1/4 to 3/4 inch, the following item:
IDENTIFICATION CODE
The following markings shall be on the backside of the Cart.
In character size of no less than 1/4 inch, the phrase:
DO NOT TILT OR ROLL CONTAINER WITH LID OPEN
NO RUEDE EL RECIPIENTE CON LA TAPA ABIERTA
An arrow (at least 3 inches by 5 inches) shall be placed on the lid, indicating the
direction of Cart placement.
In character size of no less than 3116 inch, the phrase:
PLACE CONTAINER WITH ARROW FACING STREET FOR COLLECTION
COLOQUE EL RECIPIENTE CON LAS FLECHAS HACIA LA CALLE
10. Sticker Attachment Area - Cart lids shall have a molded depression no less than
5 inches tall and 11 inches wide where the Contractor shall attach a color, weather-
proof adhesive label indicating the materials accepted in each of the Carts. Decals
shall comply with the specifications set forth in Attachment B, Section 1.
Attachment E Page 3 of 5
20-233
11. Additional Parts — All parts necessary for the Cart to be complete and ready for
operation and use by the residents of the City shall be furnished by the Contractor.
12. Replacement Parts — All replacement and repair parts and components shall be
of the same or better quality as the original parts provided to the City and must meet
the same requirements as set forth in Section 2 of this Attachment E — Cart
Performance Requirements.
2. Cart Performance Requirements — All Carts shall be designed and manufactured to meet
the minimum performance requirements described below.
2.1 Minimum Service Life — Carts shall have the capability for continual, uninterrupted use
as MSW, Recyclable Materials and Food Scrap/Green Waste Carts in Residential
applications as set forth in the Agreement for a minimum period of ten (10) years,
herein referred to as the "Minimum Service Life." The Minimum Service Life shall be
measured from the date of delivery or distribution.
2.2 Cart Load Capacity — Depending on the capacity, the Carts shall have a minimum load
capacity as noted below without Cart distortion, damage, or reduction in
maneuverability or any other functions as required herein.
Cart Size (Gallons)
Minimum Load
Capacity (LBS)
96
200
64
130
32
70
2.3 Cart Durability — Carts shall remain durable, and at a minimum, shall meet the follow
durability requirements to satisfy its intended use and performance, for a period of ten
(10) years:
• Maintain its original shape and appearance;
• Be resistant to kicks and blows;
• Require no routine maintenance and essentially be maintenance free;
• Not warp, crack, rust, discolor, or otherwise deteriorate over time in a manner
that will interfere with its intended use;
• Resist degradation from ultraviolet radiation;
• Be incapable of penetration by biting or clawing of household pets (i.e., dogs
and cats);
• The bottoms of Cart bodies must remain impervious to any damage, that
would interfere with the Cart's intended use after repeated contact with
gravel, concrete, asphalt or any other rough and abrasive surface;
Attachment E Page 4 of 5
20-234
• All wheel and axle assemblies are to provide continuous maneuverability and
mobility as originally designed and intended; and,
• Resist degradation by other airborne gases or particulate matter currently
present in the ambient air of the City.
2.4 Chemical Resistant — Carts shall resist damage from common household or residential
products and chemicals. Carts, also, shall resist damage from human and animal urine
and feces.
2.5 Stability and Maneuverability — The Carts shall be stable and self -balancing in the
upright position, when either empty or loaded to its maximum design capacity with an
evenly distributed load, and with the lid in either a closed or open position.
All Carts shall be capable of maintaining the upright position in sustained or gusting
winds of up to 25 miles per hour as applied from any direction.
The Carts shall be capable of being easily moved and maneuvered, with an evenly
distributed load equal in weight to its maximum design capacity on a level, sloped or
stepped surface.
2.6 Lid Performance — Cart lid assemblies shall meet the following minimum requirements:
• Prevent damage to the Cart body, the lid itself, and to any component parts
through repeated opening and closing of the lid by Residents or in the
dumping process as intended;
• Remain closed in winds up to 25 miles per hour from any direction. All lid
hinges must remain fully functional and continually hold the lid in the original
designed and intended positions when either opened or closed; and,
• Lids shall be designed and constructed such that it prevents physical injury to
the user while opening and closing the Cart.
2.7 Reparability — Minor cracks, holes, and other damages to hinges, wheels, axle,
hardware, and other component parts shall be readily repairable by the Contractor's
personnel with minimum training and supervision. All repairs shall be capable of being
performed by one person in the field. All repairs must restore the container to its full
functionality to meet the design and performance requirements as set for herein.
3. Cart Ownership and Maintenance Responsibilities — The Company shall be responsible for
Cart repair and maintenance, graffiti removal, and replacing lost, stolen or damaged Carts at
no additional charge to the Customer or to the City. Contractor shall own the Carts during
the Term. The City reserves the right to have the Contractor remove the carts at the end of
the Term at no charge to the City.
Attachment E Page 5 of 5
20-235
ATTACHMENT F
List of Vehicles to be Provided by Contractor
Note: The costs (including, but not limited to, capital cost, repair and maintenance) for all listed
vehicles and replacements are included in the Contractor compensation shown in Attachment
D-1 pursuant to the negotiations conducted between the parties for this Agreement. Vehicle
identification numbers marked as "TBD" shall be provided to CITY by Contractor on or before
the Effective Date of the Agreement.
Residential Collection Vehicles as of the Effective Date and Planned Replacement Dates
Vehicle
Type
Vehicle
ID
Number
Manufacturer
Truck/Body
Model
Year
Route
Type of Fuel
(e.g., CNG,
biodiesel,
LNG, etc.)
Planned
Replacement
Year
Truck
Body
Split Body
TBD
Peterbilt
Kann
1 2021
RCY/Organic
RNG
2029
Split Body
TBD
Peterbilt
Kann
2021
RCY/Organic
RNG
2029
Split Body
TBD
Peterbilt
Kann
2021
RCY/Organic
RNG
2029
Split Body
TBD
Peterbilt
Kann
2021
RCY/Organic
RNG
2029
Rear -loader
67-67
Ford
McNeilus
2016
MSW
RNG
2024
Rear -loader
67-68
Ford
McNeilus
2016
MSW
RNG
2024
Rear -loader
67-65
Ford
McNeilus
2016
MSW
RNG
2024
Side -loader
57-347
Peterbilt
Amrep
2015
MSW
RNG
2023
Side -loader
57-350
Peterbilt
Amrep
2015
MSW
RNG
2023
Side -loader
57-351
Peterbilt
Amrep
2015
MSW
RNG
2023
Side -loader
57-337
Peterbilt
Amrep
2014
MSW
RNG
2022
Side -loader
57-338
Peterbilt
Amrep
2014
MSW
RNG
2022
Side -loader
TBD
Peterbilt
Amrep
2021
Recycling
RNG
2029
Side -loader
57-338
Peterbilt
Amrep
2014
Recycling
RNG
2022
Side -loader
57-339
Peterbilt
Amrep
2014
Recycling
RNG
2022
Side -loader
57-340
Peterbilt
Amrep
2014
Recycling
RNG
2022
Side -loader
TBD
Peterbilt
Amrep
2021
Organics
RNG
2029
Side -loader
TBD
Peterbilt
Amrep
2021
Organics
RNG
2029
Side -loader
TBD
Peterbilt
Amrep
2021
Organics
RNG
2029
20-236
ATTACHMENT F
List of Vehicles to be Provided by Contractor
Shop, Maintenance and Administrative Vehicles
Vehicle Type
Vehicle Number
Application
Make
Model Year
Type of Fuel
Truck
1148
Route
Manager
Toyota
2017
Gasoline
Truck
1148
Maintenance
Toyota
2017
Gasoline
Door-to-door HHW and Bulky Item Collection Vehicles
Vehicle Type
Vehicle
Manufacturer
Model
Route
Type of Fuel (e.g.
(note split
ID
Truc ody
Year
CNG, biodiesel,
body if
Number
LNG, etc.)
Truck
Body
applicable
Flatbed
53361
PETER
Front
2016
Bulky
RNG
BUILT
loader
Flatbed
6240
FORD
650
2013
HHW
RNG
20-237
ATTACHMENT G
LIST OF CONTRACTOR -FURNISHED PERSONNEL
Contractor shall provide fully qualified and experienced management personnel as
listed herein and shall not substitute those indicated by a star, (*) without the prior
written consent of City.
Office and Management Headcount (Number of FTE)
Position Description
Number of FTE
Operations Manager
0.18
Recycling Coordinators (7.05.H)
2 ( 18 months) 1 (Remainder of term)
Operations and Customer Liaison to the
City (7.05.1)*
0.5
Senior Manager(s) Responsible For
Marketing of Compost from Food
Scraps/Green Waste (7.05.M)*
0.02
Dedicated Route Supervisor (7.05.N)*
1
Customer Service Representatives
1.50
Dispatchers
0.36
General Manager
0.05
Senior Manager(s) Responsible for
Marketing of Food Scraps/Green
Waste/Compost Products
0.02
Attachment G
20-238
Collection and Transportation Headcount (leave blank if the position is not
proposed):
Labor Category
Number of FTE
Number of FTE:
Residential Collection
MSW Driver
8
Recycling Driver
6
Food Scraps/Green Waste Driver
4
Residential Route Manager
1
Other Residential Driver:
Other Residential Driver:
TOTAL RESIDENTIAL DRIVERS
18
Miscellaneous Drivers and Support
1
Relief Drivers & Spares
1
Cart Delivery and Exchange Driver
0.5
Bulky Route Drivers
0.07
Door -to -Door HHW Route Drivers
Mechanics
1
Mechanics Helpers
Other Misc. and Support:
TOTAL MISC AND SUPPORT
3.57
TOTAL PROPOSED COLLECTION/TRANSPORTATION HEADCOUNT
22.57
Attachment G
20-239
NAMES OF KEY PERSONNEL
Indicate the names of the key personnel that will be responsible for collection operations
and the areas of the management, operations, and line personnel listed below. The key
project personnel marked with star (*) below shall not be substituted without prior written
permission from the City.
General Manager
Royden Fujimori
Operations Manager*
Norma Zarate
Contractor's Representative/Contract Liaison
(14.07.B)
Chip Monaco
Manager of Recycling Coordinators*
Hashem Shokair
Senior Manager(s) Responsible For Marketing
of Compost from Food Scraps/Green Waste
(7.05.M)*
Michael Silva
Dedicated Route Supervisor (7.05.N)*
Frank Campos
Operations and Customer Liaison to the City
(7.05.1)*
Mike Carey
Customer Service Manager
Elisa Bene
Maintenance Supervisor
Frank Alavarez
Billing Specialist
Vanita Salhotra
Reporting and Compliance Supervisor
Chrystal Denning
Attachment G
20-240
C)
Attachment I - Waste Disposal Agreement
AMENDMENT TO WASTE DISPOSAL AGREEMENT
Between
THE COUNTY OF ORANGE, CALIFORNIA
and the
CITY OF NEWPORT BEACH
County Amendment Authorization Date:
J, 2016
County Notice Address:
Director
OC Waste and Recycling
300 N. Flower, Suite 400
Santa Ana, CA 92703
2016 Amendment to Waste Disposal Agreement
City Amendment Authorization Date:
February 9, 2016
City Notice Address:
Dave Kiff, City Manager
City of Newport Beach
100 Civic Center Drive
P.O. Box 1768
Newport Beach, CA 92658
20-241
AMENDMENT TO WASTE DISPOSAL AGREEMENT
THIS AMENDMENT TO WASTE DISPOSAL AGREEMENT (the "Amendment") is made
and dated as of the date indicated on the cover page hereof between the County of Orange, a political
subdivision of the State of California (the "County"), and the City designated on the cover page of this
Amendment, a general law or charter city and political subdivision of the State of California (the
"City").
RECITALS
The County owns, manages and operates a sanitary landfill system for the disposal of
municipal solid waste generated by the cities and the unincorporated area within the County (the
"Disposal System"). The Disposal System includes three active landfills and four regional household
hazardous waste collection centers.
The Disposal System is used for the disposal of municipal solid waste which is not reused,
recycled or otherwise diverted from landfill disposal, pursuant to the California Integrated Waste
Management Act of 1989 (Division 30 of the California Public Resources Code) (the "Act").
The County has entered into waste disposal agreements in 2009 (the "Original Waste Disposal
Agreements") with all of the cities in the County, including the City, as well as certain sanitary districts
located in the County (the "Participating Cities"), pursuant to which the County agreed to provide
disposal capacity for waste generated in or under the control of the Participating Cities, and the
Participating Cities agreed to deliver or cause the delivery of waste generated in or under the control of
the Participating Cities to the Disposal System, as more specifically set forth in, and subject to the
terms and conditions of, the Original Waste Disposal Agreements.
The City has determined that the execution of this Amendment by the City is in the best interest
of the City and will serve the public health, safety and welfare by providing greater disposal rate
stability, more predictable and reliable long-term disposal service, and sound environmental
management.
The County has determined that the execution by the County of this Amendment will serve the
public health, safety and welfare by providing a more stable, predictable and reliable supply of
municipal solid waste and the resulting service payment revenue to the Disposal System, thereby
enabling the County to plan, manage, operate and finance improvements to the Disposal System on a
more prudent and sound long term, businesslike basis consistent with its obligations to the State and
the holders of obligations secured by its Disposal System.
Official action approving this Amendment and determining it to be in the public interest and
authorizing its execution and delivery was duly taken by the County on the County authorization date
indicated on the cover page hereof.
Official action approving this Amendment and determining it to be in the public interest and
authorizing its execution and delivery was duly taken by the City on the City authorization date
indicated on the cover page hereof.
It is, therefore, agreed as follows:
2016 Amendment to Waste Disposal Agreement
20-242
Section 1. Amendment to Original Waste Disposal Agreement.
(a) Sections 3.6(C) and 3.6(E) of the Original Waste Disposal Agreement are deleted and
replaced in their entirety, as set forth below:
"(C) Receipt of Imported Acceptable Waste on a Contract Basis. Throughout the Term
hereof, the County shall have the right to enter into a contract or other agreement with any
municipal or private non -County entity for the delivery of Imported Acceptable Waste on
terms and conditions that the County determines to be necessary to ensure and enhance the
viability of the Disposal System for the benefit of the County and the Participating Cities and to
generate Net Import Revenues. The County certifies that in its good faith judgment the contract
or other agreement for the delivery of such waste will not materially and adversely affect the
ability of the County to receive and dispose of Acceptable Waste from the Participating Cities
in accordance with the applicable Disposal Agreements throughout the Term thereof. "
"(E) Application and Use of Revenues From Other Users. (1) Throughout the term
hereof, all revenues received by the County from the disposal of County Acceptable Waste by
the Disposal System, and all revenues received by the County from the disposal of Imported
Acceptable Waste by the Disposal System (including amounts received by the County as a
result of the failure of contract counterparties to deliver minimum required amounts of
Imported Acceptable Waste) , shall be deposited by the County in the County OC Waste &
Recycling Enterprise Fund and shall constitute revenues of the Disposal System. Pursuant to
the County's Plan of Adjustment, the County is entitled to receive net revenues (after payment
of all costs attributable to the acceptance of such Imported Acceptable Waste at the Disposal
System) ("Net Import Revenues") from the disposal of Imported Acceptable Waste by the
Disposal System. Costs attributable to the disposal of Imported Acceptable Waste include
deposits to the Environmental Fund, deposits to closure and postelosure reserves, City host
fees (if applicable), operating costs (such as manpower expenditures, equipment, services and
supplies expenditures), state surcharges, and a pro rata share of capital project costs. Net
Import Revenues shall be used for the payment of bankruptcy related obligations until payment
in full of such bankruptcy related obligations required to be paid from such Net Import
Revenues pursuant to the Plan of Adjustment. It is estimated that payment in full of such
bankruptcy related obligations required to be paid from such Net Import Revenues pursuant to
the Plan of Adjustment will occur by the end of Fiscal Year 2017-18.
(2) Until the County's obligation to apply Net Import Revenues for the payment of
bankruptcy related obligations in accordance with the Plan of Adjustment has been satisfied in
full, Net Import Revenues shall be calculated as provided in Section (3.6)(E)(1). For any
period after the County's obligation to apply Net Import Revenues for the payment of
bankruptcy related obligations in accordance with the Plan of Adjustment has been satisfied in
full, Net Import Revenues shall be calculated as follows:
(i) in Fiscal Year 2017-18, Net Import Revenues for each ton of Imported Acceptable
Waste received shall be equal to the revenues received for the disposal of such ton of Imported
Acceptable Waste (excluding any newly established per -ton fees or increases to existing
per -ton fees with respect to Imported Acceptable Waste payable to the State, other regulatory
agencies or cities in which facilities in the Disposal System are located) in excess of $17.57 per
ton;
(ii) in Fiscal Year 2018-19, Net Import Revenues for each ton of Imported Acceptable
Waste received shall be equal to the revenues received for the disposal of such ton of Imported
2016 Amendment to Waste Disposal Agreement
20-243
Acceptable Waste (excluding any newly established per -ton fees or increases to existing
per -ton fees with respect to Imported Acceptable Waste payable to the State, other regulatory
agencies or cities in which facilities in the Disposal System are located) in excess of $18.01 per
ton;
(iii) in Fiscal Year 2019-20, Net Import Revenues for each ton of Imported Acceptable
Waste received shall be equal to the revenues received for the disposal of such ton of Imported
Acceptable Waste (excluding any newly established per -ton fees or increases to existing
per -ton fees with respect to Imported Acceptable Waste payable to the State, other regulatory
agencies or cities in which facilities in the Disposal System are located) in excess in excess of
$18.46 per ton; and
(iv) thereafter, Net Import Revenues shall be equal to 30% of the revenues received by
the County from the disposal of Imported Acceptable Waste (excluding any newly established
per -ton fees or increases to existing per -ton fees with respect to Imported Acceptable Waste
payable to the State, other regulatory agencies or cities in which facilities in the Disposal
System are located).
(3) After the County's obligation to apply Net Import Revenues for the payment of
bankruptcy related obligations in accordance with the Plan of Adjustment has been satisfied in
full (i) 50% of any Net Import Revenues (as calculated pursuant to Section 3.6(E)(2)) shall be
paid to the County General Fund; and (ii) 50% of such Net Import Revenues shall be paid to the
Participating Cities (and to the County, with respect to the unincorporated area) listed in
Appendix 5 for use for any purpose by the Participating City, including but not limited to state
mandated solid waste programs. Payments of such amounts to the County General Fund and
the Participating Cities shall be made by the County within 90 days after the end of each fiscal
year. The portion of Net Import Revenues specified above payable to the Participating Cities
shall be apportioned in the percentages set forth in Appendix 5.
(4) The percentages set forth in Appendix 5 with respect to each Participating City will
be adjusted at the end of Fiscal Year 2019-20 to reflect the percentage of actual deliveries of
Acceptable Waste from each Participating City as compared to the total amount of actual
deliveries from all of the Participating Cities during Fiscal Years 2017-18, 2018-19, and
2019-20. The County shall notify each Participating City of the revised percentages in
Appendix 5 within 120 days after the end of Fiscal Year 2019-20. The revised percentages will
be used for the allocation of Net Import Revenues generated during Fiscal Year 2020-21 and
thereafter.
(b) Section 4.2(A)(z) is added to the Original Waste Disposal Agreement (immediately
following Section 4.2(A)(y)) as follows:
"(z) decrease the amount of Net Import Revenues otherwise payable to the County
General Fund and the Participating Cities pursuant to Section 3.6(E)(2) and Section 3.6(E)(3)
and use the amount of such decrease to pay costs of the Disposal System."
(c) Section 6.1(A) and Section 6,1(B) of the Original Waste Disposal Agreement are deleted
and replaced in their entirety with the following:
2016 Amendment to Waste Disposal Agreement
20-244
"SECTION 6.1 EFFECTIVE DATE AND TERM.
(A) Initial Term. This Agreement shall continue in full force and effect until June
30, 2025, unless earlier terminated in accordance with its terms, in which event the Term shall
be deemed to have expired as of the date of such termination.
(B) Option to Renew. This Agreement shall be subject to renewal by mutual
agreement of the parties, on or before June 30, 2023, for an additional term of ten years (the
"Renewal Term") on the same terms and conditions as are applicable during the Initial Term
hereof. The City shall give the County written notice of its irrevocable election to renew this
Agreement on or before June 30, 2022. If the parties do not renew this Agreement by June 30,
2023, the Agreement shall expire on June 30, 2025."
(d) The first sentence of Section 6.1(C) of the Original Waste Disposal Agreement is deleted in
its entirety and replaced with the following:
"In connection with the parties' right to renew this Agreement for an additional ten-year term
pursuant to Section 6.1(B), the parties shall, on or before June 30, 2023, negotiate an applicable
change in the Contract Rate for such renewal term."
(e) Appendix 2 of the Original Waste Disposal Agreement is deleted in its entirety and
replaced with the form attached hereto.
(f) Appendix 5 shall be added to the Original Waste Disposal Agreement as a new appendix, in
the form attached hereto.
(g) All other terms and conditions of the Original Waste Disposal Agreement shall remain in
full force and effect.
Section 2. Initial Payment. As consideration for the execution of this Amendment by all of the
Participating Cities, and subject to the occurrence of the Amendment Effective Date pursuant
to Section 3, the County agrees to pay, from the County OC Waste & Recycling Enterprise
Fund, the Amendment Payment to the Participating Cities listed in Appendix 5. The aggregate
Amendment Payment shall be $5,400,000, and shall be distributed to the individual
Participating Cities (including the City) in the percentages set forth in Appendix 5 by
September 30, 2016.
Section 3. Effectiveness of Amendment. The provisions of this Amendment shall not become
effective unless and until the Amendment has been executed by the County and all of the
Participating Cities. The date on which the County and all of the Participating Cities have
executed the Amendment shall be the "Amendment Effective Date." The County shall give
written notice of the Amendment Effective Date to the City. In the event that the Amendment
Effective Date does not occur by June 30, 2016, this Amendment shall be automatically
terminated and the County shall have no obligation to make the Amendment Payment.
Section 4. REPRESENTATIONS AND WARRANTIES OF THE PARTIES. Each of the
parties to this Amendment represent and warrant that it is a political subdivision of the State of
California validly existing under the Constitution and laws of the State and (ii) it has duly
authorized the execution and delivery of this Amendment, and has duly executed and delivered
the Amendment.
2016 Amendment to Waste Disposal Agreement
20-245
All other terms and conditions of the 2009 Original Waste Disposal Agreement not specifically
changed by this Amendment, shall remain in full force and effect.
IN WITNESS WHEREOF, COUNTY and CITY have caused this Amendment to be executed
by their duly authorized officers or representatives as of the day and year first above written.
Date
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: 2 I2 1 l Co'
By:
Aaron C. Harp
City Attorney
ATTEST: ] (
Date: A. ( I. /&
By:
—A M ' ,
Leilani 1. Brown
City Clerk
APPROVED AS TO FORM:
COUNTY COUNSEL
ORANGE COUNTY, CALIFORNIA
By
ames Steinmann, Deputy
2016 Amendment to Waste Disposal Agreement
COUNTY OF ORANGE
By
Dire r, OC W e & ecycling
CITY OF NEWPORT BEACH,
a California munici al corporation
Date: Al IV 1
By: Nf
Diane B. Dixon
Mayor
20-246
APPENDIX 2
County Acceptable Waste Tonnage Target to be Used
for Purposes of Section 4.2(b)
Fiscal Year
FY 2015-16
FY 2016-17
FY 2.017-18
FY 2018-19
FY 2019-20
FY 2020-21
FY 2021-22
FY 2022-23
FY 2023-24
FY 2024-25
2016 Amendment to Waste Disposal Agreement
Tonnage
Cumulative
2,724,250
2,724,250
2,681,153
5,405,403
2,638,746
8,044,149
2,597,017
10,641,166
2,558,522
13,199,688
2,520,605
15,720,293
2,483,256
18,203,549
2,483,256
20,686,805
2,483,256
23,170,061
2,483,256
25,653,317
20-247
APPENDIX 5
PARTICIPATING CITY ALLOCATION PURSUANT TO SECTION 3.6
city
Allocation Percentage for
Allocation of
Purposes of Section 3.6
Initial Payment
Anaheim
13.18%
$711,509
Aliso Viejo
0.67
36,416
Buena Park
2.34
126,275
Brea
2.28
123,085
Costa Mesa
2.18
117,936
Costa Mesa Sanitary District
1.48
79,976
Cypress
2.56
138,115
Dana Point
0.99
53,278
Fullerton
4.10
221,271
Fountain Valley
1.76
95,217
Garden Grove/
GG Sanitary District
7.17
387,197
Huntington Beach
6.13
330,807
Irvine
8.22
444,036
Laguna Beach
1.14
61,796
Laguna Hills
0.74
40,098
Laguna Niguel
1.36
73,341
Laguna Woods
0.41
22,274
La Habra
1.69
91,431
Lake Forest
2.45
132,214
La Palma
0.32
17,325
Los Alamitos
0.58
31,362
Mission Viejo
2.42
130,902
Newport Beach
3.68
198,946
Orange
490
264,468
Placentia
1.58
85,116
Rancho Santa Margarita
1.11
60,009
Santa Ana
10.60
572,184
San Clemente
1.40
75,728
San Juan Capistrano
1.23
66,420
Seal Beach
0.82
44,292
Stanton
1.62
87,287
Tustin
1.42
76,648
Villa Park
0.21
11,081
Midway City Sanitary
District (Westminster)
2.13
114,893
Yorba Linda
1.78
96,344
County Unincorporated
3.35
180,723
Totals
100%
$5,400,000
2016 Amendment to Waste Disposal Agreement
20-248
SEW PORT CITY OF
NEWPORT BEACH
<,FoaNP City Council Staff Report
February 9, 2016
Agenda Item No. 9
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Dave Kiff — City Manager
949-644-3001; dkiff@newportbeachca.gov
PREPARED BY: Rob Houston — Assistant to the City Manager
949-644-3033; rhouston@newportbeachca.gov
TITLE: Revised Effective Date to an Amendment of the Waste Disposal
Agreement
ABSTRACT:
On April 14, 2015, the City Council approved an Amendment to the 2009 Waste
Disposal Agreement (WDA Amendment). A revision to the effective date to the WDA
Amendment is requested to allow additional time for the County to secure all city
approvals. This WDA Amendment will maintain stable disposal rates and continuity of
service for residents and businesses while ensuring continued partnership between all
34 cities and the County.
RECOMMENDATION:
Adopt Resolution No. 2016-27, A Resolution of the City Council of the City of Newport
Beach, California, Approving the Revised Effective Date to an Amendment to the 2009
Waste Disposal Agreement with the County of Orange, to allow for the continued
importation of waste at the County's three landfills and to extend the terms of the Waste
Disposal Agreement through June 30, 2025.
FUNDING REQUIREMENTS:
There is no expenditure of funds related to this item.
In April 2015, the City Council approved the WDA Amendment with the County to
provide for continuation of waste importation at the County's three landfills and to
extend the terms of the WDA through June 30, 2025. This agreement provides low,
stable disposal rates to member agencies. The WDA Amendment established an
9-1
20-249
Revised Effective Date to an Amendment of the Waste Disposal Agreement
February 9, 2016
Page 2
effective date of September 30, 2015. Not all cities were able to approve WDA
Amendments by the September 30, 2015 date. However, as the outstanding issues
have been resolved, the County is requesting all cities approve an updated amendment.
This updated amendment requires approval by all 34 cities.
The revision to the WDA Amendment updates the Effective Date from June 30, 2016 to
June 30, 2025 to allow the County to import waste from outside the County and
provides for a revenue sharing to the member agencies. All other terms and conditions
that were negotiated in the April 2015 WDA Amendment remain in full force and effect.
It is recommended that the City Council adopt Resolution No. 2016-27 to approve the
revised effective date to June 30, 2016. The County Board of Supervisors approved
this effective date modification at their September 22, 2015 meeting.
ENVIRONMENTAL REVIEW:
Staff recommends the City council find this action not subject to the California
Environmental Quality Act ("CEQA") pursuant to Sections 1506(c)(2) (the activity will not
result in a direct or reasonably foreseeable indirect physical change in the environment)
and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA
Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no
potential for resulting in physical change to the environment, directly or indirectly.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
ATTACHMENTS:
Attachment A — Resolution No. 2016-27
Attachment B — Amendment to Waste Disposal Agreement
9-2
20-250
Attachment A
RESOLUTION NO. 2016 -
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF NEWPORT BEACH APPROVING THE
REVISED EFFECTIVE DATE TO AN
AMENDMENT TO THE 2009 WASTE DISPOSAL
AGREEMENT WITH THE COUNTY OF ORANGE.
WHEREAS, the City has an existing Waste Disposal Agreement (the Waste
Disposal Agreement) with the County of Orange (the "County") which requires the City to
dispose of all specified solid waste generated within the City to County landfills and for the
County to accept all such waste at a price agreed upon by the City and County; and
WHEREAS, the Waste Disposal Agreement became effective on or about July 23,
2009, and by its term is set to expire on June 30, 2020; and
WHEREAS, the Waste Disposal Agreement provides that the County will not
accept waste imported from outside the County at County landfills after June 30, 2016;
and
WHEREAS, an Amendment to the Waste Disposal Agreement (the
"Amendment") has been negotiated between the County and various cities throughout
Orange County to provide for continuation of importation of waste from outside the
County at County landfills in exchange for allocation to the cities of a portion of future
importation revenues and to extend the terms of this activity within the Waste Disposal
Agreement to June 30, 2025; and
WHEREAS, the City Council desires to ensure that solid waste generated within
the City can be disposed of in an environmentally safe manner and at a reasonable cost
for the near future; and
WHEREAS, the proposed Amendment furthers these goals by, among other
things, ensuring that solid waste generated within the City can be disposed of at County
landfills through June 30, 2025; that the landfills will be operated in an environmentally
safe and reliable manner; and that the cost of disposing of solid waste at County
landfills will be reasonable; and
WHEREAS, on April 14, 2015, by Resolution No. 2015-26, the City of Newport
Beach approved the Amendment in which the effective date to be no later than
September 30, 2015; and
WHEREAS, the County has requested a revision to the effective date of the
Amendment from September 30, 2015 to June 30, 2016 ("Revised Effective Date").
NOW, THEREFORE, the City Council of the City of Newport Beach resolves, finds
and determines, on the basis of the facts set forth in the agenda report presented to it
9-3
20-251
and any testimony received at the meeting at which this matter was considered, as
follows:
Section 1. The foregoing recitals are true and correct.
Section 2. The City Council hereby finds and determines that the Revised
Effective Date to the Amendment to the Waste Disposal Agreement between the
County of Orange and the City of Newport Beach ("Amendment") furthers the public
health, safety and welfare.
Section 3. The City Council hereby finds and determines that the Revised
Effective Date shall be amended into the terms and provisions of the Amendment, in the
form as submitted by the City Manager, are approved and that the Mayor is authorized
to execute, and the City Clerk to attest, the Amendment on behalf of the City.
Section 4. The officers and employees of the City are authorized and directed,
jointly and severally, to do any and all things necessary or advisable in order to
effectuate the purposes of this Resolution and to administer the City's obligations,
responsibilities and duties to be performed.
ADOPTED this day of 2016.
Diane B. Dixon
Mayor
ATTEST:
Leilani I. Brown
City Clerk
20-252
Attachment B
AMENDMENT TO WASTE DISPOSAL AGREEMENT
Between
THE COUNTY OF ORANGE, CALIFORNIA
and the
CITY OF NEWPORT BEACH
County Amendment Authorization Date
'2016
County Notice Address:
Director
OC Waste and Recycling
300 N. Flower, Suite 400
Santa Ana, CA 92703
2016 Amendment to Waste Disposal Agreement
February 9, 2016
City Amendment Authorization Date:
February 9, 2016
City Notice Address:
Dave Kiff, City Manager
City of Newport Beach
100 Civic Center Drive
P.O. Box 1768
Newport Beach, CA 92658
OR
20-253
Attachment B
AMENDMENT TO WASTE DISPOSAL AGREEMENT
THIS AMENDMENT TO WASTE DISPOSAL AGREEMENT (the "Amendment") is made
and dated as of the date indicated on the cover page hereof between the County of Orange, a political
subdivision of the State of California (the "County"), and the City designated on the cover page of this
Amendment, a general law or charter city and political subdivision of the State of California (the
"City").
RECITALS
The County owns, manages and operates a sanitary landfill system for the disposal of
municipal solid waste generated by the cities and the unincorporated area within the County (the
"Disposal System"). The Disposal System includes three active landfills and four regional household
hazardous waste collection centers.
The Disposal System is used for the disposal of municipal solid waste which is not reused,
recycled or otherwise diverted from landfill disposal, pursuant to the California Integrated Waste
Management Act of 1989 (Division 30 of the California Public Resources Code) (the "Act").
The County has entered into waste disposal agreements in 2009 (the "Original Waste Disposal
Agreements") with all of the cities in the County, including the City, as well as certain sanitary districts
located in the County (the "Participating Cities"), pursuant to which the County agreed to provide
disposal capacity for waste generated in or under the control of the Participating Cities, and the
Participating Cities agreed to deliver or cause the delivery of waste generated in or under the control of
the Participating Cities to the Disposal System, as more specifically set forth in, and subject to the
terms and conditions of, the Original Waste Disposal Agreements.
The City has determined that the execution of this Amendment by the City is in the best interest
of the City and will serve the public health, safety and welfare by providing greater disposal rate
stability, more predictable and reliable long-term disposal service, and sound environmental
management.
The County has determined that the execution by the County of this Amendment will serve the
public health, safety and welfare by providing a more stable, predictable and reliable supply of
municipal solid waste and the resulting service payment revenue to the Disposal System, thereby
enabling the County to plan, manage, operate and finance improvements to the Disposal System on a
more prudent and sound long term, businesslike basis consistent with its obligations to the State and
the holders of obligations secured by its Disposal System.
Official action approving this Amendment and determining it to be in the public interest and
authorizing its execution and delivery was duly taken by the County on the County authorization date
indicated on the cover page hereof.
Official action approving this Amendment and determining it to be in the public interest and
authorizing its execution and delivery was duly taken by the City on the City authorization date
indicated on the cover page hereof.
It is, therefore, agreed as follows:
2016 Amendment to Waste Disposal Agreement
M
20-254
Attachment B
Section 1. Amendment to Original Waste Disposal Agreement.
(a) Sections 3.6(C) and 3.6(E) of the Original Waste Disposal Agreement are deleted and
replaced in their entirety, as set forth below:
"(C) Receipt of Imported Acceptable Waste on a Contract Basis. Throughout the Term
hereof, the County shall have the right to enter into a contract or other agreement with any
municipal or private non -County entity for the delivery of Imported Acceptable Waste on
terms and conditions that the County determines to be necessary to ensure and enhance the
viability of the Disposal System for the benefit of the County and the Participating Cities and to
generate Net Import Revenues. The County certifies that in its good faith judgment the contract
or other agreement for the delivery of such waste will not materially and adversely affect the
ability of the County to receive and dispose of Acceptable Waste from the Participating Cities
in accordance with the applicable Disposal Agreements throughout the Term thereof. "
"(E) Application and Use of Revenues From Other Users. (1) Throughout the term
hereof, all revenues received by the County from the disposal of County Acceptable Waste by
the Disposal System, and all revenues received by the County from the disposal of Imported
Acceptable Waste by the Disposal System (including amounts received by the County as a
result of the failure of contract counterparties to deliver minimum required amounts of
Imported Acceptable Waste) , shall be deposited by the County in the County OC Waste &
Recycling Enterprise Fund and shall constitute revenues of the Disposal System. Pursuant to
the County's Plan of Adjustment, the County is entitled to receive net revenues (after payment
of all costs attributable to the acceptance of such Imported Acceptable Waste at the Disposal
System) ("Net Import Revenues") from the disposal of Imported Acceptable Waste by the
Disposal System. Costs attributable to the disposal of Imported Acceptable Waste include
deposits to the Environmental Fund, deposits to closure and postclosure reserves, City host
fees (if applicable), operating costs (such as manpower expenditures, equipment, services and
supplies expenditures), state surcharges, and a pro rata share of capital project costs. Net
Import Revenues shall be used for the payment of bankruptcy related obligations until payment
in full of such bankruptcy related obligations required to be paid from such Net Import
Revenues pursuant to the Plan of Adjustment. It is estimated that payment in full of such
bankruptcy related obligations required to be paid from such Net Import Revenues pursuant to
the Plan of Adjustment will occur by the end of Fiscal Year 2017-18.
(2) Until the County's obligation to apply Net Import Revenues for the payment of
bankruptcy related obligations in accordance with the Plan of Adjustment has been satisfied in
full, Net Import Revenues shall be calculated as provided in Section (3.6)(E)(1). For any
period after the County's obligation to apply Net Import Revenues for the payment of
bankruptcy related obligations in accordance with the Plan of Adjustment has been satisfied in
full, Net Import Revenues shall be calculated as follows:
(i) in Fiscal Year 2017-18, Net Import Revenues for each ton of Imported Acceptable
Waste received shall be equal to the revenues received for the disposal of such ton of Imported
Acceptable Waste (excluding any newly established per -ton fees or increases to existing
per -ton fees with respect to Imported Acceptable Waste payable to the State, other regulatory
agencies or cities in which facilities in the Disposal System are located) in excess of $17.57 per
ton;
(ii) in Fiscal Year 2018-19, Net Import Revenues for each ton of Imported Acceptable
Waste received shall be equal to the revenues received for the disposal of such ton of Imported
2016 Amendment to Waste Disposal Agreement
9-7
20-255
Attachment B
Acceptable Waste (excluding any newly established per -ton fees or increases to existing
per -ton fees with respect to Imported Acceptable Waste payable to the State, other regulatory
agencies or cities in which facilities in the Disposal System are located) in excess of $18.01 per
ton;
(iii) in Fiscal Year 2019-20, Net Import Revenues for each ton of Imported Acceptable
Waste received shall be equal to the revenues received for the disposal of such ton of Imported
Acceptable Waste (excluding any newly established per -ton fees or increases to existing
per -ton fees with respect to Imported Acceptable Waste payable to the State, other regulatory
agencies or cities in which facilities in the Disposal System are located) in excess in excess of
$18.46 per ton; and
(iv) thereafter, Net Import Revenues shall be equal to 30% of the revenues received by
the County from the disposal of Imported Acceptable Waste (excluding any newly established
per -ton fees or increases to existing per -ton fees with respect to Imported Acceptable Waste
payable to the State, other regulatory agencies or cities in which facilities in the Disposal
System are located).
(3) After the County's obligation to apply Net Import Revenues for the payment of
bankruptcy related obligations in accordance with the Plan of Adjustment has been satisfied in
full (i) 50% of any Net Import Revenues (as calculated pursuant to Section 3.6(E)(2)) shall be
paid to the County General Fund; and (ii) 50% of such Net Import Revenues shall be paid to the
Participating Cities (and to the County, with respect to the unincorporated area) listed in
Appendix 5 for use for any purpose by the Participating City, including but not limited to state
mandated solid waste programs. Payments of such amounts to the County General Fund and
the Participating Cities shall be made by the County within 90 days after the end of each fiscal
year. The portion of Net Import Revenues specified above payable to the Participating Cities
shall be apportioned in the percentages set forth in Appendix 5.
(4) The percentages set forth in Appendix 5 with respect to each Participating City will
be adjusted at the end of Fiscal Year 2019-20 to reflect the percentage of actual deliveries of
Acceptable Waste from each Participating City as compared to the total amount of actual
deliveries from all of the Participating Cities during Fiscal Years 2017-18, 2018-19, and
2019-20. The County shall notify each Participating City of the revised percentages in
Appendix 5 within 120 days after the end of Fiscal Year 2019-20. The revised percentages will
be used for the allocation of Net Import Revenues generated during Fiscal Year 2020-21 and
thereafter.
(b) Section 4.2(A)(z) is added to the Original Waste Disposal Agreement (immediately
following Section 4.2(A)(y)) as follows:
"(z) decrease the amount of Net Import Revenues otherwise payable to the County
General Fund and the Participating Cities pursuant to Section 3.6(E)(2) and Section 3.6(E)(3)
and use the amount of such decrease to pay costs of the Disposal System."
(c) Section 6.1(A) and Section 6.1(B) of the Original Waste Disposal Agreement are deleted
and replaced in their entirety with the following:
2016 Amendment to Waste Disposal Agreement
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Attachment B
"SECTION 6.1 EFFECTIVE DATE AND TERM
(A) Initial Term. This Agreement shall continue in full force and effect until June
30, 2025, unless earlier terminated in accordance with its terms, in which event the Term shall
be deemed to have expired as of the date of such termination.
(B) Option to Renew. This Agreement shall be subject to renewal by mutual
agreement of the parties, on or before June 30, 2023, for an additional term of ten years (the
"Renewal Term") on the same terms and conditions as are applicable during the Initial Term
hereof. The City shall give the County written notice of its irrevocable election to renew this
Agreement on or before June 30, 2022. If the parties do not renew this Agreement by June 30,
2023, the Agreement shall expire on June 30, 2025."
(d) The first sentence of Section 6.1(C) of the Original Waste Disposal Agreement is deleted in
its entirety and replaced with the following:
"In connection with the parties' right to renew this Agreement for an additional ten-year term
pursuant to Section 6. l (B), the parties shall, on or before June 30, 2023, negotiate an applicable
change in the Contract Rate for such renewal term."
(e) Appendix 2 of the Original Waste Disposal Agreement is deleted in its entirety and
replaced with the form attached hereto.
(f) Appendix 5 shall be added to the Original Waste Disposal Agreement as a new appendix, in
the form attached hereto.
(g) All other terms and conditions of the Original Waste Disposal Agreement shall remain in
full force and effect.
Section 2. Initial Payment. As consideration for the execution of this Amendment by all of the
Participating Cities, and subject to the occurrence of the Amendment Effective Date pursuant
to Section 3, the County agrees to pay, from the County OC Waste & Recycling Enterprise
Fund, the Amendment Payment to the Participating Cities listed in Appendix 5. The aggregate
Amendment Payment shall be $5,400,000, and shall be distributed to the individual
Participating Cities (including the City) in the percentages set forth in Appendix 5 by
September 30, 2016.
Section 3. Effectiveness of Amendment. The provisions of this Amendment shall not become
effective unless and until the Amendment has been executed by the County and all of the
Participating Cities. The date on which the County and all of the Participating Cities have
executed the Amendment shall be the "Amendment Effective Date." The County shall give
written notice of the Amendment Effective Date to the City. In the event that the Amendment
Effective Date does not occur by June 30, 2016, this Amendment shall be automatically
terminated and the County shall have no obligation to make the Amendment Payment.
Section 4. REPRESENTATIONS AND WARRANTIES OF THE PARTIES. Each of the
parties to this Amendment represent and warrant that it is a political subdivision of the State of
California validly existing under the Constitution and laws of the State and (ii) it has duly
authorized the execution and delivery of this Amendment, and has duly executed and delivered
the Amendment.
2016 Amendment to Waste Disposal Agreement
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Attachment B
All other terms and conditions of the 2009 Original Waste Disposal Agreement not specifically
changed by this Amendment, shall remain in full force and effect.
IN WITNESS WHEREOF, COUNTY and CITY have caused this Amendment to be executed
by their duly authorized officers or representatives as of the day and year first above written.
Date
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: 212 It G -
COUNTY OF ORANGE
:A
Director, OC Waste & Recycling
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By: By:
Aaron C. Harp Diane B. Dixon
City Attorney Mayor
ATTEST:
Date:
LIN
Leilani I. Brown
City Clerk
APPROVED AS TO FORM:
COUNTY COUNSEL
ORANGE COUNTY, CALIFORNIA
James Steinmann, Deputy
2016 Amendment to Waste Disposal Agreement
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APPENDIX 2
County Acceptable Waste Tonnage Target to be Used
for Purposes of Section 4.2(b)
Fiscal Year
FY 2015-16
FY 2016-17
FY 2017-18
FY 2018-19
FY 2019-20
FY 2020-21
FY 2021-22
FY 2022-23
FY 2023-24
FY 2024-25
2016 Amendment to Waste Disposal Agreement
Tonnage
Cumulative
2,724,250
2,724,250
2,681,153
5,405,403
2,638,746
8,044,149
2,597,017
10,641,166
2,558,522
13,199,688
2,520,605
15,720,293
2,483,256
18,203,549
2,483,256
20,686,805
2,483,256
23,170,061
2,483,256
25,653,317
Attachment B
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Attachment B
APPENDIX 5
PARTICIPATING CITY ALLOCATION PURSUANT TO SECTION 3.6
City
Allocation Percentage for
Allocation of
Purposes of Section 3.6
Initial Payment
Anaheim
13.18%
$711,509
Aliso Viejo
0.67
36,416
Buena Park
2.34
126,275
Brea
2.28
123,085
Costa Mesa
2.18
117,936
Costa Mesa Sanitary District
1.48
79,976
Cypress
2.56
138,115
Dana Point
0.99
53,278
Fullerton
4.10
221,271
Fountain Valley
1.76
95,217
Garden Grove/
GG Sanitary District
7.17
387,197
Huntington Beach
6.13
330,807
Irvine
8.22
444,036
Laguna Beach
1.14
61,796
Laguna Hills
0.74
40,098
Laguna Niguel
1.36
73,341
Laguna Woods
0.41
22,274
La Habra
1.69
91,431
Lake Forest
2.45
132,214
La Palma
0.32
17,325
Los Alamitos
0.58
31,362
Mission Viejo
2.42
130,902
Newport Beach
3.68
198,946
Orange
4.90
264,468
Placentia
1.58
85,116
Rancho Santa Margarita
1.11
60,009
Santa Ana
10.60
572,184
San Clemente
1.40
75,728
San Juan Capistrano
1.23
66,420
Seal Beach
0.82
44,292
Stanton
1.62
87,287
Tustin
1.42
76,648
Villa Park
0.21
11,081
Midway City Sanitary
District (Westminster)
2.13
114,893
Yorba Linda
1.78
96,344
County Unincorporated
3.35
180,723
Totals
100%
$5,400,000
2016 Amendment to Waste Disposal Agreement
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•
WASTE DISPOSAL AGREEMENT
Between
TETE COUNTY OF ORANGE, CALIFORNIA
and
the
CITY OF NEWPORT BEACH
Dated 4 / 2'8 2009
County Authorization Date:
City Authorization Date:
March 24, 009
- Ajril - 28 ; - 2009
County Notice Address:
City Notice Address:
Director
General Services Director
OC Waste & Recycling
3300 'ffewpoxt Boulevard
300 N. Flower Street, Suite 400
Newport Beach, CA 92663
Santa Ana, CA 92703
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND INTERPRE"T"ATION
Page
Section1.1 DEFINITIONS, ............. ............... ............................. ......... .................................... __ ................... 2
Section1.2 . DTIERPRETATION.........................................................................................................................7
ARTICLE 11
REPRESENTATIONS AND WARRANTIES
Section 2.1 REPRESENTATIONS AND WARRANTIES OF THE CITY........................................................8
Section 2.2 REPRESENTATIONS AND WARRANTIES OF THE COUNTY.................................................9
ARTICLE III
DELIVERY AND ACCEPTANCE OF WASTE AND PROVISION OF DISPOSAL SERVICE
Section 3.1 DELIVERY OF WASTE.....................__..................................._....................................................9
Section 3.2 PROVISION OF DISPOSAL SERVICES BY THE COUNTY ............ ..... ..... I .......... I ........... ........ I I
Section 3.3 COUNTY RIGHT TO REFUSE WASTE......................................................................................12
Section 3.4 UNINCORPORATED AREA ACCEPTABLE WASTE...............................................................13
Section 3.5 MISCELLANEOUS OPERATIONAL MATTERS..... ........ ....... _ ...... _ ............ ............ . . .......... 14
Section 3.6 OTHER USERS OF THE DISPOSAL SYSTEM..........................................................................14
Section 3.7 COUNTY PROVISION OF WASTE DIVERSION SERVICES...................................................15
ARTICLE IV
CONTRACT RATE
Section 4.1
CHARGING AND SECURING PAYMENT OF CONTRACT RATE.........................................15
Section4.2
CONTRACT RATE........................................................................................................................15
.....................................................................................23
Section 4.3
RESPONSIBILITY FOR PAYMENT OF THE CONTRACT RATE...........................................21
__...... ......................................................................... 23
Section 4.4
BILLING OF THE CONTRACT RATE....... ............. ...................... _ ......................................... .21
Section 4.5
RESTRICTED RESERVES............................................................................................................21
Section4.6
AUDITED FINANCIAL STATEMENTS......................................................................................22
Section 4.7
ANNUAL UPDATE OF TEN-YEAR. FINANCIAL PROJECTION.............................................22
ARTICLE V
BREACH, ENFORCEMENT AND TERMINATION
Section5.1
BREACH.........................................................................................................................................23
Section 5.2
CITY CONVENIENCE TERIVIINATION
.....................................................................................23
Section5.3
TERMINATION ................ .........................
__...... ......................................................................... 23
Section5.4
NO WAIVERS................................................................................................................................24
Section 53
FORUM FOR DISPUTE RESOLUTION.........................•............................................................24
ARTICLE VI
TERM
Section 6.1 EFFECTIVE DATE AND TERM..................................................................................................24
Section 6.2 COMMENCEMENT DATE...........................................................................................................25
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ARTICLE VII
GENERAL PROVISIONS
Section 7.1
OPERATION AND MAINTENANCE OF THE DISPOSAL SYSTEM .......................................26
Section 7.2
UNCONTROLLABLE CIRCUMSTANCES GENERALLY . ..................... .................................
26
Section 7.3
INDEMNIFICATION........— ....................... —.— ............ ........ —'.- .......................... ................ 27
Section 7.4
RELATIONSHIP OF THE PARTIES ..... ............................. ...... -- ......................................... ....
27
Section 7.5
LIMITED RECOURSE . ................. — .......... ...... . ..... -- ............... -- .......... ............................
27
Section 7.6
PRE-EXISTING RIGHTS AND LIABILITIES ................... .............................. --.- ................ -.27
Section7.7
NO VESTED. 1RJQHTS ....................................... - ......... ................. - .......... w...................,......
28
Section 7.8
LIABILITY FOR COLLECTION, TRANSPORTATION AND PROCESSING ..........................28
Section 7.9
NO CONSEQUENTIAL OR PUNITIVE DAMAGES .... -- .............................. ......... .................
2s
Section 7.10
AMENDMENTS...................................................................................... .....................................
28
Section 7.11
NOTICE OF LITIGATION ............... .................................................. I .... ... I-- ......... ...' .......
28
Section 7.12
FURTHER ASSURANCES ................................ ..........................................................................
28
Section 7.13
ASSIGNMENT OF AGREEMENT . ....... ................... .............. .......... .............................. ........
28
Section 7.14
INTEREST ON OVERDUE OBLIGATIONS ......................................................................... .....
28
Section 7.15
BINDING EFFECT . ........... - . . .......... .............................. --.— ....... ......................... - ........... -"..28
Section7.16
NOTICES ........................................................................................................... -.— .......................
28
APPENDIX I
ESTIMATED ANNUAL TONNAGE
F4392MV01m
CUMULATIVE TONNAGE TARGETS
APPENDIX 3
CUMULATIVE CAPITAL OOSTS
APPENDIX 4
FORM OF HAULER ACKNOWLEDGEMENT
EXWabDD C�DPY
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WASTE DISPOSAL AGREEMENT
THIS WASTE DISPOSAL AGREEMENT is made and dated as of the date indicated on the cover page
hereof between the County of Orange, a political subdivision of the State of California (the "County"), and the City
designated on the cover page of this Agreement, a general law or chatter city and political subdivision of the State of
California (the "City").
RECITALS
The County owns, manages and operates a sanitary landfill system for the disposal of municipal solid waste
generated by the cities and the unincorporated area within the County (the "Disposal System"). The Disposal
System includes three active landfills and four regional household hazardous waste collection centers.
The Disposal System is used for the disposal of municipal solid waste which is not reused, recycled or
otherwise diverted frorn landfill disposal, pursuant to the California Integrated Waste Management Act of 1989
(Division 30 of the California Public Resources Code) (the "Act").
The City, in the exercise of its police power and its powers under the Act, has entered into a franchise or
other agreement with or issued permits or licenses to one or more private haulers for the collection and disposal of
municipal solid waste generated within the City.
A significant portion of municipal solid waste generated within the City historically has been and currently
is delivered by such hauler or haulers to the County for disposal in the Disposal System.
In 1997, the City and the County entered in a waste disposal agreement (the "Original WDA'), pursuant to
which the County agreed to provide disposal capacity for waste generated in the City, and the City agreed to deliver
or cause the delivery of waste generated in tate City to the Disposal System, as more specifically set forth in, and
subject to the terms and conditions of, the Original WDA.
The Original WDA, as amended, will expire by its terms on June 30, 2010, unless the City and the County
agree to renew the Original WDA.
The City and the County desire to enter into this agreement to extend, amend and restate the Original
WDA, on the terms and conditions set forth herein. The County and City acknowledge that the Original WDA shall
remain in full force and effect until the Commencement Date.
The City has determined that the execution of this Agreement by the City will serve the public health,
safety and welfare of the City by providing greater disposal rate stability, more predictable and reliable long-term
disposal service, and the continuation of sound environmental management.
The County has determined that the execution by the County of this Agreement will serve the public health,
safety and welfare by providing a more stable, predictable and reliable supply of municipal solid waste and the
resulting service payment revenue to the Disposal System, thereby enabling the County to plan, manage, operate and
finance improvements to the Disposal System on a more prudent and sound long term, businesslike basis consistent
with its obligations to the State and the holders of obligations secured by its Disposal System.
Official action approving this Agreement and determining it to be in the public interest and authorizing its
execution and delivery was duly taken by the County on the County authorization date indicated on the cover page
hereof.
Official action approving this Agreement and determining it to be in the public interest and authorizing its
execution and delivery was duly taken by the City on the City authorization date indicated on the cover page hereof.
It is, therefore, agreed as follows:
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ARTICLE I
DEFINITIONS AND INTERPRETATION
0
SUCTION 1. I DEF1N TIONS. As used in this Agreement, the following terms shall have the meanings
set forth below.
"Acceptable Waste" means all garbage, refuse, rubbish and other materials and substances discarded or
rejected as being spent, useless, worthless or in excess to the owners at the time of such discard or rejection and
which are normally disposed of by or collected from residential (single family and multi -family), commercial,
industrial, governmental and institutional establishments and which are acceptable at Class III landfills under
Applicable "w.
"Act" means the California Integrated Waste Management Act of 1989 (Division 30 of the California
Public Resources Code), as amended, supplemented, superseded and replaced from time to time.
"Agreement" means this Waste Disposal Agreement between the County and the City as the same may be
amended or modified from time to time in accordance herewith.
"Appendix" means an appendix to this Agreement, as the same may be amended or modified from time to
time in accordance with the terms hereof
"Applicable Law" means the Act, the Orange County Code, CERCLA, RC1ZA, CEQA, any Legal
Entitlement and any federal or state rule, regulation, requirement, guideline, permit, action, determination or order of
any Governmwtal Body having jurisdiction, applicable from time to time to the siting, design, permitting,
acquisition, construction, equipping, financing, ownership, possession, operation or maintenance of the Disposal
System, the transfer, handling, transportation and disposal of Acceptable Waste, Unacceptable Waste, or any other
transaction or matter contemplated hereby (including any of the foregoing which concern health, safety, fire,
environmental protection, mitigation monitoring plans and building codes).
"Board" means the California Integrated Waste Management Board.
"Capital Costs" means all costs of the Disposal System that are classified as capital costs for purposes of
the budget of the Department in accordance with procedures established by the County of Orange Auditor -
Controller in compliance with the California State Controller's Manual, including but not limited to all of the
categories of costs of the Disposal System reported as `Buildings and Improvements, and Infrastructure" (Object
Code 4200) or "Equipment" (Object Code 4000) in the County of Orange — Chart of Accounts, or any successor
accounting or reporting system utilized by the County.
"CEQA" means the California Environmental Quality Act, codified at Cal. Pub. Res. Code Seotion 21000
el seg, as amended or superseded, and the regulations promulgated thereunder.
"CERCLA" means the Comprehensive Environmental Response, Compensation and Liability Act,
42 U.S.C.A. Section 9601 etseq., as amended or superseded, and the regulations promulgated thereunder.
"Change in Law" means any of the following events or conditions which has a material and adverse effect
on the performance by the parties of their respective obligations under this Agreement (except for payment
obligations), or on the siting, design, permitting, acquisition, -construction, equipping, financing, ownership,
possession, operation or maintenance of the Disposal System or other matters to which Applicable Law applies:
(1) the enactment, adoption, promulgation, issuance, material modification or written change
in administrative or judicial interpretation on or after the Commencement Date of any Applicable Law (other than
Applicable Law enacted by the County);
(2) the order or judgment of any Governmental Body (other than the County), on or after the
Commencement Date, to the extent such order or judgment is not the result of willful or negligent action, error or
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omission or lack of reasonable diligence of the County or of the City, whichever is asserting the occurrence of a
Change in Law; provided, however, that the contesting in good faith or the failure in good faith to contest any such
order or judgment shall not constitute or be construed as such a willful or negligent action, error or omission or lack
of reasonable diligence; or
(3) the denial of an application for, delay in the review, issuance or renewal of, or
suspension, termination, interruption, imposition of a new or more stringent condition in connection with the
issuance, renewal or failure of issuance or renewal on or after the Commencement Date of any Legal Entitlement to
the extent that such denial, delay, suspension, termination, intemtptioN imposition or failure materially and
adversely interferes with the performance of this Agreement, if and to the extent that such denial, delay, suspension,
termination, intemiption, imposition or failure is not the result of willful or negligent action, error or omission or a
tack of reasonable diligence of the County or of the City, whichever is asserting the occurrence of a Change in Law;
provided, however that the contesting in good faith or the failure in good faith to contest any such denial, delay,
suspension, termination, interruption, imposition or failure shall not be construed as such a willful or negligent
action, error or omission or lack of reasonable diligence.
A "Change in Law" shall include but not be limited to any new or revised requirements relating to
the funding or provision of disposal services, including but not limited to any regulations for disposal operations or
activities associated with the remediation, closure, funding or monitoring of closed sites with respect to facilities
comprising the Disposal System, or facilities which the County previously utilized to provide waste disposal,
transfer, recycling, processing or other waste related activities.
"City" means, as applicable, the city or Sanitary District designated on the cover page of this Agreement
and party to this Agreement.
"City Acceptable Waste" means all Acceptable Waste which was originally discarded by the first generator
thereof within the geographical limits of the City, and Residue from the foregoing wherever produced, whether
within or outside the City (or Tonnage equivalencies of such Residues, as and to the extent provided in
subsection 3.1(C) hereof). '
"Commencement Date" means the date on which the obligations of the parties hereto commence,
established as provided in Section 6.2(5) hereof.
"Contract Date" means the first date on which this Agreement has been executed by both parties hereto.
"Contract Rate" has the meaning specified in Section 4.2 hereof.
"Contract Year" means the fiscal year commencing on July 1 in any year and ending on .Tune 30 of the
following year.
"Controllable Waste" means all City Acceptable Waste with respect to which the City has the legal or
contractual ability to determine the disposal location therefor and which is:
(1) Non -Recycled City Acceptable Waste;
(2) not generated from the operations of the Governmental Bodies which, under Applicable
Law, have the independent power to arrange for the disposal of the waste they generate; and
(3) collected and hauled by Franchise Haulers.
"County" means the County of Orange, a political subdivision of the State of California and party to this
Agreement.
"County Plan" means the irttegrated waste management plan of the County approved by the Board pursuant
to the Act as in effect from time to time.
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"County Acceptable Waste" means Acceptable Waste generated in the County,
"County OC Waste & Recycling Enterprise Fund" means the waste management enterprise fund
established and managed by the County pursuant to Section 25261 of the Government Code separate from its other
funds and accounts for receipts and disbursements in connection with the Disposal System.
"County -wide Recycling Services" has the meaning set forth in subsection 3.7(A) hereof.
"Cumulative Tonnage Target" for any given Contract Year means the amount specified in Appendix 2
hereto with respect to such Contract Year.
"Department" means OC Waste & Recycling, and any agency, department or other Governmental Body
which succeeds to the duties and powers thereof.
"Disposal Agreements" means each of the waste disposal agreements entered into between the County and
any city within the County, Sanitary District or operator of any Transfer Station located in the County in accordance
herewith.
"Disposal Services" means the solid waste disposal services to be provided by the County pursuant to the
Service Covenant and otherwise hereunder.
"Disposal System" means the Orange County Waste Disposal System which includes solid waste disposal
operations at three active landfills (Olinda Alpha, Frank R. Bowerman and Prima Deshecha); four regional
Household Hazardous Waste Collection Centers; as well as services, such as monitoring and other activities, at
closed refuse stations formerly operated by the County, as appropriate under Applicable Law.
"Environmental Fund" means the fined or funds held by the County to pay unanticipated costs of
environmental mitigation, remediation or liability.
"Franchise Hauler" means any hauler or collector who provides Acceptable Waste collection services
within the City pursuant to, or under authority granted by, a permit, contract, franchise or other agreement with the
City. The term Franchise Hauler includes the City itself if Acceptable Waste collection and transportation Services
are provided directly by City operated municipal collection service.
"Governmental Body" means any federal, State, county, city or regional legislative, executive, judicial or
other governmental board, agency, authority, commission, administration, court or other body, or any officer thereof
acting within the scope of his or her authority.
"Hazardous Substance" has the meaning given such term in CERCLA, the Carpenter -Presley -Tanner
Hazardous Substance Account Act (Califomia Health and Safety Code Section 25300 et seq.), and Titles 22 and 26
of the California Code of Regulations and other regulations promulgated thereunder.
"Hazardous Waste" means (a) any waste which by reason of its quality, concentration, composition or
physical, chemical or infectious characteristics may do either of the following: cause, or significantly contribute to,
an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness, or pose a
substantial threat or potential hazard to human health or the environment, or any waste which is defined or regulated
as a hazardous waste, toxic substance, hazardous chemical substance or mixture, or asbestos under Applicable Law,
as amended from time to time including, but not limited to: (1) the Resource Conservation and Recovery Act and
the regulations contained in 40 CFR Parts 260-281; (2) the Toxic Substances Control Act (15 U.S.C. Sections 2601
et seq.) and the regulations contained in 40 CFR Parts 761-766; (3) the California Health and Safety Code,
Section 25117 (West 1992 & Supp. 1996); (4) the California Public Resources Code, Section 40141 (West 1996);
and (5) future additional or substitute Applicable Law pertaining to the identification, treatment, storage or disposal
of toxic substances or hazardous wastes; or (b) radioactive materials which are source, special nuclear or by-product
material as defined by the Atomic Energy Act of 1954 (42 U.S.C. Section 2011 et seq.) and the regulations
contained in 10 CFR Part 40.
4
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"Imported Acceptable Waste' means Acceptable Waste that is generated outside of the geographical
boundaries of the County and delivered to the Disposal System.
"Independent Haulers" means those waste coil ection/hau let companies primarily engaged as a principal
business in the collection and transportation of municipal solid waste generated in the County of ()range Which are
not obligated to deliver County Acceptable Waste to the Disposal System pursuant to a franchise, contract, permit or
other authorization with a city in the County.
"Initial Term" has the meaning specified in Section 6.1(A) hereof.
"Legal Entitlement" means all permits, licenses, approvals, authorizations, consents and entitlements of
whatever kind and however described which are required under Applicable Law to be obtained or maintained by any
person with respect to the Disposal System or the performance of any obligation under this Agreement or the
matters covered hereby.
"Legal Proceeding" means every action, suit, litigation, arbitration, administrative proceeding, and other
legal or equitable proceeding having a bearing upon this Agreement.
"Loss -and -Expense" means any and all loss, liability, obligation, damage, delay, penalty, judgment,
deposit, cost, expense, claim, demand, charge, tax., or expense, including all fees and costs.
"Net Import Revenues" has the meaning ascribed thereto in Section 3.6(E).
"Non -Recycled City Acceptable Waste" means all City Acceptable Waste other than Recycled City
Acceptable Waste.
"overdue Rate" means the maadmum rate of interest permitted by the laws of the State, if applicable, or the
prime rate established from time to time by the Bank of America, N.A. or its successors and assigns, plus 2%,
whichever is lower.
"Participating City" means any city or Sanitary District executing a Disposal Agreement in accordance
with Section 3.6(A) hereof and meeting all requisite conditions to the Commencement Date thereof
"Plan of Adjustment" means the County's Modified Second Amended Plan of Adjustment, confirmed by
the United States Banlauptcy Court Central District of California in that Conformed Order Confirming Modified
Second Amended Plan of Adjustment, filed May 17, 1995.
"Posted Disposal hate" means the per ton tipping fee charged by the County for the disposal of solid waste
at the Disposal System by parties which are not entitled to disposal service at the Contract Rate pursuant to this
Agreement.
"Prohibited Medical Waste" means any medical or infectious waste prohibited or restricted under
Applicable Law from being received by or diVosed at the Disposal System.
"Qualified Household Hazardous Waste" means waste materials determined by the Board, the Department
of Health Services, the State Water Resources Control Board, or the Air Resources Board to be:
(1) Of a nature that they must be listed as hazardous in State statutes and regulations;
(2) Toxic/ignitable/corrosivelreactive; and
(3) Carcinogenic/tnutagenicJteratogenic;
which are discarded from households as opposed to businesses. Qualified Household Hazardous Waste shall not
include Unacceptable Waste.
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"Recycled City Acceptable Waste" means any otherwise Controllable Waste which is separated from
Acceptable Waste by the generator thereof or by processing and which is "recycled" within the meaning of
Section 40180 of the Public Resources Code.
"Renewal Term" has the meaning specified in Subsection 6.](B) hereof.
"Residue" means any material remaining from the processing, by any means and to any extent, of City
Acceptable Waste or Recycled City Acceptable Waste; provided, however, that Residue shall not include minimal
amounts of material remaining after such processing (which minimal amounts shall in no event exceed 10% of the
amount of such City Acceptable Waste or Recycled City Acceptable Waste prior to processing).
"Resource Conservation and Recovery Act" or "RCRA" means the Resource Conservation and Reeovety
Act, 42 U.S.C.A. Section 6901 etseg., as amended and superseded.
"Restricted Reserves" has the meaning specified in Section 4.5.
"Sanitary Districts" means the sanitary districts in the County formed pursuant to the Sanitary District Act
of 1923, codified at Cal. Ann. Health & Safety Code Section 6400 et seq., as amended, supplemented, superseded
and replaced from time to time.
"Self -Hauled Waste" means City Acceptable Waste collected and hauled by Self -Haulers.
"Self -Hauler" means any person not engaged commercially in waste haulage who collects and hauls
Acceptable Waste generated from residential or business activities conducted by such person.
"Service Coordinator" means the service coordinator for either party designated pursuant to
subsection 3.5(C) hereof.
"Service Covenant" means the covenants and agreements of the County set forth in Sections 3.2 and 3.3
hereof.
"Source -Separated Household Hazardous Waste" means Qualified Household Hazardous Waste which has
been segregated from Acceptable Waste originating or generated within the geographical jurisdiction of the City at
the source or location of generation.
"Source -Separated Household Hazardous Waste Disposal System" means the collection centers, facilities,
contracts and other arrangements owned or administered by the County for the receipt, handling and disposal of
Source -Separated Household Hazardous Waste.
"State" means the State of California
"Term" shall mean the Term of this Agreement.
`Ton" means a "short ton" of 2,000 pounds.
'Transfer Station" means any materials recovery facility, composting facility, intermediate processing
facility, recycling center, transfer station or other waste handling or management facility to which solid waste
collected for the City is delivered for processing before disposal in the Disposal System.
"Unacceptable Waste" means Hazardous Waste; Hazardous Substances; Prohibited Medical Waste;
Qualified Household Hazardous Waste separated from Acceptable Waste; explosives, ordnanee, highly flammable
substances, and noxious materials and lead -acid batteries (except if delivered in minimal quantities); drums and
closed containers; liquid waste, oil, human wastes; machinery and equipment from commercial or industrial sources,
such as hardened gears, shafts, motor vehicles or major components thereof, agricultural equipment, trailers, marine
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vessels and steel cable; hot loads; and any waste which the Disposal System is prohibited from receiving under
Applicable Law.
"Uncontrollable Circumstance" means any act, event or condition affecting the Disposal System, the
County, the City, or any of their Franchise Haulers, contractors or suppliers to the extent that it [materially and
adversely affects the ability of either party to perform any obligation under the Agreement (except for payment
obligations), if such act, event or condition is beyond the reasonable control of and is not also the result of the
willful or negligent act, error or omission or failure to exercise reasonable diligence on the part of the party relying
thereon as justification for not performing an obligation or complying with any condition required of such party
under the Agreement; provided, however, that the contesting in good faith or the failure in good faith to contest such
action or inaction shall not be construed as willful or negligent action or a lack of reasonable diligence of either
party. Examples of Uncontrollable Circumstances are:
(l) an act of God, landslide, lightning, earthquake, fire, explosion, flood, sabotage or similar
occurrence, acts of a public enemy, extortion, war, blockade or insurrection, riot or civil disturbance; and
(2) a Change in Law.
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"Unincorporated Area" means those portions of the County which are not contained within the
jurisdictional boundaries of incorporated cities.
"Unincorporated Area Acceptable Waste" means Acceptable Waste originating from or generated within
the Unincorporated Area.
"Unrestricted Reserves" means cash and other reserves of the Disposal System which are not Restricted
Reserves.
"Waste Disposal Covenant" means the covenants and agreements of the City set forth in Section 3.1 hereof.
SECTION 1.2 IN IE 2PRETATION. In this Agreement, unless the context otherwise requires.
(A) References Hereto. The terms "hereby,', "hereof', "herein', "hereunder" and any similar
terms refer to this Agreement, and the term "hereafter means after, and the term "heretofore" means before, the
Contract Date.
(B) Gender and Plurality. Words of the masculine gender mean and include correlative
words of the feminine and neuter genders and words importing the singular number mean and include the plural
number and vice versa.
(C) Persons. Words importing persons include firms, companies, associations, general
partnerships, limited partnerships, trusts, business trusts, corporations and other legal entities, including public
bodies, as well as individuals.
(D) Headinzs. The table of contents and any headings preceding the text of the Articles,
Sections and subsections of this Agreement shall be solely for convenience of reference and shall not constitute a
part of this Agreement, not shall tbey affect its meaning, construction or effect.
(E) No Third Party Beneficiaries. Nothing in this Agreement is intended to confer on haulers
or any other person other than the parties hereto and their respective permitted successors and assigns hereunder any
rights or remedies under or by reason of this Agreement.
(F) Counterparts. This Agreement may be executed in any number of original counterparts.
All such counterparts shall constitute but one and the same Agreement.
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(G) A h- vs� -cable Law_ This Agreement shall be governed by and construed in accordance with
the Applicable Laws of the State of California.
(H) Severability. If any clause, provision, subsection, Section or Article of this Agreement
shall be ruled invalid by any court of jurisdiction; then the parties shall: (1) promptly meet and negotiate a substitute
for such clause, provision, subsection, Section or Article which shall, to the greatest extent legally permissible,
effect the intent of the parties therein; (2) if necessary or desirable to accomplish item (1) above, apply to the court
having declared such invalidity for a judicial construction of the invalidated portion of this Agreement; and
(3) negotiate such changes in, substitutions for or additions to the remaining provisions of this Agreement as may be
necessary in addition to and in conjunction with items (1) and (2) above to effect the intent of the parties in the
invalid provision. The invalidity of such clause, provision, subsection, Section or Article shall not affect any of the
remaining provisions hereof, and this Agreement shall be construed and enforced as if such invalid portion did not
exist, unless such invalidity frustrates the underlying primary purpose of the Agreement.
(1) ante rt? ation; Preservation of Certain Aereemarrts. This Agreement contains the entire
agreement between the parties with respect to the transactions contemplated hereby. This, Agreement shall
completely and fully supersede all prior understandings and agreements between the Parties with respect to such
transactions; provided, however, that this Agreement shall not supersede the following agreements:
I) MOU, dated March 10, 1992, between the City of Brea and the County of
Orange regarding the Olinda Alpha Landfill as amended on April 6, 1993 and November 29,1994;
2) MOU, dated May 11, 1995, between the City of Brea and the County of Orange
regarding importation of out -of -County waste to the Olinda Alpha Landfill;
3) Settlement Agreement, dated August 1, 1984, between the City of Irvine and the
County of Orange regarding the Bee Canyon Landfill (currently tailed Frank R. Bowerman Landfill);
4) MOLT, dated May 16, 1995, between the City of Irvine and the County of
Orange regarding importation of out-of-Cotmty waste to the Frank R Bowerman Landfill;
5) MOU, dated September 12, 1995, and amended November 21, 1995, between
the City of San Juan Capistrano and the County of Orange regarding importation of out -of -County waste to the
Prima Deshecha Landfill;
6) MOU, dated July 1, 1997, between the City of San Ciemente[, the Orange
County Flood Control District] and the County of Orange regarding the Prima Deshecha Landfill; and
7) Cooperative Agreement, dated August 15, 2006, between the County and the
City of Irvine.
(J) Recitals. The recitals to this Agreement are not intended to bind the parties hereto. In
the event of a conflict between the recitals and the operative provisions of this Agreement, the operative provisions
shall prevail. The recitals shall not be used to interpret the provisions of the Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
SECTION 2.1 (REPRESENTATIONS AND WARRAMIES OF THE CITY. The City represents and
warrants that:
(A) Exi�ce. The City is a general law or charter city validly existing under the
Constitution and laws of the State.
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(B) Due Authorization. The City has duly authorized the execution and delivery of this
Agreement, and this Agreement has been duly executed and delivered by the City.
SECTION 2.2 REPUSENTATION ND WARRANTIES OF THE CO UN1 `l. The County
represents and warrants that:
(A) Existence. The County is a political subdivision of the State of California validly
existing under the Constitution and laws of the State.
(B) Due Autharization. The County has duly authorized the execution and delivery of this
Agreement, and this Agreement has been duly executed and delivered by the County.
ARTICLE III
DELIVERY AND ACCEPTANCE OF WASTE
AND PROVISION OF DISPOSAL SERVICE
SECTION 3.1 DELIVERY OF WASTE.
(A) Waste Disposal . Covenant. Subject to the occurrence of the Commencement Date and
throughout the Term of this Agreement, the City shall exercise all legal and contractual power and authority which it
may possess from time to time to deliver or cause the delivery of all Controllable Waste to the Disposal System in
accordance herewith.
(B) Recxcled City Acceptable Waste. The parties hereto acknowledge the responsibility of
the City to meet the recycling and landfill diversion goals contained in the Act. Nothing in this Agreement is
intended or shall be interpreted to prohibit or impair the ability of the City to meet sucb responsibilities, or to restrict
the right of the residents, businesses or organizations in the City to practice source separation, recycling, composting
or other materials recovery activities, or to restrict the right of the City to conduct, sponsor, encourage or require
such activities in any form. No reduction in the amount of Controllable Waste generated in the City and delivered to
the Disposal System by or on behalf of the City which may result from any such source separation or recycling
program shall cause the City any liability hereunder (other than potential adjustment to the Contract Rate to the
extent provided in Article rV hereof) and shall not constitute a breach of this Agreement.
(C) Waste Deli3W!2d toTransfer Station. All Residue from any processing of Controllable
Waste by materials recovery, composting, recycling or other means, wherever performed, shall constitute
Controllable Waste and be subject to the Waste Disposal Covenant. Where City Acceptable Waste is processed at a
facility which concurrently processes other Acceptable Waste in a manner which produces commingled residue
which cannot be traced to a geographic source, generic residues from such facility in Tonnage equal to the residues
that would have been produced had City Acceptable Waste only been processed at the facility shall constitute
Controllable Waste and be subject to the Waste Disposal Covenant. Any City Acceptable Waste or material derived
or segregated therefrom which is held in storage and asserted by the possessor thereof to constitute Recycled City
Acceptable Waste awaiting sale or distribution to the secondary materials markets shall constitute Controllable
Waste if, when and to the extent that the storage or diversion thereof can be reasonably deemed to constitute an
evasion of the Waste Disposal Covenant rather than generally recognized, accepted and prevailing practice in the
Southern California materials recovery and recycling industry conducted in accordance with Applicable Law. In
order for the owner and/or operator of a transfer station to be entitled to deliver Acceptable Waste from a
Participating City to the Disposal System for the Contract Rate as provided in Article IV, such owner and/or
operator must execute a direct agreement with the County, acmowledgiug and agreeing to comply with the
obligation of the Participating City to cause the delivery of all Controllable Waste to the Disposal System pursuant
to this Agreement. In addition, the County shall be authorized to implement procedures to determine if Acceptable
Waste delivered by the owners or operators of Transfer Stations is entitled to utilize the Disposal System for the
Contract Rate. Such procedures may include requiring Transfer Stations to certify, under penalty of perjury, the
source of any such Acceptable Waste. If necessary, the County may require that, in order to qualify for use of the
Disposal System for the Contract Rate, Transfer Stations must deliver Controllable Waste in loads containing only
Controllable Waste, and not commingled with Acceptable Waste from entities which are not Participating Cities or
Participating Independent Haulers.
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(D) Power to Obligate Waste Disposal and Comply with this Agreement. On or before the
Commencement Date, (i) any City franchise, contract, lease, or other agreement which is lawfully in effect relating
to or affecting Controllable Waste shall provide, or shall have been amended to provide, that the City shall have the
right without material restriction on and after the Commencement Date to direct the delivery of all Controllable
Waste to a disposal location selected by the City (whether or not such Controllable Waste is delivered to a transfer
station as an intermediate step prior to landfill disposal) and otherwise to comply with its obligations under this
Agreement with respect to Controllable Waste and Franchise Haulers, and (ii) the City shall designate the Disposal
System as the disposal location pursuant to such franchise, contract, lease or other agreement. On and after the
Commencement Date and throughout the Term of this Agreement the City (a) shall not enter into any franchise,
contract, lease, agreement or obligation, issue any permit, license or approval, or adopt any ordinance, resolution or
law which is materially inconsistent with the requirements of the Waste Disposal Covenant, and (b) shall maintain
non-exclusive or exclusive franchises or other contractual arrangements over any City Acceptable Waste which, as
of the Contract Date, is subject to non-exclusive or exclusive franchise or other contractual arrangements. The City
agrees that. the County shall be a third pasty beneficiary of the obligation of Franchise Haulers to deliver
Controllable Waste to the Disposal System, and may directly enforce such obligation through any legal means
available. The City shall notify in writing each Franchise Hauler of the County's third party beneficiary rights.
(E) Waste Flow Enforcement. (1) The City, in cooperation with the Department, shall
establish, implement, carry out and enforce a waste flow enforcement program which is sufficient to assure the
delivery of all Controllable Waste to the Disposal System pursuant to and in accordance with the Waste Disposal
Covenant for disposal at the times and in the manner provided herein. The waste flow enforcement program shall
consist of amending City franchises, permits or authorizations with all Franchise Haulers, to the extent required by
this Section and to the extent allowed by law, and shall include in addition, to the extent necessary and appropriate
in the circumstances to assure compliance with the Waste Disposal Covenant, but shall not be limited to:
(i) licensing or permitting Franchise Haulers, upon the condition of compliance with the Waste Disposal Covenant,
(ii) providing for and taking appropriate enforcement action under any such franchise, license, or permit, such as but
not limited to the suspension, revocation and termination of collection rights and privileges, the imposition of fines
or collection of damages, and the exercise of injunctive relief against non -complying Franchise Haulers and
(iii) causing any Transfer Station to which Controllable Waste is delivered for processing to deliver certification,
under the penalty of perjury, of the amounts of Controllable Waste received and Residue remaining from processing
at such Transfer Station.
(2) The City acknowledges and agrees that in the event of a breach of the Waste Disposal Covenant by the
City, the City shall pay the County an amount equal to the amount that the City would have been required to pay to
the County had the Waste Disposal Covenant not been breached, which shall be calculated by (x) subtracting the
number of tons actually delivered during the month(s) of the breach from the number of tons that were delivered
during the same month(s) closest in time when there was no such breach, even if such month(s) closest in time was
prior to the Term, and (y) multiplying such amount by the Contract Rate in effect at the time of such breach (or any
higher rate with respect to which the County has provided notice pursuant to Section 4.2). In the event that the
County terminates the Waste Disposal Agreement as a result of such breach, the damages due as a result of such
terminiation shall be equal to (aa) the average monthly deliveries by the City for the twelve months prior to the
commencement of the breach multiplied by (bb) the Contract Rate in effect at the time of such breach (or any higher
rate withrespect to which the County has provided notice pursuant to Section 4.2), multiplied by (cc) the number of
months that would have remained in the Term of the Agreement had the termination not occurred. The parties
recognize that if the City fails to meat its obligations hereunder, the County will suffer damages and that it is and
will be impracticable and extremely difficult to ascertain and determine the exact amount of such damages.
Therefore, the parties agree that the damages specified above represent a reasonable estimate of the amount of such
damages, considering all of the circumstances existing on the date herein, including the relationship of the sums to
dee range of harm to the County that reasonably could be anticipated and anticipation that proof of actual damages
would be costly or inconvenient. In signing this Agreement, each party specifically confirms the accuracy of the
statements made above and the fact that each party had ample opportunity to consult with legal counsel and obtain
an explanation of this liquidated damage provision at the time that this Agreement was wade.
(F) Legal ChallMges to Franchise System. The City shall use its best efforts to preserve,
protect and defend its right to exercise and comply with the Waste Disposal Covenant against any challenge thereto,
legal or otherwise (including any lawsuits against the City or the County, whether as plaintiff or defendant), by a
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Franchise Hauler or any other person, based upon breach of contract, violation of law or any other legal theory. The
City shall bear the cost and expense of any such Legal Proceeding or other challenge. In the event any such Legal
Proceeding relating to the Waste Disposal Covenant or the City's exercise thereof establishes in a final
determination that such covenant or exercise thereof is void, unlawful or unenforceable, or if any Franchise Hauler
fails to deliver Controllable Waste to the Disposal System in breach of its franchise with the City on the grounds that
a judicial determination made by any court or other Applicable Law has rendered its obligation to deliver
Controllable Waste to the Disposal System void, unlawful or unenforceable on any legal grounds, with the result
that actual waste deliveries to the Disposal System fall below the Cumulative Tonnage Targets, the County shall be
entitled to avail itself of the remedies described in Section 4.2(B) hereof.
(G) Franchise Haulers. The City shall compile and provide the Department with the
following information concerning all Franchise Haulers: uame, address and phone number; identification number;
area of collection and transportation; and franchise and permit terms.
(H) Waste Inf ro mation System. The City shall cooperate with the Department in collecting
information and otherwise monitoring Franchise Haulers in order to assure compliance with this Agreement. Such
information may include, to the extent practicable, data pertaining to Controllable Waste collected, transported,
stored, processed and disposed of, Recycled City Acceptable Waste collected, transported, stored, processed and
marketed or disposed of, Franchise Haulers' franchise, permit or license terms, collection areas, transportation
routes and compliance with Applicable Law; and all other information which may reasonably be required by the
Department in connection with this Agreement. The City agrees to include in any revised franchise, contract, license
or permit or other authorization granted to Franchise Haulers an obligation of the Franchise Hauler to provide to the
County information relating to the Controllable Waste collected by such Franchise Hauler, including origins from
which such Controllable Waste was collected, tonnage by type of load (residential, commercial, roil -off box),
customer service levels, tonnage delivered by transfer station or material recovery facility utilized, and other related
information.
(1) City Actions Affecting County. The City agrees to carry out and fulfill its
responsibilities under this Agreement and Applicable Law so as to permit full and timely compliance by the County
with its covenants and agreements with the State. In particular, the City agrees not to conduct, authorize or permit
any disposal services for Controllable Waste to be provided in competition with the Disposal Services provided by
the County hereunder, and not to take or omit to take any action with respect to Controllable Waste or its collection,
tmasportation, transfer, storage, treatment or disposal that may materially and adversely affect the County's ability
to achieve such timely compliance. Notwithstanding the foregoing, the City shall not be required to deny any permit
or license or refuse to grant any approval while exercising its police powers.
(1) No Right of Waste 5ub5titubion. Nothing in this Agreement shall authorize or entitle the
City to deliver or cause the delivery to the Disposal System of Acceptable Waste originating from or generated
outside the jurisdiction of the City, nor obligate the County to receive or dispose of any such Acceptable Waste.
The City shall not assign in whole or in part its right to deliver or cause to be delivered Controllable Waste to the
County hereunder, and shall not permit any Acceptable Waste originating from or generated outside the jurisdiction
of the City to be substituted for Controllable Waste for any purpose hereunder.
(YQ Agpexations Md Restructumg. It is the intention of the parties that this Agreement and
the obligations and rights of the City hereunder, including partieularly the Waste Disposal Covenant and the
Contract Rate, shall, to the extent permitted by Applicable Law, extend to any territory annexed by the City (or any
territory with respect to which the City assumes, after March 30, 2008, solid waste management responsibility from
a Sanitary District or other public entity) and shall bind any successor or restructured Govertttnental Body whim
shall assume or succeed to the rights of the City under Applicable Law.
SECTION 3.2 PROVISION OF DISPOSAL SERVICES BY THE COUNfX.
(A) Service Covenant. Commencing on the Commencement Date, the County shall provide
or cause the provision of the service of (1) receiving and disposing of all Controllable Waste at the Disposal System
(or such other facilities, including transfer stations, as the County may determine to use), (2) disposing in
accordance with subsection 3.2(C) hereof of Controllable Waste which, at any time and for any reason, is in excess
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of the disposal capacity of the Disposal System, and (3) in accordance with subsection 3.3(C) hereof, disposing of
Unacceptable Waste inadvertently accepted at the Disposal System. The County, to the maximum extent permitted
under Applicable Law, shall use its best efforts to keep the Olinda Alpha, Prima Deshecha and Frank R. Bowerman
Landfills open for the receipt of waste for disposal or transfer of Controllable Waste pursuant to this Agreement.
The County shall do and perform all acts and things which may be necessary or desirable in connection with its
covenants in this subsection, including without limitation all planning, development, administration,
implementation, construction, operation, maintenance, management, financing and contract work related thereto or
undertaken in connection therewith. The County shall exercise all reasonable efforts to minimize the costs incurred
in complying with the Service Covenant consistent with its responsibilities hereunder and under this Agreement,
Applicable Law and prudent solid waste management practice and environmental considerations.
(B) Particular Facilities. The Department and the City shall consult and cooperate in
determining whether and to what extent from time to time other landfills other than that primarily used by the City
shall be utilized to receive Controllable Waste. The Department shall immediately advise the City by telephone of
any situation, event or circumstance which results in the partial or complete inability of the County to receive
Controllable Waste at any particular landfill within the Disposal Systern, its effect on the County's ability to perform
its obligations hereunder, and the County's best estimate of the probable duration. The Department shall confirm
such advice in writing within 24 hours of the occurrence of any such inability. The County shall use its best efforts
to resume normal operation of the landfill primarily used by the City as soon as possible. Fn the event of a
temporary material increase in average daily deliveries of Controllable Waste from the City which the County
reasonably believes could result in the permitted daily disposal capacity limit to be exceeded with respect to a
particular landfill within the Disposal System, the County shall have the right to redirect the increased Controllable
Waste to another landfill within the Disposal System for the duration of the increase in average daily deliveries;
provided, however, that in such circumstances the County shall utilize reasonable efforts to first redirect waste
which is not Controllable Waste.
(C) Compliance with Service Covenant I`lof ExoysW for anv Rea , Commencing on the
Commencement Date, the obligations of the County to duly observe and comply with the Service Covenant shall
apply continuously and without interruption for the Term of this Agreement. In the event that any Change in Law or
other Uncontrollable Circumstance impairs or precludes compliance with the Service Covenant by the means or
methods then being employed by the County, the County shall implement alternative or substitute means and
methods to enable it to satisfy the terms and conditions of the Service Covenant. 1k the event that a Change in Law
precludes the County from complying with such covenants with the means or methods then being employed and
from utilizing any alternate or substitute means or methods of compliance, the County shall continuously use all
reasonable efforts to effectuate executive, legislative or judicial change in or relief from the applicability of such law
so as to enable the County lawfully to resume compliance with such covenants as soon as possible following the
Change in Law.
SECTION 3.3 COUNTY RIGHT TO REFUSE WAS -TE.
(A) Right of Refusal. Notwithstanding any other provision hereof, the County may refuse
delivery of:
(1) Hazardous Waste;
(2) Controllable Waste delivered at hours other than those provided iu Section 3.5
hereof;
(3) Waste that does not constitute Acceptable Waste;
(4) Waste that is delivered by any party which has not executed a Waste Disposal
Agreement; and
(S) Controllable Waste consisting primarily of construction and demolition debris or
inerts which may cause a particular facility's daily tonnage limit to be exceeded.
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(B) Identification of Unacceptable Waste. The Department shall have the right (but not the
duty or the obligation) to inspect the vehicles of all Franchise Haulers delivering material to the Disposal System,
and may require that the Franchise Hauler remove any Unacceptable Waste from such vehicle before it is unloaded,
If the Department determines that it is impractical to separate Controllable Waste from Unacceptable Waste in any
vehicle, or if the Franchise Hauler delivering such waste is unwilling to make such separation, or if any vehicle is
carrying waste which may spill or leak, then the Department may reject the entire vehicle, and the City shall
forthwith remove or cause the removal of the entire delivery from the Disposal System. 'The Deparanent may take
all reasonable measures to prevent waste from being blown or scattered before and during unloading, The City shall
cause the Franchise Haulers to observe and comply with Applicable Law, the operating rules and regulations of the
Department, and the provisions of this Agreement prohibiting the delivery of Unacceptable Waste to the Disposal
System.
(C) Hazardous Waste and Hazardous Substances. The parties acknowledge that the Disposal
System has not been designed or permitted, and is not intended to be used in any manner or to any extent, for the
handling, transportation, storage or disposal of Hazardous Waste or Hazardous Substances. Neither the County nor
the City shall countenance or knowingly permit the delivery of Hazardous Waste or Hazardous Substances to the
Disposal System.
(D) Disposal of Unacceptable Waste and Hazardous Waste. If Unacceptable Waste or
Hazardous Waste is discovered in a vehicle at any landfill within the Disposal System, the driver of the vehicle will
not be permitted to discharge the load, If a vehicle is observed unloading Unacceptable Waste or Hazardous Waste
in the tipping area of a landfill within the Disposal System Department personnel will use reasonable efforts to
assure that such material has been characterized, properly secured and its disposition resolved. The return or
reloading onto the delivery vehicle of any Hazardous Waste, Prohibited Medical Waste or other waste requiring
handling or transportation shall be conducted in accordance with Applicable Law. Whenever Hazardous Waste is
detected at any landfill within the Disposal System, the Department shall take immediate action in accordance with
Applicable Law.
(E) Logur_c4_-�S_epamted Hous old dour Waste, The Cauaty shall mtiaiatain as part of the
Disposal System, a Source -Separated Household Hazardous Waste Disposal System for the disposal of Source, -
Separated Household Hazardous Waste. The disposal service provided by such system shall constitute part of the
Disposal Services, and shall be available to Participating Cities as part of the Contract Rate. The County may
impose additional fees and charges for services relating to Source -Separated Household Hazardous Waste with
respect to cities which are not parties to a Disposal Agreement. The County may provide for the expansion,
contraction or modification of the Source -Separated Household Hazardous Waste Disposal System and its services
to the extent necessary to ensure the Disposal System's viability; provided, however, if the County chooses to
reduce services, the County shall nonetheless continue to expend funds for the Source -Separated Household
Hazardous Waste Disposal System each year during the term of this Agreement in an amount at least equal to the
amount of funds expended for the Source_Separated Household Hazardous Waste Disposal System during fiscal
year 2006-07 as adjusted by changes in the Producer Price Index.
SECTION 3.4 UNINCORPORATED AREA ACCEPTABLE WASTE. Commencing on the
Commencement Date, the County in accordance with Applicable Law shall provide or cause to be provided the
service of disposing of non -recycled Acceptable Waste originating or generated within the Unincorporated Area
and, with respect to such waste, shall comply with the Waste Disposal Covenant as if the Cotrmty constituted a City
subject to the Waste Disposal Covenant hereunder. Rates charged by the County for the disposal of each class of
non -recycled Acceptable Waste generated in the Unincorporated Area shall be the same as the Contract Fee charged
for the disposal of each class of Controllable Waste. The County shall use its best efforts to preserve, protect and
defend its right to exercise and comply with the Waste Disposal Covenant (with respect to non -recycled Acceptable
Waste generated in the Unincorporated Area) against any challenge thereto, legal or otherwise, by a Franchise
Hauler or any other person, based upon breach of contract, violation of law or any other legal theory. The County
shall bear the cost and expense of any such Legal Proceeding or other challenge (with respect to non -recycled
Acceptable Waste generated in the Unincorporated Area).
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SECTION 3.5 MISCELLANEOUS OPERATIONAL MATTERS.
(A) Ciperatina Hours. The County shall keep the Disposal System open for the receiving of
Controllable Waste during such regular operating hours as may be established by the Department in the operating
rules and regulations applicable to the Disposal System, The County shall utilize best efforts to maintain
Substantially similar hours, as were in effect on January 2, 2009, for the receipt of waste through the term of this
Agreement (subject to Applicable Law).
(B) Scalegaand Weit?hinp. The Department shall operate and maintain permanent scales at
the Disposal System. The Department shall weigh all vehicles delivering waste by or on behalf of the City (whether
or not the County accepts such waste) and prepare a daily weight record with regard to such delivery.
(C) Service Coor. ' ator. The County and the City each shall designate in writing thirty days
prior to the expected Commencement Date a person to transmit instructions, receive information and otherwise
coordinate service matters arising pursuant to this Agreement (each a "Service Coordinator"). Either party may
designate a successor or substitute Service Coordinator at any time by notice to the other party.
(D) Review of Records. Each party may review the other party's books and records with
respect to matters relevant to the performance by either party under this Agreement or otherwise related to the
operation of the Disposal System to the extent allowed under the California Public Records Act (interpreted as if the
parties to this Agreement were natural persons for purposes of the Public Records Act).
SECTION 3.6 OTHER USERS QF THE DISPOSAL SYSTEM.
(A) On or Before [ . ' n ° �U�� , 20091. On or before [120 DAYS AFTER BOARD
APPROVAL], the County shall have the right to &ter into waste disposal agreements with Orange County entities
with respect to Acceptable Waste which was originally discarded by the first generator thereof within the
geographical limits of the County, including other cities in the County, Sanitary Districts, Transfer Stations and
Independent Haulers, which waste disposal agreements shall have terms and provisions substantially identical to the
terms and provisions of this Agreement; provided, however, that in no event shall such agreements have teras and
provisions more favorable than the terms and provisions of this Agreement (including but not limited to the Contract
Rate and availability of disposal capacity),
(B) A$er C]liiW�.W ` '2,1 2009. After [120 DAYS AFTER BOARD APPROVAL], the
County shall have the right to enter into waste disposal agreements with Orange County entities, including any city,
Sanitary District, Transfer Station and Independent Hauler, or otherwise accept Acceptable Waste from such parties,
but only within the limitations contained in this Section. Any such agreement or waste acceptance agreement must
provide that the party delivering waste shall pay a Posted Disposal Rate at least 10% higher than the Contract Rate
unless the County determines it is in the best interest of the Disposal System to establish a Posted Disposal Rate less
than 10% higher than the Contract Rate. In no event shall the Posted Disposal Irate be equal to or less than the
Contract Rate. In addition, the County shall reserve the right in any such waste disposal agreement at any time, to
the extent permitted by Applicable Law, to refuse to receive and dispose of Acceptable Waste from any city, County
Sanitary District, Transfer Station and Independent Hauler if and to the extent that such receipt and disposal may
materially and adversely affect the ability of the County to comply with its obligations to the Participating Cities
under the Disposal Agreements to which each is a party.
(C) Receipt of Imported Acceptable
Waste on a Contract Basis. The County shall have the right to enter into a contract or other agreement with any
municipal or private non -County entity for the delivery of Imported Acceptable Waste on terms and couditions that
the County determines to be necessary to ensure and enhance the viability of the Disposal System for the benefit of
the County and the Participating Cities and to generate Net Import Revenues. The County certifies that in its good
faith judgment the contract or other agreement for the delivery of such waste will not materially and adversely affect
the ability of the County to receive and dispose of Acceptable Waste from the Participating Cities in accordance
with the applicable Disposal Agreements throughout the Term thereof: The term of any such agreement for the
disposal of Imported Acceptable Waste shall end by the later to occur of (i) December 31, 2015 or (ii) the date on
which County general purpose revenues are no longer expended to pay debt service on the Orange County Public
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Financing Authority Lease Revenue Refunding Bonds Series 2005, but in no event later than the last day of the
fiscal year commencing July 1, 2015.
(D) Self Haulers. The City and the County acknowledge that Self -Haulers shall be entitled to
deliver Self -Hauled Waste to the Disposal System, on a non -contract basis, at the Posted Disposal Rate. Such Self -
Haulers shall not be entitled to dispose of Acceptable Waste for the Contract Rate.
(E) Application and Use of Revenues From Other Users. All revenues received by the
County from the disposal of County Acceptable Waste by the Disposal System, and all revenues received by the
County from the disposal of Imported Acceptable Waste by the Disposal System, shall be deposited by the County
in the County OC Waste & Recycling Enterprise Fund and shall constitute revenues of the Disposal System.
Pursuant to the County's Plan of Adjustment, the County is entitled to receive net revenues (after payment of all
costs attributable to the acceptance of such Imported Acceptable Waste at the Disposal System) CNet Import
Revenues") from the disposal of imported Acceptable Waste by the Disposal System, and such Net Import
Revenues may be used for the payment of bankruptcy related obligations in accordance with the Plan of Adjustment.
Costs attributable to the disposal of Imported Acceptable Waste include deposits to the Environmental Fund,
deposits to closure and postclosure reserves, City host fees (if applicable), incremental operating costs (such as
manpower expenditures, equipment, services and supplies expenditures), state surcharges, and a pro rata share of
capital project costs. The parties acknowledge that their intention in determining to allow the importation of
Imparted Acceptable Waste for disposal by the Disposal System is to stabilize the Contract Rate at rates below those
which would otherwise prevail in the absence of such importation.
SECTION 3.7 COUNTY PROVISION OF WASTE DIVERSION SERVIC S.
(A) County -Wide Reoyclina Services. This Agreement does not require the County to
provide for any source reduction, materials recovery, recycling, composting, or otber waste diversion services by the
County'nor any payment therefor by the City, by Franchise Haulers or by ratepayers; provided, however, any
County -Wide Recycling Services may be funded through the County'OC Waste & Recycling Enterprise Fund. Any
such recycling services may be expanded, contracted or modified by the County at any time, in its sole discretion.
(B) SgRarate Ci1y:-Co=ty Diversion Sodu Agretments. Nothing in this Agreement is
intended to limit the right of the County to enter into a separate agreement with the City or any other person to
provide source reduction, materials recovery, recycling, composting or other waste diversion services. Any such
program conducted by the County, whether in participation with the City, any other of the Participating Cities, other
Cities, Sanitary Districts, Transfer Stations, Independent Haulers, Unincorporated Area or non -County entity, shall
be operated, managed and accounted for as a program separate and distinct from the Disposal Services program
contemplated by the Disposal Agreements and shall not be funded through the general revenues of the Disposal
System.
ARTICLE IV
CONTRACT RATE
SECTION 4.1 CHARGING AND SECURING PA NT OE CONTRACT RATE. The City
acknowledges that the County shall have the right to charge and collect a Contract Rate for the acceptance and
disposal of Controllable Waste delivered to the System by any Franchise Hauler. The Contract Rate shall be
calculated and established, and may be modified, as provided in Section 4.2 hereof. In addition, the City
acknowledges that the County shall have the right to establish as pad of the operating rules and regulations
reasonable measures to secure the payment of all Contract Rates.
SECTION 4.2 CONTRACT RATE.
(A) Establishment of Contract Rate. The Contract Rate payable by each Franchise Hauler
shall be (x) $22.00 per ton from the Commencement Date through June 30, 2010, and (y) $29.95 per ton on and after
July 1, 20I0, in bath cases contingent on the delivery to the Disposal System of an amount of Acceptable Waste at
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least equal to the Cumulative Tonnage Targets identified in Appendix 2, and subject to adjustment necessary to
reflect the circumstances set forth in this Section 4.2;
(i) increased costs incurred by the County (in excess of available insurance
proceeds) due to the occurrence of one or rare Uncontrollable Circumstances, other than Changes in Law;
(ii) costs incurred by the County (in excess of available insurance proceeds and
amounts available in the Environmental Fund for such purposes) remediating environmental conditions at the
Disposal System or inactive or closed disposal sites in the County, which, if uncorrected, could give rise to potential
claims under CERCLA or related federal or state statutes, including costs incurred providing indemnification to any
Participating City pursuant to subsection 7.3; or
(iii) tonnage shortfalls to the extent permitted by Sections 4.2(B);
(iv) average annual inflation prior to July 1, 2010 in excess of the levels set forth in
Section 4.2(I4) and escalation pursuant to Section 4.2(F) ;
(v) increased costs incurred by the County (in excess of available insurance
proceeds) due to the occurrence of one or more Changes in Law; or
(vi) Capital Costs in excess of the Capital Costs at any point in time during the term
hereof exceeding the Cumulative Capital Costs set forth in Appendix 3.
Prior to adjusting the Contract Rate as a result of any of the circumstances described in clauses (i), (ii) or (iii) above,
the County shat! utilize the following remedies m the following order of priority:
(x) reduce the costs of operating the Disposal System to the extent practicable; and
(y) utilize Unrestricted Reserves to pay costs of the Disposal System.
The County will not be required to utilize such remedies prior to adjusting the Contract Rate as a result of any of the
circumstances described in clauses (iv), (v) or (vi) above.
Any adjustments to the Contract Rate permitted by this Section shall be calculated by the County to reflect the actual
costs or expenses of addressing the circumstance or circumstances pursuant to which the adjustment is authorized
The County agrees that it will evaluate the feasibility of long term financing for significant capital costs where
appropriate.
(B) Countycceptable Waste Shortfall. In the event that the actual amount of County
Acceptable Waste delivered to the Disposal System at the end of any Contract Year is less than the Cumulative
Tonnage Target for such Contract Year for County Acceptable Waste, as specified in Appendix 2, the County shall
utilize the following options, in the following order of priority, in order to remedy any adverse effects of such
tonnage shortfall:
the Disposal System;
(i) reduce the costs of operating the Disposal System to the extent practicable;
(ii) utilize Restricted Reserves described in clause (iii) of Section 4.5 to pay costs of
(iii) utilize Unrestricted Reserves to pay costs of the Disposal System; and
(iv) adjust the Contract Rate.
In the event that implementation of the steps described above does not result in sufficient revenues to satisfactorily
address the shortfall in tonnage, the County shall have the right to terminate the Agreement on 60 days written
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notice to the City. In addition, in the event that actual deliveries to the Disposal System exceed the Cumulative
Tonnage Target as of the end of any Contract Year, the City acknowledges the County shall have the right to
establish reserves intended to reflect the potential for lower than expected annual waste deliveries in subsequent
years, and that any such reserves shall constitute "Restricted Reserves.
(C) [RESERVED]
(D) Interim Use of Remedies. In the event that, during any Contract Year, waste deliveries to
the Disposal System are 25% or more below delivery projections for such Contract Year with the result that the
County determines it is unlikely that the Cumulative Tonnage Target will be achieved as of the end of such Contract
Year, the County may utilize the remedies described in Section 4.2(13) prior to the end of such Contract Year;
provided, however, that if at the end of such Contract Year, the Cumulative Tonnage Target is actually met, the
County shall reimburse any adjustments to the Contract Rate made pursuant to this Section to Participating Cities.
Such reimbursement may be given as a credit or adjustment to the Contract Rate for future deliveries, rather than a
lump sura payment.
(E) Special Charges. Notwithstanding Section 4.2(A), the County shall have the right to
impose special charges for the receipt of hard to handle materials, such as bulky materials, construction and
demolition debris, tree stumps and sludge. Such special charges shall be calculated to reflect the reasonable
incremental costs to the County of accepting such hard to handle materials. In addition, in the event that the Board
of Supervisors of the County makes a determination to implement a facility (including but not limited to a transfer
station, landfill, conversion technology facility, or a materials recovery or processing facility), which facility would
be intended to provide for disposal alternatives after the closure of one or more of the landfills currently operating
within the Disposal System, the County may impose an additional charge of $0.50 per ton of Acceptable Waste in
order to pay the costs of the study, development, planning, construction and/or operation of such facility.
Adjustments pursuant to this Section 4.2(E) shall not require compliance with the provisions of Section
4.2(1).
(F) Escalation. The Contract Rate shall be adjusted each July 1, beginning July 1, 2011. The
change will be equal to the positive percentage change in the Consumer Price Index -- All Urban Consumers, U.S.
city average, All items, Not Seasonally Adjusted, Series ID CUUR0000SA0 ("CPI") as measured from the October
21 months prior to the rate adjustment to the October immediately preceding the rate adjustment. For example: The
July 1, 2011 rate adjustment shall be based upon the index change from October 2009, to October 2010, referred to
as year 1 and year 2 respectively in the following example _
Formula to calculate percentage change in the Contract Rate:
Step 1:
October Year 2 CPT I = % increase in Contract Rate
October Year 1 CPI I
Step 2: Current Contract Rate x (1+ % increase in Contract Rate) = Contract Rate as of July 1 Year 2
On each April 1, commencing April 1, 2011, the County shall provide the City with notice of the
adjustment to the Contract Rate to be effective the following July 1. Such notice shall contain the calculation of the
adjustment set forth above. The County will calculate the new Contract Rate each year.
In the event that the change in the CPT is negative, no rate adjustment will be made for that year. No
adjustment under this Section 4.2(F) will take place until the October CPI index surpasses the index level as of the
October immediately preceding the last annual rate adjustment pursuant to this Section 4.1(F), which will be
considered "year 1" in calculating the change in the Contract Rate.
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For example, if the CPI is measured as follows: October 2009 = 205, October 2010 = 204, October 2011 =
201, October 2012 = 208, then there would-be no adjustment in July 2011, or July 2012, and an adjustment equal to
the change from 205 to 208 would be implemented on July 1, 2013.
Adjustments pursuant to this Section 4.2(F) shall not require compliance with the provisions of Section
4.2(1).
(G) Adiustruent Resulting from Increased Fees. In addition to the other adjustments specified
herein, the Contract Rate shall be adjusted to reflect the imposition of new fees or increase in existing fees relating
to the disposal of Controllable Waste imposed by state, federal or other agencies (i.e., the State's Integrated Waste
Management fee, which is currently $1.40 per ton). The adjustment shall be equal to the amount of any new or
increased fee, and the adjustment shall take affect so as to coincide with the imposition of the new or increased fee.
The County shall provide notice of any increase pursuant to this Section 4.2(G) as soon as practicable after
becorning aware of the imposition of any fees described above.
Adjustments pursuant to this Section 4.2(G) shall not require compliance with the provisions of Section
4.2(1)•
(Ii) Calculation of Cumulative Inflation state. For purposes of Section 4.2(A)(iv) for
adjustments prior to July 1, 2011, the inflation shall be calculated as the change in the CPI between July of the year
of calculation and July 1, 2008. Inflation shall be deemed to exceed the levels set forth below if the ratio between
the CPI for July for the year of calculation (calculated in accordance with the formula below) and July 2008 exceeds
the ratio corresponding to such year of calculation on the table below. The ratio shall be calculated in accordance
with the following formula:
(July CPI of calculation year I CPI for July 2008)
Year of Calculation
Ra1ia
JulX 1 2008
1.0000
July 1 2009
1.0356
July 1 2010
1.0723
In the event the CPI is no longer published during the term of this Agreement, such other index identified by the
Bureau of Labor Statistics or otherwise generally accepted as a replacement for CPI shall be used for purposes of
this Agreement. In the event of an adjustment to the Contract Rate pursuant to this section 4.2(1, such adjustment
shall be applied to the Contract. Rate effective until June 30, 2010, and the Contract Rate effective July 1, 2010.
Adjustments pursuant to this Section 4.2(H) shall not require compliance with the provisions of Section
4.2(1)-
(1) Procedure for state Adjustments. In the event the County determines that it is entitled to
an adjustment of the Contract Rate pursuant to Section 4.2(A) (other than 4.2(A)(iv)) or Section 4.2(B), it shall
utilize the procedures described in this Section 4.2(l), The County shall be required to provide the City with at least
90 days prior written notice of the adjustment, which notice shall identify the specific event(s) or circumstances
which require the adjustment. The notice shall also specify the earliest date on which the County Board of
Supervisors shall consider the proposed adjustment. At least 45 days prior to such meeting of the Board of
Supervisors, the County shall provide the City with a report which shall contain the following information: a
description of the specific events) or circumstances which require the adjustment; a description (including cost
estimates) of any activities (which may include, but not be limited to capital improvements to the Disposal System)
required in order to remedy such event or circumstance; certification by the County that it has implemented the
remedies described in Section 4.2(A) or (B) prior to requiring the rate adjustment; and a description of the
methodology used by the County to calculate the adjustment to the Contract Rate (hereinafter the "County Report").
In the event the City disputes the adjustment, it shall provide the County with a written description of the reason for
the dispute at least 10 days prior to the meeting of the Board of Supervisors identified in the initial notice of the
County (hereinafter the "City Report'). The City Report shall be provided to the Board of Supervisors for
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consideration at Such meeting in connection with the proposed rate adjustment. At any time from and after the date
that the County provides the City with the County Report, upon the request of either party, the City and County shall
meet and confer in good faith to resolve any dispute that may arise regarding the proposed adjustment to the
Contract Rate. In any such meeting, the County shall be represented by the Director of the .Department or his or her
designee. In the event the Board of Supervisors approves all or a portion of the proposed rate adjustment, such rate
adjustment shal I become effective on the date identified in the initial notice sent by the County regardless of whether
or not the procedures in Section 4.2(J) are utilized, but' ubjcct to potential reimbursement pursuant to clause (I 1) of
Section 4.2(J).
(1) Procedure for Expedited Judicial Review of Contested Rate Adjustment. In the event
that, within 30 days after the effective date of any Contract Rate adjustment made pursuant to Section 4.2(I),
Participating Cities which, in the aggregate, accounted for more than 50% of the County Acceptable Waste
delivered to the County System in the twelve months preceding the Contract Rate adjustment, provide notice to the
County of their election to utilize the procedures described in this Section 4.2(J), then the provisions of this
Section 4.2(J) shall be utilized by such Participating Cities and the County to resolve the dispute over the Contract
Rate Adjustment. In the event that Participating Cities which have delivered the amount of waste contemplated in
the preceding sentence do not provide notice to the County of such election, the County shall have no obligation to
participate in or cooperate in the implementation of the procedures described below in this Section 4.2(J).
(1) In order to pursue the expedited judicial determination described in this Section
(the "Expedited Rate Determination"), the Participating Cities which have made the election described in the
paragraph above (the "Challenging Cities") must commence a civil action for breach of contract (the "Action") in
the Orange County Superior Court within 45 days of the date on which the Board of Supervisors approves the
challenged adjustment to the Contract Rate.
(2) Within two (2) days of filing the Action, the Challenging Cities shall personally
serve on the County Counsel both the summons and complaint, and a stipulation and request for the entering of an
order incorporating all of the procedural provisions relating to the Expeditpd Rate Determination as set forth in this
Section 4.2(J) (such stipulation and request for order is hereinafter referred to as the "Expedited Rate Determination
Stipulation"), The Expedited Kate Determination Stipulation shall be signed by each of the Challenging Cities.
(3) Within fifteen (15) days of the date of service upon the County of the summons
and complaint, and Expedited Rate Detemtination Stipulation, the County Counsel shall execute the Expedited Rate
Determination Stipulation and personally serve upon the Challenging Cities through their counsel of record the
Expedited Rate Determination Stipulation and its answer to the complaint in the Action. The Stipulation shall also
include a waiver by each of the parties of their right to a jury trial of the issues raised in the Action. The City and
the County mutually agree that the duty to execute the Expedited Rate Determination Stipulation and comply with
the procedures set forth for Expedited Rate Determination in this Section 4.2(,1) shall be, and are hereby deemed to
be, ministerial duties which the law specifically enjoins upon each of them, and shall be subject to enforcement by
the parties herein pursuant to Code of Civil Procedure Section 1085, et seq., or by means of a complaint for specific
performance.
(4) Within three (3) days of the date of service by the County upon the Challenging
Cities of the fully signed Expedited Rate Detennination Stipulation, the County and the Challenging Cities shall
jointly make ex parte application to the Orange County Superior Court in the Action for the issuance of the order
contained in the Expedited Rate Determination Stipulation. At such ex parte application, the County and the
Challenging Cities shall also seek to confirm with the Orange County Superior Court the briefing schedule, and
request a hearing date in accordance with the procedures set forth in this Section 4.2(l).
(5) Within ten (10) days of the date of service by the County upon the Challenging
Cities of the answer in the Expedited Rate Determination, the Challenging Cities shall file with the cotrrt and
personally serve upon the County the Challenging Cities' opening brief and the Record in the Expedited Rate
Determination. The opening brief shall not exceed 15 pages in length. The Record shall consist of, and be limited
to, the record of the proceedings before the Board of Supervisors with respect to the adjustment of the Contract Rate,
including but not limited to the County Report and the City Report prepared by each or any of the Challenging
Cities pursuant to Section 4.2(1), any materials filed or lodged with the Board of Supervisors and the Orange County
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Waste Commission, the transcript of the proceedings of the Board of Supervisors meeting and the Orange County
Waste Commission, the minutes of the Board of Supervisors and the Orange County Waste Commission meeting,
and the resolution and/or other documentation evidencing action by the Board of Supervisors and the Orange
County Waste Commission to adjust the Contract Rate pursuant to Section 4,2(A) ar (13). The record shall also
include the most recent reports prepared pursuant to Sections 4.6 and 4.7. The Expedited Rate Determination shall
be decided solely on the evidence in the Record, and no extrinsic evidence shall be submitted to or considered by the
court.
(6) Within ten (10) days of service by the Challenging Cities of their opening brief
and the Record, the County shall file and personally serve upon the Challenging Cities the County's opposition
brief. The opposition brief shall not exceed 15 pages in length.
(7) Within five (5) days of service by the County upon the Challenging Cities of the
opposition brief, the Challenging Cities may file and personally serve upon the County a rebuttal brief, which shall
not exceed 10 pages in length.
(8) The trial of the Expedited Rate Determination shall be conducted as a hearing
which shall be conducted at the date set by the court in the ex parte hearing conducted pursuant to Section 4.2(3){4),
or such other date and time ordered by the court. If the court requests the parties to prepare supplemental briefs in
response to any question or issue raised by the court, the parties may do so.
(9) The standard of review for the Expedited Rate Determination shall be the
preponderance of the evidence based upon the Record. The burden of proof shall be borne by the Challenging
Cities, and the burden of proof shall be the same as with respect to a plaintiff in a damages action for breach of
contract. Both parties have participated in the drafting of this Agreement. Accordingly, nothing set forth in this
Agreement shall be interpreted or construed for or against either of the parties as a consequence of their participation
in the drafting of this Agreement.
(10) The court shall issue its written statement of decision and enter judgment within
thirty (30) days of the date of the hearing in the Expedited Rate Determination.
(11) If the court determines that any portion of the County's adjusted Contract Rate
which is the subject of the Expedited Rate Determination was improperly imposed, the County shall, within 30 days
of the date of the statement of decision, reimburse to the City the amount improperly imposed, together with interest
calculated at the highest percentage rate that does not constitute usury under California laws. Such reimbursement
may be made in the form of a reduction in the Contract Rate for a future period (not to exceed twelve months)
reasonably calculated to provide full reimbursement of the amounts described above.
(12) If for any reason the court does not sign the order contained in the Expedited
Rate Determination Stipulation, the City shall, within 30 days of the court's denial of such requested order, file with
the court and personally serve upon the County a motion for summary judgment and/or motion for judgment on the
pleadings, in accordance with Code of Civil Procedure Section 437(c) and 438. By executing this Agreement, the
parties hereby stipulate that, in the event that the Challenging Cities file such summary judgment motion andlor
motion for judgment on the pleadings, the Record shall be deemed to have been incorporated into the complaint and
answer filed by the Challenging Cities and the County, and no evidence outside of the Record is relevant or material
to the dispute raised in the Expedited Rate Determination. The briefing schedule and hearing on such motion for
summary judgment and/or motion for judgment on the pleadings shall be in accordance with Code of Civil
Procedure Section 437(c). The Challenging Cities and the County shall be bound by all of the requirements and
restrictions set forth in Section 4.2(l) that are not in conflict with this paragraph (12).
(13) In the event that the court both does not sign the order contained in the
Expedited Rate Determination Stipulation and either does not hear or does not issue a ruling on the merits on the
motion for summary judgment and/or judgment on the pleadings which is dispositive of the issues, claims and
causes of action in the complaint filed by the Challenging Cities, the Countyand the Challenging Cities shall, within
twenty days following the issuance of the Court's order or decision not to honor the parties' stipulation or not to
hear the parties' motion for summary judgment, make application to the Presiding Judge of the Orange County
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Superior Court for an expedited hearing or trial date. The Challenging Cities and the County shall be bound by all
of the requirements and restrictions set forth in Section 4.2(J) that are not in conflict with this paragraph (13). In this
regard, and without hmiting the foregoing, the only evidence to be presented at the hearing or trial shall be the
Record, no testimony shall be presented at the hearing or trial; and both the County and the Challenging Cities
waive all rights to a jury trial, to any reconsideration of the decision of the court, to a new trial after the court renders
a decision, and to any appeal or review of the decision of the court.
SECTION 4.3 RESPONSIBILITY FOR PAYMENT OF THE COhMRACT RATE.
(A) Payment by City. In the event and to the extent (1) the City uses municipal collection
forces directly for the haulage of Controllable Waste to the Disposal System or (2) the City uses non -municipal
Franchise Haulers for collection but nonetheless elects to pay the Contract Rate from City revenues, the City, as its
own Franchise Hauler, shall have direct responsibility for payment of the Contract Rate, and shall take all such
budgetary, appropriation and other action as may be necessary to provide for the timely payment of the Contract
Rate. Such action may include, depending upon the means authorized by the City to provide for such payment, the
levy and collection of general or special taxes, the imposition of benefit assessments, or the collection of user fees,
generator charges or other similar impositions for municipal solid waste disposal. The City shall use best efforts in
accordance with Applicable Law to levy and impose all such taxes, assessments, fees or charges, and will take all
steps, actions and proceedings for the enforcement, collection and payment of all such amounts which shall become
delinquent, to the full extent permitted by Applicable Law. To the extent provided in Section 7.5 hereof, the
obligation of the City for such Contract Rates shall be limited to amounts in the City's Solid Waste Enterprise Fund.
From the Commencement Date to the date of expiration or termination of this Agreement, the obligation to the City
to pay the Contract Rate, to the extent the City rather than Franchise Haulers is responsible directly for payment and
provided that the Service Covenant has been complied with, shall be absolute and unconditional and shall not be
subject to delay or diminution by reason of set-off, abatement, counterclaim, exisFence of a dispute or otherwise.
(B) Payment by Franchise Haulers. With respect to Controllable Waste delivered by
Franchise Haulers other than City municipal collection forces, the obligation to pay the Contract Rate shall rest with
such Franchise Haulers and not with the City and, unless the City has agreed with the County to be responsible for
Franchise Hauler payments, the City shall not be financially responsible for any delay or failure by such Franchise
Hauler to pay the Contract Rate or any portion thereof when due. In the event of any such failure, the County and
the City shall cooperate with each other and use their best efforts to obtain timely payment. Such efforts by the
County may include, as appropriate, requiring cash payments for disposal rights from such Franchise Hauler and
bringing a legal proceeding for payment and damages. Such efforts by the City may include, as appropriate, legal
proceedings to suspend, revoke or terminate the Franchise Hauler's franchise, permit or license rights.
(C) Disputes. If the City or the Franchise Hauler disputes any amount billed by the County in
any Billing Statement, the City or the Franchise Hauler shall nonetheless pay the billed amount and shall provide the
County with written objection within 30 days of the receipt of such Billing Statement indicating the amount that is
being disputed and providing all reasons then known to the City or the Franchise Hauler for any objection to or
disagreement with such amount. If the City or the Franchise Hauler and the County are not able to resolve such
dispute within 30 days afterthe City's or the Franchise Hauler's objection, either party may pursue appropriate legal
remedies.
SECTION 4.4 BILLING OF THE CONTRACT RATE. The County shall continue to bill Contract
Rates after the Commencement Date, in the same manner as it has customarily billed tipping fees. Subject to the
other provisions of this Agreement, the County shall have the right to modify or amend such manner of billing on
reasonable notice to affected parties,
SECTION 4.5 RESTRICTED RESERVES. For purposes of this Agreement, "Restricted Reserves"
means cash and other reserves of the Disposal System which are restricted to specific uses or are otherwise being
reserved by the County to meet its obligations hereunder throughout the term of the Agreement with respect to the
Disposal System pursuant to any Applicable Law, contract, adopted budget, budgetary policy of the County with
respect to the Disposal System, or other arrangement_ Such cash and other reserves are not required to be deposited
in separate accounts or funds in order to constitute "Restricted Reserves" hereunder, and may be commingled with
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Unrestricted Reserves or other funds of the County attributable to the Disposal System. "Restricted Reserves" shall
include, but not be limited to, the following:
(i) reserves for closure of components of the Disposal System to the extent required
by Applicable Law;
(ii) amounts reserved by the County for funding of post closure maintenance and
monitoring with respect to components of the Disposal System;
(iii) reserves established to protect the Disposal System against the adverse financial
impact of potential decreases in waste deliveries pursuant to Section 4.2(B);
(iv) amounts reserved to pay the costs of capital improvements with respect to the
Disposal System;
(v) amounts funded from revenues during the early years of the term of the
Agreement reserved to enable the County to provide disposal services for the Contract Rate during the later years of
the Agreement;
(vi) amounts temporarily held by the County prior to payment to the State or other
Governmental Bodies pursuant to Applicable Law (including any fees or charges payable to the State Integrated
Waste Management Board);
(vii) reserves required to meet bond covenants pursuant to financing agreements for
Disposal System assets to the extent such amounts must be legally separate and distinct from other reserves
identified in this Section;
(viii) security deposits from landfill deferred payment program users;
(ix) amounts held by the County in the Environmental Fund (provided, however, that
such amounts in the Environmental Fund will be made available and used by the County if required to pay costs
relating to environmental remediation or other related costs);
(x) AB939 surcharges;
(xi) amounts held by the County in the Corrective Action Fund held pursuant to
CCR Title 27 to demonstrate financial assurance to pay for potential groundwater contamination; and
(xii) an amount equal to three months of budgeted expenses for the Disposal System
for the current fiscal year, represmting working capital of the Disposal System.
SECTION 4.6 AUDITED FINANCIAL STATEMENTS. The County shall annually, on or before
January 1 each year, prepare or cause to be prepared and have on file for inspection an annual report for the
preceding Contract Year, accompanied by a certificate of an independent public accountant or of the County Auditor
and Controller as to the examination of the financial statements therein (describing such statements as fairly
presenting the information therein in conformity with generally accepted accounting principles) relating to the
Disposal System, the Disposal Services, and the fiscal activities of the County OC Waste Disposal Enterprise Fundy
and including statements in reasonable detail of the financial condition of the County OC Waste Disposal Enterprise
Fund as of the end of the Qmtract Year and revenue and expenses for the Contract Year.
SECTION 4.7 ANI AL_UPDAIE OF TEN-YEAR FINANCIAL PROJECTION. The County shall
annually, on or before May I of each year, prepare or cause to be prepared, an updated Ten -Year Financial
Projection for the Disposal System. Said Financial Projection shall include at least two full years of prior actual data
and ten years of future projections including the following elements:
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County Acceptable Waste, in tons;
2. Imported Acceptable Waste, in tons;
Revenues and expenditures;
4. Cash fund balances, including all monies in the County Solid Waste Enterprise
Fund, with specific delineation of monies in the Environmental Fund, Restricted Reserves, Unrestricted Reserves,
and all other funds of the System.
S. Projected liabilities for closure and post closure as well as reasonable reserves
for other environmental costs.
The purpose of the Ten -Year Financial Projection is to keep the City fully informed about the future financial
condition of the Disposal System. The County shall cause a copy of the Ten -Year Financial ,Projection to be
delivered to the City Manager of the City no later than May 1 of each year. Upon request, the County shall make
available to the Cities supporting information related to the ten-year financial projection
ARTICLE V
BREACH, ENFORCEMENT AND TERMINATION
SECTION 5.1 3B . The parties agree that in the event either party breaches any obligation under
this Agreement or any representation made by either party hereunder is untrue in any material respect, the other
party shall have the right to take any action at law or in equity (including actions for injunctive relief, mandamus 4nd
specific performance) it may have to enforce the payment of any amounts due or the performance of any obligations
to be performed hereunder. Neither party shall have the right to terminate this Agreement except as provided in
Section 5.2 and Section 5.3 hereof or as otherwise provided in this Agreement.
SECTION 5.2 CITY CONVENIENCE TERMINATION. The City shall have the right to terminate this
Agreement in its sole discretion, for its convenience and without cause at any time during the Term hereof upon
90 days' written notice to the County. If the City exercises its rights to terminate the Agreement pursuant to this
Section, the City shall pay the County a termination fee equal to the Contract Bate in effect at the time of such
termination (or any higher rate with respect to which the County has provided notice pursuant to Section 4.2)
multiplied by the number of tons of City Acceptable Waste delivered to the Disposal System during the preceding
twelve months (or, if the City had bew in breach of the Waste Disposal Covenant during such prior months, such
amount as would have been delivered if the City had complied with the Waste Disposal Covenant), multiplied by the
number of years remaining in the Tenn of the Agreement.
SECTION 5.3 TERONATION.
(A) By City. Except as expressly provided herein, the City shall have no right to terminate
this Agreement for cause except in the event of the repeated failure or refusal by the County substantially to perform
any material obligation under this Agreement unless such failure or refusal is excused by an Uncontrollable
Circumstance; except that no such failure or refusal shall give the City the right to terminate this Agreement for
cause under this subsection unless:
(1) Tha City has given prior written notice to the County stating that a specified
failure or refusal to perform exists which will, unless corrected, constitute a material breach of this Agreement on
the past of the County and which will, in its opinion, give the City the right to terminate this Agreement for cause
under this subsection unless such breach is corrected within a reasonable period of time, and
(2) The County has neither challenged in an appropriate forum (in accordance with
Section 5.5) the City's conclusion that such failure or refusal to periform has occurred or constitutes a material
breach of this Agreement nor corrected or diligently taken steps to correct such breach within a reasonable period of
time not more than 90 days from the date of the notice given pursuant to clause (1) of this subsection (but if the
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County shall have diligently taken steps to correct such breach within such reasonable period of time, the same shall
not constitute a breach giving rise to the right of termination for as long as the County is continuing to take such
steps to correct such breach).
(13) By Co Except as expressly provided herein, the County shall have no right to
terminate this Agreement for cause except in the event of the repeated failure or refusal by the City substantially to
perform any material obligation under this Agreement unless such failure or refusal is excused by an Uncontrollable
Circumstance; except that no such failure or refusal shall give the County the right to terminate this Agreement for
cause under this subsection unless:
(1) The County has given prior written notice to the City stating that a specified
failure or refusal to perform exists which will, unless corrected, constitute a material breach of this Agreement on
the pari of the City and which will, in its opinion, give the County right to terrninate this Agreement for cause under
this subsection unless such breach is corrected within a reasonable period of time, and
(2) The City has neither challenged in an appropriate forum (in accordance with
Section 5.5) the County's conclusion that such failure or refusal to perform has occurred or constitutes a material
breach of this Agreement nor corrected or diligently taken steps to correct such breach within a reasonable period of
time not more than 90 days from the date of the notice given pursuant to clause (1) of this subsection (but if the City
shall have diligently taken steps to correct such breach within such reasonable period of time, the same shall not
constitute a breach giving rise to the right of termination for as long as the City is continuing to take such steps to
correct such breach).
SECTION 5.4 NO WADVEIRS. No action of the County or the City pursuant to this Agreement
(including, but not limited to, any investigation or payment), and no failure to act, shall constitute a waiver by either
party of the other party's compliance with any term or provision of this Agreement. No course of dealing or delay
by the County or the City in exercising any right, power or remedy under this Agreement shall operate as a waiver
thereof or otherwise prejudice such party's rights, powers and remedies. No single or partial exercise of (or failure
to exercise) any right, power or remedy of the County or the City under this Agreement shall preclude any other or
fiuther exercise thereof of the exercise of any other right, power or remedy.
SECTION 5.5 FORUM FOR 121SPUTE REQ . It is the express intention of the parties that all
legal actions and proceedings related to this Agreement or to the Disposal System or to any rights or any relationship
between the parties arising therefrom shall be solely and exclusively initiated and maintained in courts of the State
of California having appropriate jurisdiction.
ARTICLE VI
TERM
SECTION 6.1 EFFECTIVE DATE AND TERM.
(A) Initial Term. This Agreement shall become effective, shall be in full force and effect and
shall be legally binding upon the City and the County from the Contract Date and shall continue in full force and
effecf until June 30, 2020, unless earlier terminated in accordance with its terms, in which event the Term shall be
deemed to have expired as of the date of such termination.
(B) , Qpti l-tto Renew. This Agreement shall be subject to renewal by mutual agreement of
the parties, on or before June 30, 2018, for an additional term of tea years (the "Renewal Term') on the same terms
and conditions as are applicable during the Initial Tenn hereof. The City shall give the County written notice of its
irrevocable election to renew this Agreement on or before June 30, 2017. If the parties do not renew this Agreement
by June 30, 2018, the Agreement shall expire on June 30, 2020.
(C) - ontr t Rate DWj4g Renewal Term. In connection with the parties' right to renew this
Agreement for an additional ten-year term pursuant to Section 6.1(B), the parties shall, on or before June 30, 2018,
negotiate an applicable change in the Contract Rate for such renewal term. In determining any revisions to the
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Contract Rate to be applicable during any renewal period, in addition to the circumstances described in
Section 4.2(A), the parties may take into consideration the following parameters, including but not limited to:
(i) actual cost of operations;
(ii) population growth;
(iii) increase or decrease in available tonnage;
(iv) economic and disposal market conditions in the Southern California region;
(v) changes in transportation and technology;
(vi) closure and expansion of nearby landfills;
(vii) capacity of the Disposal System; and
(viii) available reserves which are in excess of the amount reasonably required as
reserves.
(D) Survival: Accrued Fights. The rights and obligations of the parties hereto pursuant to
Sections M(Rx2), 5.1, 5.3, 5.5, 7.2, 7.3, 7.5, 7.7, 7.8, 7.9, and 7.10 hereof shall survive the termination or
expiration of this Agreement, and no such termination or expiration shall limit or otherwise affect the respective
rights and obligations of the parties hereto accrued prior to the date of such termination or expiration. At the end of
the Term of this Agreement, all other obligations of the parties shall terminate.
SECTION 6.2 COMIv1ENCEMENT DATE.
(A) Oblieations of the Parties Prior to the Commencement Date The parties acknowledge
that the Disposal Agreements may be executed and delivered on different dates and that, except as provided in this
subsection, neither the County nor the City shall be obligated to perform its obligations hereunder until the
participation threshold provided herein has been met and the other conditions to the occurrence of the
Commencement Date have occurred. Prior to the Commencement Date, each party hereto shall at its own expense
exercise good faith and due diligence and take all steps within its reasonable control in seeking to satisfy the
conditions to the Commencement Date set forth herein as soon as reasonably practicable. The County and the City,
each at its own expense, shall cooperate fully with each other and the other Participating Cities in connection with
the foregoing mdeataking. Until the Commencement Date occurs, the Original WDAs shall remain in full force and
effect.
(B) Con it' n to the Commencernmt Date. The Commencement Date for the Agreement
shall be the date on which the percentage of the County's Acceptable Waste attributable to Participating Cities
which have executed and delivered Disposal Agreements shall exceed 85% percent (using the percentage rates
attributed to such Cities in Appendix 1). Unincorporated County is assumed to be a Participating City for the
purposes of determining the Commencement Date in accordance with this Section 6.2(b) and Appendix I of this
Agreement.
(C) Stisfactionipf Condition and Commencement Date. Upon the satisfaction or waiver of
the condition to the Commencement Date, the County shall give written notice thereof to the cities which have
theretofore executed Disposal Agreements. The parties shall thereupon hold a formal closing acknowledging the
satisfaction or waiver of the condition to the Commencement Date, certifying that the Commencement Date has
occurred and designating the Participating Cities. Copies of all of the documents or instruments constituting or
evidencing satisfaction of the Commencement Date conditions shall be famished to each party prior to or on the
Commencement Date.
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(D) Newly Incorporated Cities. Any city within Orange County which becomes incorporated
after the Commencement Date shall upon request be offered the opportunity by the County to become a
Participating City. If any such City executes a Disposal Agreement and rneets the applicable condition provided in
subsection 6.2(B) hereof within 180 days following the date of its municipal incorporation, then such City shall be
entitled to execute a Waste Disposal Agreement on substantially the same terms and conditions as this Agreement
(including the Contract Rate), notwithstanding the limitations contained in Section 3.6(B).
(E) Failure of Condition. If by i�r�' ' ` 120 DAYS AFTER BOARD APPROVAL), or
such later date as the County may agree, the condition to tHe Commencement Date specified in this Section is not
satisfied, either party hereto may, by notice in writing to the other party, terminate this Agreement. Neither party
shall be liable to the other for the termination of this Agreement pursuant to this subsection, and each of the parties
shall bear its respective costs and expenses incurred in seeking to satisfy the condition to the Commencement Date_
Notwithstanding anything in this Agreement to the contrary, in the event that this Agreement is terminated pursuant
to this Section, the provisions of the Original WDA shall remain in full force and effect on the terms and conditions
set forth therein.
ARTICLE VII
GENERAL PROVISIONS
SECTION 7.1 OPERATIQX AND MARaENANCE OF THE DISPOSAL SYSTEM The County, at
its cost and expense through the County Solid Waste Enterprise Fund, shall at all times operate, or caused to be
operated, the Disposal System in accordance with Applicable Law and the operating rules and regulations of the
Department.
SECTION 7.2 UNCONTROLLABLE CIRCUMSTANCES GENERALLY.
(A) Performance Excused. Except as otherwise specifically provided in this Agreement,
neither the County nor the City shall be liable to the other for any failure or delay in the performance of any
obligation under this Agreement (other than any payment at the time due and owing) to the extent such failure or
delay is due to the occurrence of an Uncontrollable Circumstance.
(B) Notice. Mitigation. The party experiencing an Uncontrollable Circumstance shall notify
the other party by telecommunication or telephone and in writing, on or promptly after the date the party
experiencing such Uncontrollable Circumstance fust knew of the commencement thereof, followed within 15 days
by a written description of (1) the Uncontrollable Circumstance and the cause thereof (to the extent known), (2) the
date the Uncontrollable Circumstance began and the cause thereof, its estimated duration, the estimated time during
which the performance of such party's obligations hereunder will be delayed, (3) the estimated amount, if any, by
which the Contract Rate may need to be adjusted as a result of such Uncontrollable Circumstance, (4) its estimated
impact on the other obligations of such party under this Agreement and (5) potential mitigating actions which might
be taken by the County or City and any areas where costs might be reduced and the approximate amount of such
cost reductions. Each party shall provide prompt written notice of the cessation of such Uncontrollable
Circumstance. Whenever such act, event or condition shall occur, the party claiming to be adversely affected
thereby shall, as promptly as reasonably possible, use its best efforts to eliminate the cause therefor, reduce costs and
resume performance under this Agreement. In addition, with respect to Changes in Law, the County shall diligently
contest any such changes the imposition of which would have a material adverse 'impact on the Disposal System.
While the delay continues, Bre County or City shall give notice to the other party, before the first day of each
succeeding month, updating the information previously submitted.
(C) lmaact on Contract Rate. If and to the extent that Uncontrollable Circumstances interfere
with, delay or increase the cost to the County of meeting its obligations hereunder and providing Disposal Services
to the Participating Cities in accordance herewith, the County shall be entitled to an increase in the Contract Rate as
provided in Section 4.2 herein or an extension in the schedule for performance equal to the amount of the increased
cost or the time lost as a result thereof. The proceeds of any insurance available to meet any such increased cost
shall be applied to such purpose prior to any determination of cost increases payable under this subsection. Any cost
reductions achieved through the mitigating measures undertaken by the County pursuant to subsection 7.2(B) hereof
upon the occurrence of an Uncontrollable Circumstance shall be reflected in a reduction of the amount by which the
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Contract Rate would have otherwise been increased or shall serve to reduce the Contract Kate to reflect such
mitigation measures, as applicable.
SECTION 7.3 RMEMNIFICtTION. To the extent permitted by law, the County agrees that, it will
protect, indemnify, defend and hold harmless the City from and against all Loss -and -Expense arising from the City's
activity as an "arranger" (for purposes of and as such term is defined under CERCLA or comparable state statutes)
of municipal solid waste disposal pursuant to this Agreement. In the event the City shall determine that because of
conflict or any other reason that it wishes to be defended by legal counsel other than the legal counsel provided by
the County, the cost of providing such legal counsel shall be the City's sole responsibility. The City acknowledges
the County's legitimate interest in actively participating in any defense, litigation or settlement whether the County
or the City provides legal counsel. Any costs incurred by the County pursuant to this Section shall be considered an
Uncontrollable Circumstance cost and the County shall be entitled to adjust the Contract Rate as provided in
subsection 4,2(A) herein. The County shall not, however, be required to indemnify or defend the City from and
against A Loss -and -Expense arising from any willful, knowing, illegal or negligent disposal of hazardous waste
(other than incidental amounts of Household Hazardous Waste commonly found in municipal solid waste and
permitted to be disposed in Class III landfills under RCRAI which violates the County's landfill permits or
Applicable Law. The parties agree that this provision constitutes an indemnity under CERCLA (to the extent of the
specific provisions of this Section). The parties acknowledge that this subsection is not intended to and does not
create any obligation on the part of the County to provide any indemnification or defense to any Franchise Hauler,
whether franchised or not, or any Independent Hauler or Transfer Station, under any circumstances. Ile City
acknowledges the County's legitimate interest in actively participating in any defense, litigation or settlement, and
shall, as a condition to this indemnity, coordinate fully with the County in the defense.
SECTION 7.4 RELATIONSHIP OF THE PARTIES. Neither party to this Agreement shall have any
responsibility whatsoever with respect to services provided or contractual obligations or liabilities assumed by the
other party bereto, whether accrued, absolute, contingent or otherwise, or whether due or to become due. The
County is an independent contractor of the City and nothing in this Agreement shall be deemed to constitute either
party a partner, agent or legal representative of the Other party or to create any fiduciary relationship between the
parties.
SECTION TS I ITED OURSE.
(A). To t ie City. Except in the event the City has not established or maintained a City Solid
Waste Enterprise Fund, no recourse shall be had to the general funds or general credit of the City for the payment of
any amount due the County hereunder, or the performance of any obligation incurred hereunder, including any Loss -
and -Expense of any nature arising from the performance or non-performance of the City's obligations hereunder.
The sole recourse of the County for all such amounts shall be to the funds held in any such Solid Waste Enterprise
Fund All amounts held in any City Solid Waste Enterprise Fund shall be held for the uses permitted and required
thereby, and no such amounts shall constitute property of the County. The City shall make adequate provision in the
administration of any City Solid Waste Enterprise Fund for the payment of any amount or the performance of any
obligation which may be due hereunder.
(B) To the County. No recourse shall be had to the general funds or general credit of the
County for the payment of any amount due the City hereunder, or the performance of any obligation incurred
hereunder, including any Loss -and -Expense of any nature arising from the performance or non-performance of the
County's obligations hereunder. The sole recourse of the City for all such amounts shall be to the finds held in the
County Solid Waste Enterprise Fund in accordance with the terms of this Agreement. All amounts held in the
County Solid Waste Enterprise Fund shall be held for the uses permitted and required thereby, and no such amounts
shall constitute property of the City. The County shall make adequate provision in the administration of the County
Solid Waste Enterprise Fund for the payment of any amount or the performance of any obligation which may be due
hereunder.
SECTION 7.6 PRE-EXISTING KUM AND LIABILITIES. Nothing in this Agreement is intended
to affect, release, waive or modify any rights, obligations or liabilities which any party hereto may have to or against
the other party as of the Contract Date relating to the disposal of waste in the Disposal System or any other related
matter.
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SECTION 7.7 NO VESTED RIGHTS. The City shall not acquire any vested property, license or other
rights in the Disposal System by reason of this Agreement.
SECTION 7.8 LIABILITY FOR COLLECTION. TRANSPORTATION_AND PROCESSING. Any
liability incurred by the City as a result of collecting Acceptable Waste or processing it for diversion from landfill,
or as a result of causing, franchising, permitting, licensing, authorizing or arranging any of the foregoing, shall be its
sole liability, except as expressly otherwise provided herein.
SECTION 7.9 NO CONSEQUENTIAL OR PUNITfVE DAMAGES. In no event shall either party
hereto be liable to the other or obligated in any manner to pay to the other any special, incidental, consequential,
punitive or similar damages based upon claims arising out of or in connection with the performance or non-
performance of its obligations or otherwise under this Agreement, or the material inaccuracy of any representation
made in this Agreement, whether such claims are based upon contract, tort, negligence, warranty or other legal
theory.
SECTION 7.10 AMENDMENTS. Neither this Agreement nor any provision hereof may be changed,
modifier], amended or waived except by written agreement duly authorized and executed by both parties.
SECTION 7.11 NOTICE OF LITIGATION. Each party shall deliver written notice to the other of any
Legal Proceeding to which it is a party and which questions the validity or enforceability of this Agreement
executed by the City or the County or any Legal Entitlement issued in connection herewith.
SECTION 7.12 FURTHER ASSMANCES. At any and all times the City and the County so far as may
be authorized by law shall pass, make, do, execute, acknowledge and deliver any and every such further resolutions,
acts, deeds, conveyances, instruments, assignments, transfers and assurances as may be necessary or reasonably
requested by the other in order to give full effect to this Agreement.
SECTION 7.13 _ASSIGNhfENT OF_AGREEMENT. (A) Assignment. Neither this Agreement nor any of
the rights or obligations hereunder may be assigned by either party hereto without the prior written consent of the
other party, which may be withheld in the other party's sole discretion. Notwithstanding the foregoing; either party
may assign this Agreement to another public entity, subject to the reasonable consent of the other party. In such
circumstances the party not requesting the assignment shall have the right to demand assurances of the financial,
technical and legal ability of the proposed assignee to undertake the responsibilities and obligations of the assigning
party
(B) Sale. The County shall not enter into any agreement for the sale of the Disposal System which provides
for an effective date for such sale prior to the termination of this Agreement.
SECTION 7.14 RFMREST ON OVERDUE OBLIGATIONS. Except as otherwise provided herein, all
amounts due hereunder, whether as damages, credits, revenue or reimbursements, that are not paid when Clue shall
bear interest at the Overdue Rate on the amount outstanding from time to time, on the basis of a 365 -day year,
counting the actual number of days elapsed, and all such interest accrued at any time shall, to the extent permitted by
Applicable Law, be deemed added to the amount due, as accrued.
SECTION 7.15 BINDING EFFEGI. This Agreement shall bind and inure to the benefit of the parties
hereto and any successor or assignee acquiring an interest hereunder consistent with the provisions of Section 7.13
bereof.
SECTION 7.16 NOTICES. Any notice or communication required or permitted hereunder shall be in
writing and sufficiently given if delivered in person or sent by certified or registered mail, postage prepaid, to the
notice address of the respective parties set forth on the cover page of this Agreement. Changes in the respective
addresses to which such notices may be directed may be made from time to time by any party by notice to the other
ply.
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IN WITNESS WHEREOF, COUNTY and CITY have caused this Agreement to be executed by their duly
authorized officers or representatives as of the day and year first above written.
Date l
Date
Date
APPROVED AS TO FORM:
COUNTY COUNSEL
Execution Copy
CO F ORANGE
By
Director, OC sate & RccycTift
By
City Representative
City of Newport Beach
By
[NAME]
City Representative
City of Newport Beach
29
APPROVED AS TO FORM:
� .' C
City Attorney
ATTEST:
City Clerk
City of N— ort gear~h
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APPENDIX l
PERCENTAGE OF COUNTY ACCEPTABLE WASTE ATTRIBUTABLE TO PARTICIPATING CITIES FOR
PURPOSE OF SECTION 6.2(b)
Jurisdiction
Percentage of County
Acceptable Waste
Anaheim
13.4%
Santa Ana
10.6%
Irvine
7.5%
Huntington Beach
6.0%
OqLnae
' 5.8%
Garden Grove
5.1%
Fullerton
4.5%
Uninco orated, Orange County tli
4.3%
Costa Mesa
3.6%
N art Beach
3.0%
Lake Forest
2.6%
Buena Park
2.5%
Mission Vicio
2.3%
Westminster
2.3%
Yorba Linda
2.3%
Brea
2.1%
Tustin
2.0%
Cypress
f•9%
La Habra
1.9%
San Clemente
1.7%
Fountain Vall
1.6%
LagunaNiguel
1.60/c,
Placentia
1.6%
San Juan Ca istranio
1.6%
Laguna Beach
1.4%
Dana Point
1.2%
Stanton
1.1%
Rancho Santa Margarita
1.0%
La Hills
0.9%
Seal Bea&
0.8%
Aliso Vie'o
0.7%
Us Alamitos
0.5%
La Palma
0.3%
LagunaWoods
0.2%
Villa Park
0.2°/
Total
100%
(1) Unincorporated County is assumed to be a Participating City for the purposes of determining
the Commencement Date in accordance with Section 6.2(b) of this Agreement.
(2) A Participating City will only be included for purposing of determining the Com=neement
Date upon (i) execution of a Waste Disposal Agreement by that Participating City and (ii)
execution of a Hauler Acknowledgement(s) by the Franchise Hauler(s) operating with& such
Participating City
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APPENDIX 2
CUMULATIVE TONNAGE TARGETS
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APPENDIX 2
Cumulative County Acceptable Waste Tonnage Target to be Used
for Purposes of Section 4.2 (B)
Fiscal Year
County Acceptable Waste
Tonnage
FY 2008-09
3,170,387
FY 2009-I0
3,092,806
FY 2010-11
3,185,590
FY 2011-12
3,344,870
FY 20I2-13
3,445,216
FY 2013-14
3,514,120
FY 2014-15
3,549,262
FY 2015-16
3,565,608
FY 2016-17
3,582,033
FY 2017-18
3,598,535
FY 2018-19
3,615,115
FY 2019-20
3,631,774
Execution Copy
Cumulative County
Acceptable Waste Tonnage
3,170,387
6,263,193
9,448,783
12,793,653
16,238,869
19,752,989
23,302,251
26,867,859
30,449,892
34,048,427
37,663,542
41,295,316
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APPENDIX 3
CUMULATIVE CAPITAL COSTS
to be Used
for Purposes of Section 4.2(A)vi
Fiscal Year
(ezding June 30
Annual Capital Costs
Cumulative Capital Costs
2009
$37,939,538
$37,939,538
2010
$59,343,405
$9_7,282,943
2011
$10,433,978
$1073716,921
2012
$13,678,113
$121,395,034
2013
$11525,040
$139,920,074
2014
$11,259,518
$150,179,592
2015
$37,682,758
$187,862,350
2016
$5,068,800
S 192,931150
2017
$10,662,265
$203,593,415
2018
$29,397,69
$232,991,113
2019
'241,254,908
2020
$45 103805
$286,358,713
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E
APPENDIX 4
FORM OF HAULER ACKNOWLEDGMENT
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FRANCHISE HAULER ACKNOWLEDGMENT
THIS FRANCHISE HAULER ACKNOWLEDGMENT, dated as of� 2009 (the
"Acknowledgment"), by and between the City of (the "City") and (the "Franchise
Hauler").
WITNESSETH
[WHEREAS, the City and the Franchise Hauler have heretofore entered into an agreement entitled
, dated as of (the "Franchise"); and[
[WHEREAS, the City has issued to the Franchise Hauler a permit, license, approval or other authorization
the "Authorization") which allows the Franchise Hauler to provide solid waste collection services within the City;
and]]
[WHEREAS, the Franchise [SUBSTITUTE "AUTHORIZATION" THROUGHOUT IF' APPLICABLE]]
provides for the collection and disposal of certain municipal solid waste as described therein ("Franchise Waste")
generated within the City; and]
WHEREAS, Orange County (the "County") owns, manages and operates a sanitary landfill disposal system
for municipal solid waste generated within the County; and
WHEREAS, the City and the County have heretofore entered into a Waste Disposal Agreement, dated as of
, 2009 (the "Disposal Agreement') determining that the execution of such Disposal Agreement will
serve the public health, safety and welfare of the residents of the City and County, by maintaining public ownership
and stewardship over the Orange County Landfill Disposal System (the "Disposal System"); and
WHEREAS, under the Disposal Agreement, the County has agreed to provide long-term disposal of all
municipal solid waste generated within the City and the City has agreed to exercise all legal, and contractual power
which it possesses from time to time to deliver or cause the delivery of such waste to the Disposal System; and
WHEREAS, the provisions of the Waste Disposal Agreement which guarantee capacity for the long term
disposal of waste at specified rates generated in the City provide significant benefits to the Franchise Hauler;
WHEREAS, notwithstanding any Franchise provisions to the contrary, the Franchise Hauler explicitly
acknowledges the aforementioned benefits to the City, the County and the Franchise Hauler in providing for the
disposal of all Franchise Waste, to the Disposal System; and
WHEREAS, the City and the Franchise Hauler desire to eater into this Acknowledgment to assure that the
City and the Franchise Hauler will be entitled to the benefits of the Waste Disposal Agreement and to assure
conformity with the waste delivery obligations which have been agreed to by the City under the Disposal Ageement
through the delivery of waste by the Franchise Hauler to the Disposal System; and
WHEREAS, the Franchise Hauler's agreement to deliver Franchise Waste to the Disposal System under
this Acknowledgment is given in consideration of the Franchise Hauler's right to receive the Contract Rate for such
disposal as provided in the Disposal Agreement.
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound hereby,
agree as follows:
I. Capitalized terms used and not otherwise defined herein are used as defined iii the Disposal
Agreement.
�," 7 Wution Copy
20-298
I The Franchise Hauler hereby waives any right which it may possess under applicable law to
contest on any ground, constitutional, statutory, case law, administrative or otherwise, (a) the right, power or
authority of the County or the City to enter into or perform their respective obligations under the Disposal
Agreement, (b) the enforceability against the County or the City of the Disposal Agreement, or (c) the right, power
or authority of the City to deliver or cause the delivery of all Controllable Waste to the Designated Disposal Facility
in accordance with this Acknowledgment.
3. The City and the Franchise Hauler each hereby represent that this Acknowledgment has been duly
authorized by all necessary action of their respective governing bodies.
4. The Franchise Hauler shall deliver or cause to be delivered all Controllable Waste (including all
residue from the processing by any means, wherever conducted, of Controllable Waste), to the Disposal System, and
shall otherwise assist the City in complying with its obligations under the Waste Disposal Covenant in Section 3.1 of
the Disposal Agreement,
5. The Franchise Hauler shall not haul Controllable Waste to any materials recovery facility,
composting facility, intermediate processing facility, recycling center, transfer station or other waste handling or
management facility unless the contract or other agreement or arrangement between the Franchise Hauler and the
operator of such facility is sufficient in the opinion of the County to assure that the Residue from such facility
constituting City Acceptable Waste (or Tonnage equivalencies) and the City Acceptable Waste transferred by such
facility shall be delivered to the Designated Disposal Facility in compliance with the Wasie Disposal Covenant.
6. The Franchise Hauler shall pay the Contract Rate imposed by the County at the Designated
Disposal Facility for the disposal of all Controllable Waste, which rate shall be subject to potential adjustment
necessary to reflect the circumstances set forth in the Disposal Agreement.
7_ Nothing in this Acknowledgment is intended to restrict any right or responsibility explicitly given
the Franchise Hauler in the Franchise to recycle City Acceptable Waste, except as provided in paragraph 5 above
with respect to Residue from any such recycling operations.
. 8. The obligations of the Franchise Hauler under this Acknowledgment shall apply notwithstanding
any provision of the Franchise which may conflict herewith.
9. This Acknowledgment may be enforced by the City by any available legal means. In any
enforcement action by the City, the burden of proof shall be on the Franchise Hauler to demonstrate compliance
herewith.
10. This Acknowledgment shall be in full force and effect and shall be legally binding upon the City
and Franchise Hauler from the dated hereof and shall continue in full force and effect until the earlier of (i) the and
of the term of the Franchise or (6) the end of the term of the Disposal. Agreement.
11. The City and Hauler agree that the County shall be an express third party beneficiary of this
Acknowledgment, and shall be entitled to independently enforce the obligations of the Franchise Hauler hereunder.
12. The Hauler agrees to assist the County in verifying tonnage collected by the Franchise Hauler and
providing information required by the County. Hauler will provide upon request refuse tonnage collected within the
County, and outside the County (if relevant to confirming tonnage origination), separated by jurisdiction, by load
type (residential, commercial, roll -off box), and by facility to which it was delivered (specify which landfill or
transfer station). Hauler will provide customer service levels and route lists. Hauler will cooperate with County
audits to verify reported origin of tonnage by malting records and personnel available to the County and/or its
auditors.
E[em ioz COPY
20-299
TN WITNESS WHEREOF, the parties have caused this Acknowledgment to be executed by their duly
authorized officers or representatives as of day of , 2009,
CITY OF
Signature:
Printed Name:
Tide:
(Franchise Hauler)
Signature:
Printed Name:
Title:
t xeoxioa UPY
20-300
May 4, 2009
� CITY OF NEWART BEACH
Mr. Jeff Southern
Orange County Waste & Recycling
300 N. Flower Street, Suite 400
Sar►ta Ana, CA 92703
Dear Mr. Southern:
OFFICE OF THE CITY CLERK
I..eilanl I. Brown, MMC
Certified No. 7009 0080 0000 7494 7627
Return Receipt Requested
Enclosed please find the certified minutes excerpt from the April 28, 2009 Newport
Beach City Council Meeting, one original contract, and three original signature
pages for Contract No. 4194 between the City of Newport Beach and the County of
Orange. Please have the three original signature pages signed where indicated.
Once executed, please return one fully executed contract to:
Leilani I. Brown, City Clerk
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92663
If you have any questions or need additional information, please contact General
Services Director Mark Harmon.
Sincerely,
4��
Leilani I. Brown, MMC
City Clerk
Enclosures
cc: Mark Harmon, General Services Director
3300 Newport Boulevard • Post Office Box 1768 • Newport Beach, California 92658-8915
Telephone: (949} 644-3005 • Fax: (949) 644-3039 • www.city.newport-beach.ca.us
20-301
CITY OF NEWPORT BEACH MINUTE EXCERPT
` CITY COUNCIL MEETING OF APRIL 28, 2009
ROLL CALL
Present: Henn, Rosansky, Curry, Webb, Gardner, Mayor Selich
Absent: Daigle (excused)
CURRENT BUSINESS
19. APPROVAL OF TEN YEAR AGREEMENT WITH THE COUNTY OF
ORANGE FOR THE DISPOSAL OF MUNICIPAL SOLID WASTE (C-4194).
Motion by Council Member Webb to approve the ten year agreement with the
County of Orange (July 1, 2010 through June 30, 2020) for the delivery of all
controllable municipal solid wastes from the City to the County landfill disposal
system, thereby ensuring a long-term, reliable and cost competitive disposal source
for the City's municipal solid waste,
The motion carried by the following roll call vote:
Ayes: Council Member Henn, Council Member Rosansky, Mayor Pro Tem Curry,
Mayor Selich, Council Member Webb, Council Member Gardner
Noes: None
Abstain: None
Absent: Council Member Daigle
CERTIFIED AS A TRUE AND CORRECT COPY
City Clerk of the City of
DATE- 5 4QR
Beach
� 6RNty
20-302
GAI
Michael & Glancolo. ii
O R A N G E G O V N T T 300 N. Flower Street, Suite 400
(.0
Waste&RecyclffigEIVED Santa Ana, CA 92703
www.oclandfills.com
Our Community. our Commitment. • Telephone: (714) 834-400D
N9 A 29 P 1:44 Fax: (714) 834-4183
July 23, 2009
Mr. Homer Bludau, City Manager
City of Newport Beach
3300 Newport Blvd.
Newport Beach, CA 92663
Subject: Waste Disposal Agreement
Dear Mr. Bludau,
I am pleased to inform you that the required conditions of the Waste Disposal Agreement
(Agreement) have been met and we are prepared to formally enter into this partnership with
your jurisdiction. As you are aware Section 8.2 of the Agreement states that the
commencement date shall occur when cities representing 85% of the waste generated in the
County approve and execute the Agreement. This threshold was required to be met within 120
days following Orange County Board of Supervisors approval of the Agreement, which occurred
March 24, 2009.
This letter serves as written notification that this condition of the Agreement has been satisfied
and the commencement date of the Agreement is July 23, 2009. For your reference, please
find attached an executed Commencement Date Certificate signifying that the commencement
date has occurred and a listing of all the participants.
I'd like to take this opportunity to thank you for your timely consideration and action with regard
to this Agreement. Landfill capacity is a valuable resource to Orange County residents.
Through implementation of this Agreement we can best manage that capacity for future
generations while at the same time controlling the expense for current residents. I look forward
to our continued partnership for years to come.
If you have any questions, please contact me directly at (714) 834-4122 or Jeff Southern of my
staff at (714) 834-2652.
Sincerely,
Michael B. Gianc a
cc:
Board of Supervisors
CEO
Attachment
20-303
0
o R .> N 6 E C O U N T Y
CWas te&,Recycling
Our Community. Our Commitment.
Michael & Gloncola, Director
300 N. Flower Street. Suite 400
Santa Ana. CA 92703
1N_W_W—oChnd5IISSS2M
Telephone: (714) 834.4000
Fax: (714) 834-4183
CERTIFICATE OF THE COUNTY OF ORANGE, CALIFORNIA
CERTLFYING SATISFACTION OF CONDITION
TO COMMENCEMENT DATE
RELATING TO WASTE DISPOSAL AGREEMENT
July 23, 2049
I, Michael B. Giancola, Director, OC Waste & Recycling, County of Orange, California,
hereby certify as follows:
1. On March 24, 2009, by Resolution No. 09-036, the County Board of Supervisors
approved the forms of Waste Disposal Agreements and designated July 23, 2009, as the date by
which all conditions to the Commencement Date (as defined in the Waste Disposal Agreements)
were to be met.
2. On July 23, 2009, OC Waste & Recycling received executed Waste Disposal Agreements
from Participating Cities exceeding eighty-five percent (85%) of County Acceptable Waste using
the percentage rates attributable to such Participating Cities in Appendix 1 of the Waste Disposal
Agreement.
3. [n accordance with Section 6.2 of the Waste Disposal Agreements, the condition
precedent to the Commencement Date has been met and the County designates July 23, 2009, as
the Commencement Date for the attached list of Participating Cities.
4. Copies of all documents constituting evidence of satisfaction of the condition to the
Commencement Date are available for inspection and copying at OC Waste & Recycling, 300 N.
Flower St., Suite 400, Santa Ana, CA 92703, (714) 834-4000,
I hereby certify the foregoing is true and correct,
Michael B. Giancola, Director, OC Waste & Recycling
20-304
20-305
PARTICIPATING CITIES, SANITATION DISTRICTS, AND FACILITY OPERATORS
Cities:
Rancho Santa Margarita
Aliso Viejo
San Clemente
Anaheim
San Juan Capistrano
Brea
Santa Ana
Buena Park
Seal Beach
Costa Mesa
Stanton
Cypress
Tustin
Dana Point
Villa Park
Fountain Valley
Westminster (by way of Midway Sanitation)
Fullerton
Yorba Linda
Garden Grove (by way of Garden Grove
Sanitation Districts:
Sanitation)
Costa Mesa Sanitation
Huntington Beach
Garden Grove Sanitation
Irvine
Midway Sanitation
La Habra
South Orange County Wastewater Authority
La Palma
(SOCWA)
Laguna Beach
Facility Operators:
Laguna Hills
CR&R Incorporated
Laguna Niguel
Rainbow Disposal
Laguna Woods
Tierra Verde Industries
Lake Forest
Madison Materials (dba Ware Disposal)
Los Alamitos
USA Waste/Waste Management of Orange
County
Mission Viejo
Newport Beach
Orange
Placentia
20-305
The agreement is attached, along with supplemental information intended to aid in preparation of
an item for your city council.
Should your city choose to execute the agreement, please return three wet signature copies to the
below address. The County will retain two copies and return one to the city. Please also include
a copy of the resolution, minute order or other documentation confirming that your City Council
has approved the agreement.
OC Waste & Recycling4— [
300 N. Flower Street, Suite 400
Santa Ana, CA 92703
Attention: Jeff Southern
OC Waste & Recycling stands ready to further assist you by providing additional information or
by making a presentation to your city council and/or staff. Please contact Rochelle Carpenter at
(714) 834-4060 or Jeff Southern at (714) 834-2652.
Sincerely,
r�-�
Michael B. Giancola, Director
Attachments:
Waste Disposal Agreement
Summary of Major Provisions
Board Resolution
Staff Report Information
I
I
20-306
0
0
CITY OF NEWPORT BEACH MINUTE EXCERPT
CITY COUNCIL MEETING OF APRIL 28, 2009
ROLL CALL
Present: Henn, Rosansky, Curry, Webb, Gardner, Mayor Selich
Absent: Daigle (excused)
CURRENT BUSINESS
19. APPROVAL OF TEN YEAR AGREEMENT WITH THE COUNTY OF
ORANGE FOR THE DISPOSAL OF MUNICIPAL SOLID WASTE (C-4194).
Motion by Council Member Webb to approve the ten year agreement with the
County of Orange (July 1, 2010 through June 30, 2020) for the delivery of all
controllable municipal solid wastes from the City to the County landfill disposal
system, thereby ensuring a long-term, reliable and cost competitive disposal source
for the City's municipal solid waste.
The motion carried by the following roll call vote:
Ayes: Council Member Henn, Council Member Rosansky, Mayor Pro Tem Curry,
Mayor Selich, Council, Member Webb, Council Member Gardner
Noes: None
Abstain: None
Absent: Council Member Daigle
CERTIFIED AS A TRUE AND CORRECT COPY
IN
City Clerk of the City of Newport Beach
DATE: 5/4/01
rj
20-307
WASTE DISPOSAL AGREEMENT
Between
THE COUNTY OF ORANGE, CALIFORNIA
and
the
CITY OF NEWPORT BEACH
Dated 4128 2009
County Authorization Date:
March 24. 2009
County Notice Address:
Director
OC Waste & Recycling
300 N. Flower Street, Suite 400
Santa Ana, CA 92703
Execution Copy
0
City Authorization Date -
April -28; 2009
City Notice Address:
General Services Director
3300 Newport: Boulevard
Newport Beach, CA 92663
20-308
0
TABLE OF CONTENTS
E
Page
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section1.1 DEFINITIONS..................................................................................................................................2
Section 1.2 INTERPRETATION.........................................................................................................................7
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1
REPRESENTATIONS AND WARRANTIES OF THE CITY........................................................8
Section 2.2
REPRESENTATIONS AND WARRANTIES OF THE COUNTY.................................................9
Section 4.3
ARTICLE III
DELIVERY AND ACCEPTANCE OF WASTE AND PROVISION OF DISPOSAL SERVICE
Section3.1
DELIVERY OF WASTE..................................................................................................................9
Section 3.2
PROVISION OF DISPOSAL SERVICES BY THE COUNTY.....................................................11
Section 3.3
COUNTY RIGHT TO REFUSE WASTE......................................................................................12
Section 3.4
UNINCORPORATED AREA ACCEPTABLE WASTE...............................................................13
Section 3.5
MISCELLANEOUS OPERATIONAL MATTERS.......................................................................14
Section 3.6
OTHER USERS OF THE DISPOSAL SYSTEM..........................................................................14
Section 3.7
COUNTY PROVISION OF WASTE DIVERSION SERVICES...................................................15
ARTICLE IV
CONTRACT RATE
Section 4.1
CHARGING AND SECURING PAYMENT OF CONTRACT RATE.........................................15
Section 4.2
CONTRACT RATE........................................................................................................................15
Section 4.3
RESPONSIBILITY FOR PAYMENT OF THE CONTRACT RATE...........................................21
Section 4.4
BILLING OF THE CONTRACT RATE........................................................................................21
Section 4.5
RESTRICTED RESERVES...... ..... .............. ............ ............ ....................................................... 21
Section 4.6
AUDITED FINANCIAL STATEMENTS......................................................................................22
Section 4.7
ANNUAL UPDATE OF TEN-YEAR FINANCIAL PROJECTION.............................................22
ARTICLE V
BREACH, ENFORCEMENT AND TERMINATION
Section5.1
BREACH........................................................................................................................................23
Section 5.2
CITY CONVENIENCE TERMINATION
23
Section 5.3
TERMINATION___ ...... ............. ---- ............. -- ........................................................
23
Section5.4
NO WAIVERS................................................................................................................................24
Section 5.5
FORUM FOR DISPUTE RESOLUTION......................................................................................24
ARTICLE
TERM
Section 6.1 EFFECTIVE DATE AND TERM. ..............
Section 6.2 COMMENCEMENT DATE ........................
a
Execution Copy
20-309
Section 7.1
Section 7.2
Section 7.3
Section 7.4
Section 7.5
Section 7.6
Section 7.7
Section 7.8
Section 7.9
Section 7.10
Section 7.11
Section 7.12
Section 7.13
Section 7.14
Section 7.15
Section 7.16
APPENDIX I
ARTICLE VTI
GENERAL PROVISIONS
OPERATION AND MAINTENANCE OF THE DISPOSAL SYSTEM.......................................26
UNCONTROLLABLE CIRCUMSTANCES GENERALLY........................................................26
INDEMNIFICATION.....................................................................................................................27
RELATIONSHIP OF THE PARTIES............................................................................................27
LIMITED RECOURSE. .................... .............................................................................................27
PRE-EXISTING RIGHTS AND LIABILITIES.............................................................................27
NOVESTED RIGHTS...................................................................................................................28
LIABILITY FOR COLLECTION, TRANSPORTATION AND PROCESSING ..........................28
NO CONSEQUENTIAL OR PUNITIVE DAMAGES..................................................................28
AMENDMENTS............................................................................................................................28
NOTICE OF LITIGATION............................................................................................................28
FURTHER ASSURANCES...........................................................................................................28
ASSIGNMENT OF AGREEMENT...............................................................................................28
INTEREST ON OVERDUE OBLIGATIONS...............................................................................28
BINDING EFFECT........................................................................................................................28
NOTICES........................................................................................................................................ 28
ESTIMATED ANNUAL TONNAGE
APPENDIX 2
CUMULATIVE TONNAGE TARGETS
APPENDIX 3
CUMULATIVE CAPITAL COSTS
APPENDIX 4
FORM OF HAULER ACKNOWLEDGEMENT
Execution Copy
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0 0
WASTE DISPOSAL AGREEMENT
THIS WASTE DISPOSAL AGREEMENT is made and dated as of the date indicated on the cover page
hereof between the County of Orange, a political subdivision of the State of California (the "County"), and the City
designated on the cover page of this Agreement, a general law or chatter city and political subdivision of the State of
California (the "City").
RECITALS
The County owns, manages and operates a sanitary landfill system for the disposal of municipal solid waste
generated by the cities and the unincorporated area within the County (the "Disposal System"). The Disposal
System includes three active landfills and four regional household hazardous waste collection centers.
The Disposal System is used for the disposal of municipal solid waste which is not reused, recycled or
otherwise diverted from landfill disposal, pursuant to the California Integrated Waste Management Act of 1989
(Division 30 of the California Public Resources Code) (the "Act"),
The City, in the exercise of its police power and its powers under the Act, has entered into a franchise or
other agreement with or issued permits or licenses to one or more private haulers for the collection and disposal of
municipal solid waste generated within the City.
A significant portion of municipal solid waste generated within the City historically has been and currently
is delivered by such hauler or haulers to the County for disposal in the Disposal System.
In 1997, the City and the County entered in a waste disposal agreement (the "Original WDA'), pursuant to
which the County agreed to provide disposal capacity for waste generated in the City, and the City agreed to deliver
or cause the delivery of waste generated in the City to the Disposal System, as more specifically set forth in, and
subject to the terms and conditions of, the Original WDA.
The Original WDA, as amended, will expire by its terms on June 30, 2010, unless the City and the County
agree to renew the Original WDA.
The City and the County desire to enter into this agreement to extend, amend and restate time Original
WDA, on the terms and conditions set forth herein. The County and City acknowledge that the Original WDA shall
remain in full force and effect until the Commencement Date.
The City has determined that the execution of this Agreement by the City will serve the public health,
safety and welfare of the City by providing greater disposal mate stability, more predictable and reliable long-term
disposal service, and the continuation of sound environmental management.
The County has determined that the execution by the County of this Agreement will serve the public health,
safety and welfare by providing a more stable, predictable and reliable supply of municipal solid waste and the
resulting service payment revenue to the Disposal System, thereby enabling the County to plan, manage, operate and
finance improvements to the Disposal System on a more prudent and sound long term, businesslike basis consistent
with its obligations to the State and the holders of obligations secured by its Disposal System.
Official action approving this Agreement and determining it to be in the public interest and authorizing its
execution and delivery was duly taken by the County on the County authorization date indicated on the cover page
hereof.
Official action approving this Agreement and determining it to be in the public interest and authorizing its
execution and delivery was duly taken by the City on the City authorization date indicated on the cover page hereof.
It is, therefore, agreed as follows:
Execution Copy
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ARTICLE I
DEFINITIONS AND INTERPRETATION
0
SECTION 1.1 DEFINITIONS. As used in this Agreement, the following terms shall have the meanings
set forth below.
"Acceptable Waste" means all garbage, refuse, rubbish and other materials and substances discarded or
rejected as being spent, useless, worthless or in excess to the owners at the time of such discard or rejection and
which are normally disposed of by or collected from residential (single family and multi -family), commercial,
industrial, governmental and institutional establishments and which are acceptable at Class III landfills under
Applicable Law.
"Act" means the California Integrated Waste Management Act of 1989 (Division 30 of the California
Public Resources Code), as amended, supplemented, superseded and replaced from time to time.
"Agreement" means this Waste Disposal Agreement between the County and the City as the same may be
amended or modified from time to time in accordance herewith.
"Appendix" means an appendix to this Agreement, as the same may be amended or modified from time to
time in accordance with the terms hereof
"Applicable Law" means the Act, the Orange County Code, CERCLA, RCRA, CEQA, any Legal
Entitlement and any federal or state rule, regulation, requirement, guideline, permit, action, determination or order of
any Governmental Body having jurisdiction, applicable from time to time to the siting, design, permitting,
acquisition, constriction, equipping, financing, ownership, possession, operation or maintenance of the Disposal
System, the transfer, handling, transportation and disposal of Acceptable Waste, Unacceptable Waste, or any other
transaction or matter contemplated hereby (including any of the foregoing which concent health, safety, fire,
environmental protection, mitigation monitoring plans and building codes).
"Board" means the California Integrated Waste Management Board.
"Capital Costs" means all costs of the Disposal System that are classified as capital costs for purposes of
the budget of the Department in accordance with procedures established by the County of Orange Auditor -
Controller in compliance with the California State Controller's Manual, including but not limited to all of the
categories of costs of the Disposal System reported as `Buildings and Improvements, and Infrastruchue" (Object
Code 4200) or "Equipment" (Object Code 4000) in the County of Orange — Chart of Accounts, or any successor
accounting or reporting systeiii utilized by the County.
"CEQA" means the California Environmental Quality Act, codified at Cal. Pub. Res. Code Section 21000
et seq. as amended or superseded, and the regulations promulgated thereunder.
"CERCLA" means the Comprehensive Environmental Response, Compensation and Liability Act,
42 U.S.C.A. Section 9601 et seq., as amended or superseded, and the regulations promulgated thereunder.
"Change in Law" means any of the following events or conditions which has a material and adverse effect
on the performance by the parties of their respective obligations under this Agreement (except for payment
obligations), or on the siting, design, permitting, acquisition, -construction, equipping, fmancing, ownership,
possession, operation or maintenance of the Disposal System or other matters to which Applicable Law applies:
(1) the enactment, adoption, promulgation, issuance, material modification or written change
in administrative or judicial interpretation on or after the Commencement Date of any Applicable Law (other than
Applicable Law enacted by the County);
(2) the order or judgment of any Govetnmentat Body (other than the County), on or after the
Commencement Date, to the extent such order or judgment is not the result of willful or negligent action, error or
Execution Copy
20-312
0 •
omission or lack of reasonable diligence of the County or of the City, whichever is asserting the occurrence of a
Change in Law; provided, however, that the contesting in good faith or the failure in good faith to contest any such
order or judgment shall not constitute or be construed as such a willful or negligent action, error or omission or lack
of reasonable diligence; or
(3) the denial of an application for, delay in the review, issuance or renewal of, or
suspension, termination, interruption, imposition of a new or more stringent condition in connection with the
issuance, renewal or failure of issuance or renewal on or after the Commencement Date of any Legal Entitlement to
the extent that such denial, delay, suspension, termination, interruption, imposition or failure materially and
adversely interferes with the performance of this Agreement, if and to the extent that such denial, delay, suspension,
termination, interntption, imposition or failure is not the result of willful or negligent action, error or omission or a
lack of reasonable diligence of the County or of the City, whichever is asserting the occurrence of a Change in Law;
provided, however that the contesting in good faith or the failure in good faith to contest any such denial, delay,
suspension, termination, interruption, imposition or failure shall not be construed as such a willful or negligent
action, error or omission or lack of reasonable diligence.
A "Change in Law" shall include but not be limited to any new or revised requirements relating to
the funding or provision of disposal services, including but not limited to any regulations for disposal operations or
activities associated with the remediation, closure, funding or monitoring of closed sites with respect to facilities
comprising the Disposal System, or facilities which the County previously utilized to provide waste disposal,
transfer, recycling, processing or other waste related activities.
"City" means, as applicable, the city or Sanitary District designated an the cover page of this Agreement
and party to ibis Agreement.
"City Acceptable Waste" means all Acceptable Waste which was originally discarded by the first generator
thereof within the geographical limits of the City, and Residue from the foregoing wherever produced, whether
within or outside the City (or Tonnage equivalencies of such Residues, as and to the extent provided in
subsection 3.1(C) hereof).
"Commencement Date" means the date on which the obligations of the parties hereto commence,
established as provided in Section 6.2(B) hereof.
"Contract Date" means the fust date on which this Agreement has been executed by both parties hereto.
"Contract Rate" bas the meaning specified in Section 4.2 hereof.
"Contract Year" means the fiscal year commencing on July I in any year and ending on June 30 of the
following year.
"Controllable Waste" means all City Acceptable Waste with respect to which the City has the legal or
contractual ability to determine the disposal location therefor and which is:
(1) Non -Recycled City Acceptable Waste;
(2) not generated from the operations of the Governmental Bodies which, under Applicable
Law, have the independent power to arrange for the disposal of the waste they generate; and
(3) collected and hauled by Franchise Haulers.
"County" means the County of Orange, a political subdivision of the State of California and party to this
Agreement.
"County Flan" means the integrated waste management plan of the County approved by the Board pursuant
to the Act as in effect from time to time.
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"County Acceptable Waste" means Acceptable Waste generated in the County.
"County OC Waste & Recycling Enterprise Fund" means the waste management enterprise fund
established and managed by the County pursuant to Section 25261 of the Goverment Code separate from its other
funds and accounts for receipts and disbursements in connection with the Disposal System.
"County -wide Recycling Services" has the meaning set forth in subsection 3.7(A) hereof.
"Cumulative Tonnage Target" for any given Contract Year means the amount specified in Appendix 2
hereto with respect to such Contract Year.
"Department" means OC Waste & Recycling, and any agency, department or other Governmental Body
which succeeds to the duties and powers thereof.
"Disposal Agreements" means each of the waste disposal agreements entered into between the County and
any city within the County, Sanitary District or operator of any Transfer Station located in the County in accordance
herewith.
"Disposal Services" means the solid waste disposal services to be provided by the County pursuant to the
Service Covenant and otherwise hereunder.
"Disposal System" means the Orange County Waste Disposal System which includes solid waste disposal
operations at three active landfills (Olinda Alpha, Frank R. Bowerman and Prima Deshecha); four regional
Household Hazardous Waste Collection Centers; as well as services, such as monitoring and other activities, at
closed refuse stations formerly operated by the County, as appropriate under Applicable Law.
"Environmental Fund" means the fund or funds held by the County to pay unanticipated costs of
environmental mitigation, remediation or liability.
"Franchise Hauler" means any hauler or collector who provides Acceptable Waste collection services
within the City pursuant to, or under authority granted by, a permit, contract, franchise or other agreement with the
City. The term Franchise Hauler includes the City itself if Acceptable Waste collection and transportation services
are provided directly by City operated municipal collection service.
"Governmental Body" means any federal, State, county, city or regional legislative, executive, judicial or
other governmental board, agency, authority, commission, administration, court or other body, or any officer thereof
acting within the scope of his or her authority.
"Hazardous Substance" has the meaning given such term in CERCLA, the Carpenter -Presley Tanner
Hazardous Substance Account Act (California Health and Safety Code Section 25300 et seq.), and Titles 22 and 26
of the California Code of Regulations and other regulations promulgated thereunder.
"Hazardous Waste" means (a) any waste which by reason of its quality, concentration, composition or
physical, chemical or infectious characteristics may do either of the following: cause, or significantly contribute to,
an increase in mortality or an increase in serious irreversnble, or incapacitating reversible, illness, or pose a
substantial threat or potential hazard to human health or the environment, or any waste which is defined or regulated
as a hazardous waste, toxic substance, hazardous chemical substance or mixture, or asbestos under Applicable Law,
as amended from time to time including, but not limited to; (1) the Resource Conservation and Recovery Act and
the regulations contained in 40 CFR Parts 260-281; (2) the Toxic Substances Control Act (15 U.S.C. Sections 2601
et seq.) and the regulations contained in 40 CFR Parts 761-766; (3) the California Health and Safety Code,
Section 25117 (West 1992 & Supp. 1996); (4) the California Public Resources Code, Section 40141 (West 1996);
and (5) future additional or substitute Applicable Law pertaining to the identification, treatment, storage or disposal
of toxic substances or hazardous wastes; or (b) radioactive materials which are source, special nuclear or by-product
material as defined by the Atomic Energy Act of 1954 (42 U.S.C. Section 2011 et seq.) and the regulations
contained in 10 CFR Part 40.
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"Imported Acceptable Waste" means Acceptable Waste that is generated outside of the geographical
boundaries of the County and delivered to the Disposal System.
"Independent Haulers" means those waste collection/hauler companies primarily engaged as a principal
business in the collection and transportation of municipal solid waste generated in the County of Orange which are
not obligated to deliver County Acceptable Waste to the Disposal System pursuant to a franchise, contract, permit or
other authorization with a city in the County.
"Initial Term" has the meaning specified in Section 6.1(A) hereof.
"Legal Entitlement" means all permits, licenses, approvals, authorizations, consents and entitlements of
whatever kind and however described which are required under Applicable Law to be obtained or maintained by any
person with respect to the Disposal System or the performance of any obligation under this Agreement or the
matters covered hereby.
"Legal Proceeding" means every action, suit, litigation, arbitration, administrative proceeding, and other
legal or equitable proceeding having a hearing upon this Agreement.
"Loss -and -Expense" means any and all loss, liability, obligation, damage, delay, penalty, judgment,
deposit, cost, expense, claim, demand, charge, tax, or expense, including all fees and costs.
"Net Import Revenues" has the meaning ascribed thereto in Section 3.6(E).
"Non -Recycled City Acceptable Waste" means all City Acceptable Waste other than Recycled City
Acceptable Waste.
"Overdue Rate" means the maximum rate of interest permitted by the laws of the State, if applicable, or the
prime rate established from time to time by the Bank of America, N.A. or its successors and assigns, plus 2%,
whichever is lower.
"Participating City" means any city or Sanitary District executing a Disposal Agreement in accordance
with Section 3.6(A) hereof and meeting all requisite conditions to the Commencement Date thereof.
"Plan of Adjustment" mans the County's Modified Second Amended Plan of Adjustment, confirmed by
the United States Bankruptcy Court Central District of California in that Conformed Order Confirming Modified
Second Amended Plan of Adjustment, filed May 17, 1346.
"Posted Disposal Rate" means the per ton tipping fee charged by the County for the disposal of solid waste
at the Disposal System by parties which are not entitled to disposal service at the Contract Rate pursuant to this
Agreement.
"Prohibited Medical Waste" means any medical or infectious waste prohibited or restricted under
Applicable Law from being received by or disposed at the Disposal System.
"Qualified Household Hazardous Waste" means waste materials determined by the Board, the Department
of Health Services, the State Water Resources Control Board, or the Air Resources Board to be:
(1) Of a nature that they must be listed as hazardous in State statutes and regulations;
(2) Toxic/ignitable/corrosive reactive; and
(3) Carcinogenic/mutageniclteratogenic;
which are discarded from households as opposed to businesses. Qualified Household Hazardous Waste shall not
include Unacceptable Waste.
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"Recycled City Acceptable Waste" means any otherwise Controllable Waste which is separated from
Acceptable Waste by the generator thereof or by processing and which is "recycled" within the meaning of
Section 40180 of the Public Resources Code.
"Renewal Term" has the meaning specified in Subsection 6.1(B) hereof.
"Residue" means any material remaining from the processing, by any means and to any extent, of City
Acceptable Waste or Recycled City Acceptable Waste; provided, however, that Residue shall not include minimal
amounts of material remaining after such processing (which minimal amounts shall in no event exceed 10% of the
amount of such City Acceptable Waste or Recycled City Acceptable Waste prior to processing).
"Resource Conservation and Recovery Act" or RCRA" means the Resource Conservation and Recovery
Act, 42 U.S.C.A. Section 6901 etseq., as amended and superseded.
"Restricted Reserves" has the meaning specified in Section 4.5.
"Sanitary Districts" means the sanitary districts in the County formed pursuant to the Sanitary District Act
of 1923, codified at Cal. Ann. Health & Safety Code Section 6400 et seq., as amended, supplemented, superseded
and replaced from time to time.
"Self -Hauled Waste" means City Acceptable Waste collected and hauled by Self -Haulers.
"Self -Hauler" means any person not engaged commercially in waste haulage who collects and hauls
Acceptable Waste generated from residential or business activities conducted by such person.
"Service Coordinator" means the service coordinator for either party designated pursuant to
subsection 3.5(C) hereof,
"Service Covenant" means the covenants and agreements of the County set forth in Sections 3.2 and 3.3
hereof.
"Source -Separated Household Hazardous Waste" means Qualified Household Hazardous Waste which has
been segregated from Acceptable Waste originating or generated within the geographical jurisdiction of the City at
the source or location of generation.
"Source -Separated Household Hazardous Waste Disposal System" means the collection centers, facilities,
contracts and other arrangements owned or administered by the County fat the receipt, handling and disposal of
Source -Separated Household Hazardous Waste.
"State" means the State of California.
"Tout" shall mean the Term of this Agreement.
"Ton" means a "short ton" of 2,000 pounds.
"Transfer Station" means any materials recovery facility, composting facility, intermediate processing
facility, recycling center, transfer station or other waste handling or management facility to which solid waste
collected for the City is delivered for processing before disposal in the Disposal System.
"Unacceptable Waste" means Hazardous Waste; Hazardous Substances; Prohibited Medical Waste,
Qualified Household Hazardous Waste separated from Acceptable Waste; explosives, ordnance, highly flammable
substances, and noxious materials and lead -acid batteries (except if delivered in minimal quantities); drums and
closed containers; liquid waste, oil, human wastes; machinery and equipment from commercial or industrial sources,
such as hardened gears, shafts, motor vehicles or major components thereof, agricultural equipment, trailers, marine
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vessels and steel cable; hot loads; and any waste which the Disposal System is prohibited from receiving under
Applicable Law.
"Uncontrollable Circumstance" means any act, event or condition affecting the Disposal System, the
County, the City, or any of their Franchise Haulers, contractors or suppliers to the extent that it materially and
adversely affects the ability of either party to perform any obligation under the Agreement (except for payment
obligations), if such act, event or condition is beyond the reasonable control of and is not also the result of the
willful or negligent act, error or omission or failure to exercise reasonable diligence on the part of the party relying
thereon as justification for not performing an obligation or complying with any condition required of such party
under the Agreement; provided, however, that the contesting in good faith or the failure in good faith to contest such
action or inaction shall not be construed as willful or negligent action or a lack of reasonable diligence of either
party. Examples of Uncontrollable Circumstances are:
(1) an act of God, landslide, lightning, earthquake, fire, explosion, flood, sabotage or similar
occurrence, acts of a public enemy, extortion, war, blockade or insurrection, riot or civil disturbance; and
(2) a Change in Law.
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"Unincorporated Area" means those portions of the County which are not contained within the
jurisdictional boundaries of incorporated cities.
"Unincorporated Area Acceptable Waste" means Acceptable Waste originating from or generated within
the Unincorporated Area.
"Unrestricted Reserves" means cash and other reserves of the Disposal System which are not Restricted
Reserves.
"Waste Disposal Covenant" means the covenants and agreements of the City set forth in Section 3.1 hereof.
SECTION 1.2 MERPRET'ATION. In this Agreement, unless the context otherwise requires:
(A) Rdgrences_Hercto. The terms "hereby", "hereof', "herein", "hereunder" and any similar
terms refer to this Agreement, and the term "hereafter" means after, and the term "heretofore" means before, the
Contract Date.
(B) Gender and Plurality. Words of the masculine gender mean and include correlative
words of the feminine and neuter genders and words importing the singular number mean and include the plural
number and vice versa.
(C) Persons. Words importing persons include firms, companies, associations, general
partnerships, limited partnerships, trusts, business trusts, corporations and other legal entities, including public
bodies, as well as individuals.
(D) Headings The table of contents and any headings preceding the text of the Articles,
Sections and subsections of this Agreement shall be solely for convenience of reference and shall not constitute a
part of this Agreement, nor shall they affect its meaning, construction or effect.
(E) No Third Party Beneficiaries, Nothing in this Agreement is intended to confer on haulers
or any other person other than the parties hereto and their respective permitted successors and assigns hereunder any
rights or remedies under or by reason of this Agreement.
(F) Counterparts. This Agreement may be executed in any number of original counterparts.
All such counterparts shall constitute but one and the same Agreement.
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(G) Applicable Law. This Agreement shall be governed by and construed in accordance with
the Applicable Laws of the State of California.
(H) Severability_. If any clause, provision, subsection, Section or Article of this Agreement
shall be ruled invalid by any court of jurisdiction, then the parties shall: (1) promptly meet and negotiate a substitute
for such clause, provision, subsection, Section or Article which shall, to the greatest extent legally permissible,
effect the intent of the parties therein; (2) if necessary or desirable to aveomplish item (1) above, apply to the court
having declared such invalidity for a judicial construction of the invalidated portion of this Agreement; and
(3) negotiate such changes in, substitutions for or additions to the remaining provisions of this Agreement as may be
necessary in addition to and in conjunction with items (1) and (2) above to effect the intent of the parties in the
invalid provision. The invalidity of such clause, provision, subsection, Section or Article shall not affect any of the
remaining provisions hereof, and this Agreement shall be construed and enforced as if such invalid portion did not
exist, unless such invalidity frustrates the underlying primary purpose of the Agreement.
(I) Inte tion• Pres=ign of C . This Agreement contains the entire
agreement between the parties with respect to the transactions contemplated hereby. This Agreement shall
completely and fully supersede all prior understandings and agreements between the Parties with respect to such
transactions; provided, however, that this Agreement shall not supersede the following agreements:
1) MOU, dated March 10, 1992, between the City of Brea and the County of
Orange regarding the Olinda Alpha Landfill as amended on April 6, 1993 and November 29,1994;
2) MOU, dated May 11, 1995, between the City of Brea and the County of Orange
regarding importation of out -of -County waste to the Olinda Alpha Landfill;
3) Settlement Agreement, dated August 1, 1984, between the City of Irvine and the
County of Orange regarding the Bee Canyon Landfill (currently called Frank R. Bowerman Landfill);
4) MOU, dated May 16, 1995, between the City of Irvine and the County of
Orange regarding importation of cut -of -County waste to the Frank R. Bowerman Landfill;
5) MOU, dated September 12, 1995, and amended November 21, 1995, between
the City of San Juan Capistrano and the County of Orange regarding importation of out -of -County waste to the
Prima Deshecha Landfill;
6) MOU, dated July 1, 1997, between the City of San Clemente[, the Orange
County Flood Control District] and the County of Orange regarding the Prima Deshecha Landfill; and
7) Cooperative Agreement, dated August 15, 2006, between the County and the
City of Irvine.
(J) Recitals. The recitals to this Agreement are not intended to bind the parties hereto. In
the event of a conflict between the recitals and the operative provisions of this Agreement, the operative provisions
shall prevail. The recitals shall not be used to interpret the provisions of the Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
SECTION 2.1 REPRESENTATIONS AND WARRANTIES OF THE CITY. The City represents and
warrants that:
(A) Eli=e The City is a general law or charter city validly existing under the
Constitution and laws of the State.
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(B) Due Authorization, The City has duly authorized the execution and delivery of this
Agreement, and this Agreement has been duly executed and delivered by the City.
SECTION 2.2 REPRESENTATIONS AND WARRANTIES OF THE COUNTY. The County
represents and warrants that:
(A) Existence. The County is a political subdivision of the State of California validly
existing under the Constitution and laws of the State.
(B) Due Authorization. The County has duly authorized the execution and delivery of this
Agreement, and this Agreement has been duly executed and delivered by the County.
ARTICLE III
DELIVERY AND ACCEPTANCE OF WASTE
AND PROVISION OF DISPOSAL SERVICE
SECTION 3.1 DELIVERY OF WASTE.
(A) Waste Disposal Covenant. Subject to the occurrence of the Commencement Date and
throughout the Term of this Agreement, the City shall exercise all legal and contractual power and authority which it
may possess from time to time to deliver or cause the delivery of all Controllable Waste to the Disposal System in
accordance herewith.
(B) Recycled City Acceptable Waste. The parties hereto acknowledge the responsibility of
the City to meet the recycling and landfill diversion goals contained in the Act. Nothing in this Agreement is
intended or shall be interpreted to prohibit or impair the ability of the City to meet such responsibilities, or to restrict
the right of the residents, businesses or organizations in the City to practice source separation, recycling, composting
or other materials recovery activities, or to restrict the right of the City to conduct, sponsor, encourage or require
such activities in any form. No reduction in the amount of Controllable Waste generated in the City and delivered to
the Disposal System by or on behalf of the City which may result from any such source separation or recycling
program shall cause the City any liability hereunder (other than potential adjustment to the Contract Rate to the
extent provided in Article IV hereof) and shall not constitute a breach of this Agreement.
(C) Waste Delivered to Transfer Station. All Residue from any processing of Controllable
Waste by materials recovery, composting, recycling or other means, wherever performed, shall constitute
Controllable Waste and be subject to the Waste Disposal Covenant. Where City Acceptable Waste is processed at a
facility which concurrently processes other Acceptable Waste in a manner which produces commingled residue
which cannot be traced to a geographic source, generic residues from such facility in Tonnage equal to the residues
that would have been produced had City Acceptable Waste only been processed at the facility shall constitute
Controllable Waste and he subject to the Waste Disposal Covenant. Any City Acceptable Waste or material derived
or segregated therefrom which is held in storage and asserted by the possessor thereof to constitute Recycled City
Acceptable Waste awaiting sale or distribution to the secondary materials markets shall constitute Controllable
Waste if, when and to the extant that the storage or diversion thereof can be reasonably deemed to constitute an
evasion of the Waste Disposal Covenant rather than generally recognized, accepted and prevailing practice in the
Southern California materials recovery and recycling industry conducted in accordance with Applicable Law. In
order for the owner and/or operator of a transfer station to be entitled to deliver Acceptable Waste from a
Participating City to the Disposal System for the Contract Rate as provided in Article IV, such owner and/or
operator must execute a direct agreement with the County, acknowledging and agreeing to comply with the
obligation of the Participating City to cause the delivery of all Controllable Waste to the Disposal System pursuant
to this Agreement. In addition, the County shall be authorized to implement procedures to determine if Acceptable
Waste delivered by the owners or operators of Transfer Stations is entitled to utilize the Disposal System for the
Contract Rate. Such procedures may include requiring Transfer Stations to certify, under penalty of perjury, the
source of any such Acceptable Waste. if necessary, the County may require that, in order to qualify for use of the
Disposal System for the Contract Rate, Transfer Stations must deliver Controllable Waste in loads containing only
Controllable Waste, and not commingled with Acceptable Waste from entities which are not Participating Cities or
Participating Independent Haulers.
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(D) Power to Obligate Waste Disposal and Comely with this Agreement. On or before the
Commencement Date, (i) any City franchise, contract, lease, or other agreement which is lawfully in effect relating
to or affecting Controllable Waste shall provide, or shall have been amended to provide, that the City shall have the
right without material restriction on and after the Commencement Date to direct the delivery of all Controllable
Waste to a disposal location selected by the City (whether or not such Controllable Waste is delivered to a transfer
station as an intermediate step prior to landfill disposal) and otherwise to comply with its obligations under this
Agreement with respect to Controllable Waste and Franchise Haulers, and (ii) the City shall designate the Disposal
System as the disposal location pursuant to such franchise, contract, lease or other agreement. On and after the
Commencement Date and throughout the Term of this Agreement the City (a) shall not enter into any franchise,
contract, lease, agreement or obligation, issue any permit, license or approval, or adopt any ordinance, resolution or
law which is materially inconsistent with the requirements of the Waste Disposal Covenant, and (b) shall maintain
non-exclusive or exclusive franchises or other contractual arrangements over any City Acceptable Waste which, as
of the Contract Date, is subject to non-exclusive or exclusive franchise or other contractual arrangements. The City
agrees that the County shall be a third party beneficiary of the obligation of Franchise Haulers to deliver
Controllable Waste to the Disposal System, and may directly enforce such obligation through any legal means
available. The City shall notify in writing each Franchise Hauler of the County's third party beneficiary rights.
(E) Wage Flow Enforcement. (1) The City, in cooperation with the Department, shall
establish, implement, carry out and enforce a waste flow enforcement program which is sufficient to assure the
delivery of all Controllable Waste to the Disposal System pursuant to and in accordance with the Waste Disposal
Covenant for disposal at the times and in the manner provided herein. The waste flow enforcement program shall
consist of amending City franchises, permits or authorizations with all Franchise Haulers, to the extent required by
this Section and to the extent allowed by law, and shall include in addition, to the extent necessary and appropriate
in the circumstances to assure compliance with the Waste Disposal Covenant, but shall not be limited to:
(i) licensing or permitting Franchise Haulers, upon the condition of compliance with the Waste Disposal Covenant,
(ii) providing for and taking appropriate enforcement action under any such franchise, license, or permit, such as but
not limited to the suspension, revocation and termination of collection rights and privileges, the imposition of fines
or collection of damages, and the exercise of injunctive relief against non -complying Franchise Haulers and
(iii) causing any Transfer Station to which Controllable Waste is delivered for processing to deliver certification,
under the penalty of perjury, of the amounts of Controllable Waste received and Residue remaining from processing
at such Transfer Station.
(2) The City acknowledges and agrees that in the event of a breach of the Waste Disposal Covenant by the
City, the City shall pay the County an amount equal to the amount that the City would have been required to pay to
the County had the Waste Disposal Covenant not been breached, which shall be calculated by (x) subtracting the
number of tons actually delivered during the month(s) of the breach from the number of tons that were delivered
during the same month(s) closest in time when there was no such breach, even if such month(s) closest in time was
prior to the Terns, and (y) multiplying such amount by the Contract Rate in effect at the time of such breach (or any
higher rate with respect to which the County has provided notice pursuant to Section 4.2). In the event that the
County terminates the Waste Disposal Agreement as a result of such breach, the damages due as a result of such
termination shall be equal to (aa) the average monthly deliveries by the City for the twelve months prior to the
commencement of the breach multiplied by (bb) the Contract Rate in effect at the time of such breach (or any higher
rate with respect to which the County has provided notice pursuant to Section 4.2), multiplied by (cc) the number of
months that would have remained in the Term of the Agreement had the termination not occurred. The parties
recognize that if the City fails to meet its obligations hereunder, the County will suffer damages and that it is and
will be impracticable and extremely difficult to ascertain and determine the exact amount of such damages.
Therefore, the parties agree that the damages specified above represent a reasonable estimate of the amount of such
damages, considering all of the circumstances existing on the date hereto, including the relationship of the sums to
the range of harm to the County that reasonably could be anticipated and anticipation that proof of actual damages
would be costly or inconvenient. In signing this Agreement, each party specifically oonfirms the accuracy of the
statements made above and the fact that each party had ample opportunity to consult with legal counsel and obtain
an explanation of this liquidated damage provision at the time that this Agreement was made.
(F) Legal Challenges to Franchise System. The City shall use its best efforts to preserve,
protect and defend its right to exercise and comply with the Waste Disposal Covenant against any challenge thereto,
legal or otherwise (including any lawsuits against the City or the County, whether as plaintiff or defendant), by a
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Franchise Hauler or any other person, based upon breach of contract, violation of law or any other legal theory. The
City shall bear the cost and expense of any such Legal Proceeding or other challenge. In the event any such Legal
Proceeding relating to the Waste Disposal Covenant or the City's exercise thereof establishes in a final
determination that such covenant or exercise thereof is void, unlawful or unenforceable, or if any Franchise Hauler
fails to deliver Controllable Waste to the Disposal System in breach of its fi-anchise with the City on the grounds that
a judicial determination made by any court or other Applicable Law has rendered its obligation to deliver
Controllable Waste to the Disposal System void, unlawful or unenforceable on any legal grounds, with the result
that actual waste deliveries to the Disposal System fall below the Cumulative Tonnage Targets, the County shall be
entitled to avail itself of the remedies described in Section 4.2(B) hereof.
(G) Franchise Haulers. The City shall compile and provide the Department with the
following information concerning all Franchise Haulers: name, address and phone number; identification number;
area of collection and transportation; and franchise and permit terms.
(H) Waste information System The City shall cooperate with the Department in collecting
information and otherwise monitoring Franchise Haulers in order to assure compliance with this Agreement. Such
information may include, to the extant practicable, data pertaining to Controllable Waste collected, transported,
stored, processed and disposed of, Recycled City Acceptable Waste collected, transported, stored, processed and
marketed or disposed of, Franchise Haulers' franchise, permit or license terms, collection areas, transportation
routes and compliance with Applicable Law; and all other information which may reasonably be required by the
Department in connection with this Agreement. The City agrees to include in any revised franchise, contract, license
or permit or other authorization granted to Franchise Haulers an obligation of the Franchise Hauler to provide to the
County information relating to the Controllable Waste collected by such Franchise Hauler, including origins from
which such Controllable Waste was collected, tonnage by type of load (residential, commercial, rolloff box),
customer service levels, tonnage delivered by transfer station or material recovery facility utilized, and other related
information.
(1) City Actions Affecting County. The City agrees to carry out and fulfill its
responsibilities under this Agreement and Applicable Law so as to permit full and timely compliance by the County
with its covenants and agreements with the State. In particular, the City agrees not to conduct, authorize or permit
any disposal services for Controllable Waste to be provided in competition with the Disposal Services provided by
the County hereunder, and not to take or omit to take any action with respect to Controllable Waste or its collection,
transportation, transfer, storage, treatment or disposal that may materially and adversely affect the County's ability
to achieve such timely compliance. Notwithstanding the foregoing, the City shall not be required to deny any permit
or license or refuse to grant any approval while exercising its police powers.
(J) No Right of Waste SAstitution. Nothing in this Agreement shall authorize or entitle the
City to deliver or cause the delivery to the Disposal System of Acceptable Waste originating from or generated
outside the jurisdiction of the City, nor obligate the County to receive or dispose of any such Acceptable Waste.
The City shall not assign in whole or in part its right to deliver or cause to be delivered Controllable Waste to the
County hereunder, and shall not permit any Acceptable Waste originating from or generated outside the jurisdiction
of the City to be substituted for Controllable Waste for any purpose hereunder.
(K) Annexations and, Restructuring, It is the intention of the parties that this Agreement and
the obligations and rights of the City hereunder, including particularly the Waste Disposal Covenant and the
Contract Rate, shall, to the extent permitted by Applicable Law, extend to any territory annexed by the City (or any
territory with respect to which the City assumes, after March 30, 2048, solid waste management responsibility from
a Sanitary District or other public entity) and shall bind any successor or restructured Governmental Body which
shall assume or succeed to the rights of the City under Applicable Law.
SECTION 3.2 PROVISION QF DISPOSAL SERVICES BY 3M C
(A) Service Covenant. Commencing on the Commencement Date, the County shall provide
or cause the provision of the service of (1) receiving and disposing of all Controllable Waste at the Disposal System
(or such other facilities, including transfer stations, as the County may determine to use), (2) disposing in
accordance with subsection 3.2(C) hereof of Controllable Waste which, at any time and for any reason, is in excess
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of the disposal capacity of the Disposal System, and (3) in accordance with subsection 3.3(C) hereof, disposing of
Unacceptable Waste inadvertently accepted at the Disposal System. The County, to the maximum extent permitted
under Applicable Law, shall use its best efforts to keep the Olinda Alpha, Prima Deshecha and Frank R. Bowerman
Landfills open for the receipt of waste for disposal or transfer of Controllable Waste pursuant to this Agreement.
The County shall do and perform all acts and things which may be necessary or desirable in connection with its
covenants in this subsection, including without limitation all planning, development, administration,
implementation, construction, operation, maintenance, management, financing and contract work related thereto or
undertaken in connection therewith. The County shall exercise all reasonable efforts to minimize the costs incurred
in complying with the Service Covenant consistent with its responsibilities hereunder and under this Agreement,
Applicable Law and prudent solid waste management practice and environmental considerations.
(B) Plqi!alar Facilities. The Department and the City shall consult and cooperate in
determining whether and to what extent from time to time other landfills other than that primarily used by the City
shall be utilized to receive Controllable Waste. The Department shall immediately advise the City by telephone of
any situation, event or circumstance which results in the partial or complete inability of the County to receive
Controllable Waste at any particular landfill within the Disposal System, its effect on the County's ability to perform
its obligations hereunder, and the County's best estimate of the probable duration. The Department shall confirm
such advice in writing within 24 hours of the occurrence of any such inability. The County stall use its best efforts
to resume normal operation of the landfill primarily used by the City as soon as possible. In the event of a
temporary material increase in average daily deliveries of Controllable Waste from the City which the County
reasonably believes could result in the permitted daily disposal capacity limit to be exceeded with respect to a
particular landfill within the Disposal System, the County shall have the right to redirect the increased Controllable
Waste to another landfill within the Disposal System for the duration of the increase in average daily deliveries;
provided, however, that in such circumstances the County shall utilize reasonable efforts to first redirect waste
which is not Controllable Waste.
(C) Compliance with Service Covenant Not Excused for any Reason. Commencing on the
Commencement Date, the obligations of the County to duly observe and comply with the Service Covenant shall
apply continuously and without interruption for the Term of this Agreement. In the event that any Change in Law or
other Uncontrollable Circumstance impairs or precludes compliance with the Service Covenant by the means or
methods then being, employed by the County, the County shall implement alternative or substitute means and
methods to enable it to satisfy the terms and conditions of the Service Covenant. In the event that a Change in Law
precludes the County from complying with such covenants with the means or methods then being employed and
from utilizing any alternate or substitute means or methods of compliance, the County shall continuously use all
reasonable efforts to effectuate executive, legislative or judicial change in or relief from the applicability of such law
so as to enable the County lawfully to resume compliance with such covenants as soon as possible following the
Change in Law.
SECTION 3.3 COUNTY RIGHT TO REFUSE WASTE.
(A) Right of Refusal. Notwithstanding any other provision hereof, the County may refuse
delivery of:
(1) Hazardous Waste;
(2) Controllable Waste delivered at hours other than those provided in Section 3.5
hereof;
(3) Waste that does not constitute Acceptable Waste;
(4) Waste that is delivered by any party which has not executed a Waste Disposal
Agreement; and
(5) Controllable Waste consisting primarily of construction and demolition debris or
inerts which may cause a particular facility's daily tonnage limit to be exceeded
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(B) Identification of Unacceptable Waste. The Department shall have the right (but not the
duty or the obligation) to inspect the vehicles of all Franchise Haulers delivering material to the Disposal System,
and may require that the Franchise Hauler remove any Unacceptable Waste from such vehicle before it is urdoaded.
If the Department determines that it is impractical to separate Controllable Waste from Unacceptable Waste in any
vehicle, or if the Franchise Hauler delivering such waste is unwilling to make such separation, or if any vehicle is
carrying waste which may spill or leak, then the Department may reject the entire vehicle, and the City shall
forthwith remove or cause the removal of the entire delivery from the Disposal System. The Department may take
all reasonable measures to prevent waste from being blown or scattered before and during unloading. The City shall
cause the Franchise Haulers to observe and comply with Applicable Law, the operating rules and regulations of the
Department, and the provisions of this Agreement prohibiting the delivery of Unacceptable Waste to the Disposal
System.
(C) HAzardous Waste and Hazardous Substances. The parties acknowledge that the Disposal
System has not been designed or permitted, and is not intended to be used in any manner or to any extent, for the
handling, transportation, storage or disposal of Hazardous Waste or Hazardous Substances. Neither the County nor
the City shall countenance or knowingly permit the delivery of Hazardous Waste or Hazardous Substances to the
Disposal System.
(D) Disposal of Unacceptable Waste and Hazardous_ Waste. If Unacceptable Waste or
Hazardous Waste is discovered in a vehicle at any landfill within the Disposal System, the driver of the vehicle will
not be permitted to discharge the load. If a vehicle is observed unloading Unacceptable Waste or Hazardous Waste
in the tipping area of a landfill within the Disposal System Department personnel will use reasonable efforts to
assure that such material has been characterized, properly secured and its disposition resolved. The return or
reloading onto the delivery vehicle of any Hazardous Waste, Prohibited Medical Waste or other waste requiring
handling or transportation shall be conducted in accordance with Applicable Law. Whenever Hazardous Waste is
detected at any landfill within the Disposal System, the Department shall take immediate action in accordance with
Applicable Law.
(E) wee Separated_Household Hazardous Waste. The County shall maintain, as part ofthe
Disposal System, a Source -Separated Household Hazardous Waste Disposal System for the disposal of Source -
Separated Household Hazardous Waste. The disposal service provided by such system shall constitute part of the
Disposal Services, and shall be available to Participating Cities as part of the Contract Rate. The County may
impose additional fees and charges for services relating to Source -Separated Household Hazardous Waste with
respect to cities which are not parties to a Disposal Agreement. The County may provide for the expansion,
contraction or modification of the Source -Separated Household Hazardous Waste Disposal System and its services
to the extent necessary to ensure the Disposal System's viability; provided, however, if the County chooses to
reduce services, the County shall nonetheless continue to expend funds for the Source -Separated Household
Hazardous Waste Disposal System each year during the term of this Agreement in an amount at least equal to the
amount of funds expended for the Source -Separated Household Hazardous Waste Disposal System during fiscal
year 2006-07 as adjusted by changes in the Producer Price Index.
SECTION 3A UNINCORPORATED AREA ACCEPTABLE WASTE. Commencing on the
Commencement Date, the County in accordance with Applicable Law shall provide or cause to be provided the
service of disposing of non -recycled Acceptable Waste originating or generated within the Unincorporated Area
and, with respect to such waste, shall comply with the Waste Disposal Covenant as if the County constituted a City
subject to the Waste Disposal Covenant hereunder. Rates charged by the County for the disposal of each class of
non -recycled Acceptable Waste generated in the Unincorporated Area shall be the same as the Contract Fee charged
for the disposal of each class of Controllable Waste. The County shall use its best efforts to preserve, protect and
defend its right to exercise and comply with the Waste Disposal Covenant (with respect to non -recycled Acceptable
Waste generated m the Unincorporated Area) against any challenge thereto, legal or otherwise, by a Franchise
Hauler or any other person, based upon breach of contract, violation of law or any other legal theory. The County
shall bear the cost and expense of any such Legal Proceeding or other challenge (with respect to non -recycled
Acceptable Waste generated in the Unincorporated Area).
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SECTION 3.5 MISCELLANEOUS OPERATIONAL MATTERS.
(A) Operating Hours. The County shall keep the Disposal System open for the receiving of
Controllable Waste during such regular operating hours as may be established by the Department in the operating
rules and regulations applicable to the Disposal System. The County shall utilize best efforts to maintain
substantially similar hours, as were in effect on January 2, 2009, for the receipt of waste through the term of this
Agreement (subject to Applicable Law).
(B) Scalgg and Wgiding. The Department shall operate and maintain permanent scales at
the Disposal System. The Department shall weigh all vehicles delivering waste by or on behalf of the City (whether
or not the County accepts such waste) and prepare a daily weight record with regard to such delivery.
(C) Service Coordinator. The County and the City each shall designate in writing thirty days
prior to the expected Commencement Date a person to transmit instructions, receive information and otherwise
coordinate service matters arising pursuant to this Agreement (each a "Service Coordinator). Either party may
designate a successor or substitute Service Coordinator at any time by notice to the other party.
(D) Review of Records. Each party may review the other party's books and records with
respect to matters relevant to the performance by either party under this Agreement or otherwise related to the
operation of the Disposal System to the extent allowed under the California Public Records Act (interpreted as if the
parties to this Agreement were natural persons for purposes of the Public Records Act).
SECTION 3.6 OTHER USERS OF THE DISPOSAL. SYSTEM.
(A) On or Before 20091. On or before [120 DAYS AFTER BOARD
APPROVAL], the County shall have the right to &ter into waste disposal agreements with Orange County entities
with respect to Acceptable Waste which was originally discarded by the first generator thereof within the
geographical limits of the County, including other cities in the County, Sanitary Districts, Transfer Stations and
Independent Haulers, which waste disposal agreements shall have terms and provisions substantially identical to the
terms and provisions of this Agreement; provided, however, that in no event shall such agreements have terms and
provisions more favorable than the terms and provisions of this Agreement (including but not limited to the Contract
Rate and availability of disposal capacity).
(B) After 2009. After [120 DAYS AFTER BOARD APPROVAL), the
County shall have the right to enter into waste disposal agreements with Orange County entities, including any city,
Sanitary District, Transfer Station and Independent Hauler, or otherwise accept Acceptable Waste from such parties,
but only within the limitations contained in this Section. Any such agreement or waste acceptance agreement must
provide that the party delivering waste shall pay a Posted Disposal Rate at least 10% higher than the Contract Rate
unless the County determines it is in the best interest of the Disposal System to establish a Posted Disposal Rate less
than 10% higher than the Contract Rate. In no event shall the Posted Disposal Rate be equal to or less than the
Contract Rate. In addition, the County shall reserve the right in any such waste disposal agreement at any time, to
the extent permitted by Applicable Law, to refuse to receive and dispose of Acceptable Waste from any city, County
Sanitary District, Transfer Station and Independent Hauler if and to the extent that such receipt and disposal may
materially and adversely affect the ability of the County to comply with its obligations to the Participating Cities
under the Disposal Agreements to which each is a party.
(C) Receipt of Imported Acceptable
Waste on a Contract Basis. The County shall have the right to enter into a contract or other agreement with any
municipal or private non -County entity for the delivery of Imported Acceptable Waste on terms and conditions that
the County determines to be necessary to ensure and enhance the viability of the Disposal System for the benefit of
the County and the Participating Cities and to generate Net Import Revenues. The County certifies that in its good
faith judgment the contract or other agreement for the delivery of such waste will not materially and adversely affect
the ability of the County to receive and dispose of Acceptable Waste from the Participating Cities in accordance
with the applicable Disposal Agreements throughout the Term thereof. The term of any such agreement for the
disposal of Imported Acceptable Waste shall end by the later to occur of (i) December 31, 2015 or (ii) the date on
which County general purpose revenues are no longer expended to pay debt service on the Orange County Public
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Financing Authority Lease Revenue Refunding Bonds Series 2005, but in no event later than the last day of the
fiscal year commencing July 1, 201 S.
(D) Self Haulers. The City and the County acknowledge that Self -Haulers shall be entitled to
deliver Self -Hauled Waste to the Disposal System, on a non -contract basis, at the Posted Disposal Rate. Such Self -
Haulers shall not be entitled to dispose of Acceptable Waste for the Contract Rate.
(E) Application and Use of Revenues From Other Users. All revenues received by the
County from the disposal of County Acceptable Waste by the Disposal System, and all revenues received by the
County from the disposal of Imported Acceptable Waste by the Disposal System, shall be deposited by the County
in the County OC Waste & Recycling Enterprise Fund and shall constitute revenues of the Disposal System.
Pursuant to the County's Plan of Adjustment, the County is entitled to receive net revenues (after payment of all
costs attributable to the acceptance of such Imported Acceptable Waste at the Disposal System) ("Net Import
Revenues") from the disposal of Imported Acceptable Waste by the Disposal System, and such Net Import
Revenues may be used for the payment of bankruptcy related obligations in accordance with the Plan of Adjustment.
Costs attributable to the disposal of Imported Acceptable Waste include deposits to the Environmental Fund,
deposits to closure and postclosure reserves, City host fees (if applicable), incremental operating costs (such as
manpower expenditures, equipment, services and supplies expenditures), state surcharges, and a pro rata share of
capital project costs. The parties acknowledge that their intention in determining to allow the importation of
Imported Acceptable Waste for disposal by the Disposal System is to stabilize the Contract Rate at rates below those
which would otherwise prevail in the absence of such importation.
SECTION 3.7 COUNTY PROVISION OF WASTE DIVERSION SERVICES.
(A) County -Wide Recycling Services. This Agreement does not require the County to
provide for any source reduction, materials recovery, recycling, composting, or other waste diversion services by the
County nor any payment therefor by the City, by Franchise Haulers or by ratepayers; provided, however, any
County -Wide Recycling Services may be fimded through the County OC Waste & Recycling Enterprise Fund. Any
such recycling services may be expanded, contracted or modified by the County at any time in its sole discretion.
(B) Separate City -County Diversion Service Agreements. Nothing in this Agreement is
intended to limit the right of the County to enter into a separate agreement with the City or any other person to
provide source reduction, materials recovery, recycling, composting or other waste diversion services. Any such
program conducted by the County, whether in participation with the City, any other of the Participating Cities, other
Cities, Sanitary Districts, Transfer Stations, Independent Haulers, Unincorporated Area or non -County entity, shall
be operated, managed and accounted for as a program separate and distinct from the Disposal Services program
contemplated by the Disposal Agreements and shall not be funded through the general revenues of the Disposal
System.
ARTICLE N
CONTRACT RATE
SECTION 4.1 CHARGING AND SECURING PAYMENT OF CONTRACT RATE. The City
acknowledges that the County shall have the right to charge and collect a Contract Rate for the acceptance and
disposal of Controllable Waste delivered to the System by any Franchise Hauler. The Contract Rate shall be
calculated and established, and may be modified, as provided in Section 4.2 hereof. In addition, the City
acknowledges that the County shall have the right to establish as part of the operating rules and regulations
reasonable measures to secure the payment of all Contract Rates.
SECTION 4.2 CONTRACT RATE.
(A) EstabliabMMt of Co tract Rate. The Contract Rate payable by each Franchise Hauler
shall be (x) $22.00 per ton from the Commencement Date through June 30, 2010, and (y) $29.95 per ton on and after
July 1, 2010, in both cases contingent on the delivery to the Disposal System of an amount of Acceptable Waste at
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least equal to the Cumulative Tonnage Targets identified in Appendix 2, and subject to adjustment necessary to
reflect the circumstances set forth in this Section 4.2:
(i) increased costs incurred by the County (in excess of available insurance
proceeds) due to the occurrence of one or more Uncontrollable Circumstances, other than Manges in Law;
(ii) costs incurred by the County (in excess of available insurance proceeds and
amounts available in the Environmental Fund for such purposes) remediating environmental conditions at the
Disposal System or inactive or closed disposal sites in the County, which, if uncorrected, could give rise to potential
claims under CERCLA or related federal or state statutes, including costs incurred providing indemnification to any
Participating City pursuant to subsection 7.3; or
(iii) tonnage shortfalls to the extent permitted by Sections 4.2(B);
(iv) average annual inflation prior to July 1, 2010 in excess of the levels set forth in
Section 4.2(H) and escalation pursuant to Section 4.2(F) ;
(v) increased costs incurred by the County (in excess of available insurance
proceeds) due to the occurrence of one or more Changes in Law; or
(vi) Capital Costs in excess of the Capital Costs at any point in time during the term
hereof exceeding the Cumulative Capital Costs set forth in Appendix 3.
Prior to adjusting the Contract Rate as a result of any of the circumstances described in clauses (i), (ii) or (iii) above,
the County shall utilize the following remedies in the following order of priority:
(x) reduce the costs of operating the Disposal System to the extent practicable; and
(y) utilize Unrestricted Reserves to pay costs of the Disposal System.
The County will not be required to utilize such remedies prior to adjusting the Contract Rate as a result of any of the
circumstances described in clauses (iv), (v) or (vi) above.
Any adjustments to the Contract Rate permitted by this Section shall be calculated by the County to reflect the actual
costs or expenses of addressing the circumstance or circumstances pursuant to which the adjustment is authorized.
The County agrees that it will evaluate the feasibility of long term financing for significant capital costs where
appropriate.
(B) County Acceptable Waste Shortfall. In the event that the actual amount of County
Acceptable Waste delivered to the Disposal System at the end of any Contract Year is less than the Cumulative
Tonnage Target for such Contract Year for County Acceptable Waste, as specified in Appendix 2, the County shall
utilize the following options, in the following order of priority, in order to remedy any adverse effects of such
tonnage shortfall:
the Disposal System;
(i) reduce the costs of operating the Disposal System to the extent practicable;
(ii) utilize Restricted Reserves described in clause (iii) of Section 4.5 to pay costs of
(iii) utilize Unrestricted Reserves to pay costs of the Disposal System; and
(iv) adjust the Contract Rate.
In the event that implementation of the steps described above does not result in sufficient revenues to satisfactorily
address the shortfall in tonnage, the County shall have the right to terminate the Agreement on 60 days written
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notice to the City. In addition, in the event that actual deliveries to the Disposal System exceed the Cumulative
Tonnage Target as of the end of any Contract Year, the City acknowledges the County shall have the right to
establish reserves intended to reflect the potential for lower than expected annual waste deliveries in subsequent
years, and that any such reserves shall constitute "Restricted Reserves".
(C) [RESERVED]
(D) Interim Use of Remedies. In the event that, during any Contract Year, waste deliveries to
the Disposal System are 250% or more below delivery projections for such Contract Year with the result that the
County determines it is unlikely that the Cumulative Tonnage Target will be achieved as of the end of such Contract
Year, the County may utilize the remedies described in Section 4.2(B) prior to the end of such Contract Year;
provided, however, that if at the end of such Contract Year, the Cumulative Tonnage Target is actually met, the
County shall reimburse any adjustments to the Contract Rate made pursuant to this Section to Participating Cities.
Such reimbursement may be given as a credit or adjustment to the Contract Rate for future deliveries, rather than a
lump sum payment.
(E) 5necial Charges. Notwithstanding Section 4.2(A), the County shall have the right to
impose special charges for the receipt of bard to handle materials, such as bulky materials, construction and
demolition debris, tree stumps and sludge. Such special charges shall be calculated to reflect the reasonable
incremental costs to the County of accepting such hard to handle materials. 1n addition, in the event that the Board
of Supervisors of the County makes a determination to implement a facility (including but not limited to a transfer
station, landfill, conversion technology facility, or a materials recovery or processing facility), which facility would
be intended to provide for disposal alternatives after the closure of one or more of the landfills currently operating
within the Disposal System, the County may impose an additional charge of $0.50 per ton of Acceptable Waste in
order to pay the costs of the study, development, planning, construction and/or operation of such facility.
Adjustments pursuant to this Section 4.2(E) shall not require compliance with the provisions of Section
4,2(I).
(F) Escalation, The Contract Rate shall be adjusted each July 1, beginning July 1, 2011. The
change will be equal to the positive percentage change in the Consumer Price Index — All Urban Consumers, U.S.
city average, All items, Not Seasonally Adjusted, Series ID CUUROONSAO ("CPI") as measured from the October
21 months prior to the rate adjustment to the October immediately preceding the rate adjustment. For example: The
July 1, 2011 rate adjustment shall be based upon the index change from October 2009, to October 2010, referred to
as year 1 and year 2 respectively in the following example.
Formula to calculate percentage change in the Contract Rate:
Step 1:
October Year 2 CPI
October Year 1 CPI
I- 1 = % increase in Contract Rate
Step 2: Current Contract Rate x (1+ % increase in Contract Rate) = Contract Rate as of July 1 Year 2
On each April 1, commencing April 1, 2011, the County shall provide the City with notice of the
adjustment to the Contract Rate to he effective the following July 1. Such notice shall contain the calculation of the
adjustment set forth above. The County will calculate the new Contract Rate each year.
In the event that the change in the CPI is negative, no rate adjustment will be made for that year. No
adjustment under this Section 4.2(F) will take place until the October CPI index surpasses the index level as of the
October immediately preceding the last annual rate adjustment pursuant to this Section 4,1(F), which will be
considered "year I" in calculating the change in the Contract Rate.
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For example, if the CPT is measured as follows: October 2009 = 205, October 2010 = 204, October 2011 =
201, October 2012 = 208, then there would be no adjustment in July 2011, or July 2012, and an adjustment equal to
the change from 205 to 208 would be implemented on July 1, 2013.
Adjustments pursuant to this Section 4.2(F) shall not require compliance with the provisions of Section
4.2(1).
(G) Adjustment Resulting fromr(�Sreased Fees. In addition to the other adjustments specified
herein, the Contract Rate shall be adjusted to reflect the imposition of new fees or increase in existing fees relating
to the disposal of Controllable Waste imposed by state, federal or other agencies (i.e., the State's Integrated Waste
Management fee, which is currently $1.40 per ton). The adjustment shall be equal to the amount of any new or
increased fee, and the adjustment shall take effect so as to coincide with the imposition of the new or increased fee.
The County shall provide notice of any increase pursuant to this Section 4.2(G) as soon as practicable after
becoming aware of the imposition of any fees described above.
Adjustments pursuant to this Section 4.2(G) shall not require compliance with the provisions of Section
4.2(I).
(1T) Calculation of Cumulative Inflation Rate. For purposes of Section 4.2(Axiv) for
adjustments prior to July 1, 2011, the inflation shall be calculated as the change in the CPI between July of the year
of calculation and July 1, 2008. Inflation shall be deemed to exceed the levels set forth below if the ratio between
the CPT for July for the year of calculation (calculated in accordance with the formula below) and July 2008 exceeds
the ratio corresponding to such year of calculation on the table below. The ratio shall be calculated in accordance
with the following formula:
(July CPI of calculation year / CPI for July 2008)
Year of Calculation
Ra do
July 1 2008
1.0000
July 1 2009
1.0356
July 1 2010
1.0723
In the event the CPI is no longer published during the term of this Agreement, such other index identified by the
Bureau of Labor Statistics or otherwise generally accepted as a replacement for CPI shall be used for purposes of
this Agreement. In the event of an adjustment to the Contract Rate pursuant to this section 4.2(1-1), such adjustment
shall be applied to the Contract Rate effective until June 30, 2010, and the Contract Rate effective July 1, 2010.
Adjustments pursuant to this Section 4.2(M shall not require compliance with the provisions of Section
4.2(I).
(1) Procedure for Rate Adjustments In the event the County determines that it is entitled to
an adjustment of the Contract Rate pursuant to Section 4.2(A) (other than 4.2(A)(iv)) or Section 4.2(B), it shall
utilize the procedures described in this Section 4.2(1). The County shall be required to provide the City with at least
90 days prior written notice of the adjustment, which notice shall identify the specific event(s) or circumstances
which require the adjustment. The notice shall also specify the earliest date on which the County Board of
Supervisors shall consider the proposed adjustment. At least 45 days prior to such meeting of the Board of
Supervisors, the County shall provide the City with a report which shall contain the following information: a
description of the specific event(s) or circumstances which require the adjustment; a description (including cost
estimates) of any activities (which may include, but not be limited to capital improvements to the Disposal System)
required in order to remedy such event or circumstance, certification by the County that it has implemented the
remedies described in Section 4.2(A) or (B) prior to requiring the rate adjustment; and a description of the
methodology used by the County to calculate the adjustment to the Contract Rate (hereinafter the "County Re)ort').
In the event the City disputes the adjustment, it shall provide the County with a written description of the reason for
the dispute at least 10 days prior to the meeting of the Board of Supervisors identified in the initial notice of the
County (hereinafter the "City Report"). The City Report shall be provided to the Board of Supervisors for
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consideration at such meeting in connection with the proposed rate adjustment. At any time from and after the date
that the County provides the City with the County Report, upon the request of either party, the City and County shall
meet and confer in good faith to resolve any dispute that may arise regarding the proposed adjustment to the
Contract Rale. In any such meeting, the County shall be represented by the Director of the Department or his or her
designee. In the event the Board of Supervisors approves all or a portion of the proposed rate adjustment, such rate
adjustment shall become effective on the date identified in the initial notice sent by the County regardless of whether
or not the procedures in Section 4.2(J) are utilized, but subject to potential reimbursement pursuant to clause (11) of
Section 4.2(J).
(J) Procedure far Expedited Judicial Review of Contested Rate Adjustment. In the event
that, within 30 days after the effective date of any Contract Rate adjustment made pursuant to Section 4.2(l),
Participating Cities which, in the aggregate, accounted for more than 50% of the County Acceptable Waste
delivered to the County System in the twelve months preceding the Contract Rate adjustment, provide notice to the
County of their election to utilize the procedures described in this Section 4.2(J), then the provisions of this
Section 4.2(J) shall be utilized by such Participating Cities and the County to resolve the dispute over the Contract
Rate Adjustment. In the event that Participating Cities which have delivered the amount of waste contemplated in
the preceding sentence do not provide notice to the County of such election, the County shall have no obligation to
participate in or cooperate in the implementation of the procedures described below in this Section 4.2(J).
(1) In order to pursue the expedited judicial determination described in this Section
(the "Expedited Rate Determination"), the Participating Cities which have made the election described in the
paragraph above (the "Challenging Cities") must commence a civil action for breach of contract (the "Action') in
the grange County Superior Court within 45 days of the date on which the Board of Supervisors approves the
challenged adjustment to the Contract Rate.
(2) Within two (2) days of filing the Action, the Challenging Cities shall personally
serve on the County Counsel both the summons and complaint, and a stipulation and request for the entering of an
order incorporating all of the procedural provisions relating to the Expedited Rate Determination as set forth in this
Section 4.2(J) (such stipulation and request for order is hereinafter referred to as the "Expedited Rate Determination
Stipulation"). The Expedited Rate Determination Stipulation shall be signed by each of the Challenging Cities.
(3) Within fifteen (15) days of the date of service upon the County of the summons
and complaint, and Expedited Rate Determination Stipulation, the County Counsel shall execute the Expedited Rate
Determination Stipulation and personally serve upon the Challenging Cities through their counsel of record the
Expedited Rate Determination Stipulation and its answer to the complaint in the Action. The Stipulation shall also
include a waiver by each of the parties of their right to a jury trial of the issues raised in the Action. The City and
the County mutually agree that the duty to execute the Expedited Rate Determination Stipulation and comply with
the procedures set forth for Expedited Rate Determination in this Section 4.2(J) shall be, and are hereby deemed to
be, ministerial duties which the law specifically enjoins upon each of them, and shall be subject to enforcement by
the parties herein pursuant to Code of Civil Procedure Section 1085, et seq., or by means of a complaint for specific
performance.
(4) Within three (3) days of the date of service by the County upon the Challenging
Cities of the fully signed Expedited Rate Determination Stipulation, the County and the Challenging Cities shall
jointly make ex parte application to the Orange County Superior Court in the Action for the issuance of the order
contained in the Expedited Rate Determination Stipulation. At such ex parte application, the County and the
Challenging Cities shall also seek to confirm with the Orange County Superior Court the briefing schedule, and
request a hearing date in accordance with the procedures set forth in this Section 4.2(J).
(5) Within ten (10) days of the date of service by the County upon the Challenging
Cities of the answer in the Expedited Rate Determination, the Challenging Cities shall file with the court and
personally serve upon the County the Challenging Cities' opening brief and the Record in the Expedited Rate
Determination. The opening brief shall not exceed 15 pages in length. The Record shall consist o& and be limited
to, the record of the proceedings before the Board of Supervisors with respect to the adjustment of the Contract Rate,
including but not limited to the County Report and the City Report prepared by each or any of the Challenging
Cities pursuant to Section 4.2(I), any materials filed or lodged with the Hoard of Supervisors and the Orange County
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Waste Commission, the transcript of the proceedings of the Board of Supervisors meeting and the Orange County
Waste Commission, the minutes of the Board of Supervisors and the Orange County Waste Commission meeting,
and the resolution and/or other documentation evidencing action by the Board of Supervisors and the Orange
County Waste Commission to adjust the Contract Rate pursuant to Scetion4.2(A) or (B). The record shall also
include the most recent reports prepared pursuant to Sections 4.6 and 4.7. The Expedited Rate Determination shall
be decided solely on the evidence in the Record, and no extrinsic evidence shall be submitted to or considered by the
court.
(6) Within ten (10) days of service by the Challenging Cities of their opening brief
and the Record, the County shall file and personally serve upon the Challenging Cities the County's opposition
brief. The opposition brief shall not exceed 15 pages in length.
(7) Within five (S) days of service by the County upon the Challenging Cities of the
opposition brief, the Challenging Cities may file and personally serve upon the County a rebuttal brief, which shall
not exceed 10 pages in length.
(8) The trial of the Expedited Rate Determination shall be conducted as a hearing
which shall be conducted at the date set by the court in the ex parte hearing conducted pursuant to Section 4.2(J)(4),
or such other date and time ordered by the court. If the court requests the parties to prepare supplemental briefs in
response to any question or issue raised by the court, the parties may do so.
(9) The standard of review for the Expedited Rate Determination shall be the
preponderance of the evidence based upon the Record. The burden of proof shall be borne by the Challenging
Cities, and the burden of proof shall be the same as with respect to a plaintiff in a damages action for breach of
contract. Both parties have participated in the drafting of this Agreement. Accordingly, nothing set forth in this
Agreement shall be interpreted or construed for or against either of the parties as a consequence of their participation
in the drafting of this Agreement.
(10) The court shall issue its written statement of decision and enter judgment within
thirty (30) days of the date of the smearing in the Expedited Rate Determination.
(11) If the court determines that any portion of the County's adjusted Contract Rate
which is the subject of the Expedited Rate Determination was improperly imposed, the County shall, within 30 days
of the date of the statement of decision, reimburse to the City the amount improperly imposed, together with interest
calculated at the highest percentage rate that does not constitute usury under California laws. Such reimbursement
may be made in the form of a reduction in the Contract Rate for a future period (not to exceed twelve months)
reasonably calculated to provide full reimbursement of the amounts described above.
(12) If for any reason the court does not sign the order contained in the Expedited
Rate Determination Stipulation, the City shall, within 30 days of the court's denial of such requested order, file with
the court and personally serve upon the County a motion for summary judgment and/or motion for judgment on the
pleadings, in accordance with Code of Civil Procedure Section 437(c) and 438. By executing this Agreement, the
parties hereby stipulate that, in the event that the Challenging Cities file such summary judgment motion and/or
motion for judgment on the pleadings, the Record shall be deemed to have been incorporated into the complaint and
answer filed by the Challenging Cities and the County, and no evidence outside of the Record is relevant or material
to the dispute raised in the Expedited Rate Determination. The briefing schedule and hearing on such motion for
summary judgment and/or motion for judgment on the pleadings shall be in accordance with Code of Civil
Procedure Section 437(c). The Challenging Cities and the County shall be bound by all of the requirements and
restrictions set forth in Section 4.2(J) that are not in conflict with this paragraph (12).
(13) In the event that the court both does not sign the order contained in the
Expedited Rate Determination Stipulation and either does not bear or does not issue a ruling on the merits on the
motion for summary judgment and/or judgment on the pleadings which is dispositive of the issues, claims and
causes of action in the complaint filed by the Challenging Cities, the County and the Challenging Cities shall, within
twenty days following the issuance of the Court's order or decision not to honor the parties' stipulation or not to
hear the parties' motion for summary judgment, make application to the Presiding Judge of the Orange County
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Superior Court for an expedited hearing or trial date. The Challenging Cities and the County shall be bound by all
of the requirements and restrictions set forth in Section 4.2(J) that are not in conflict with this paragraph (13). In this
regard, and without limiting the foregoing, the only evidence to be presented at the hearing or trial shall be the
Record, no testimony shall be presented at the hearing or trial; and both the County and the Challenging Cities
waive all rights to a jury trial, to any reconsideration of the decision of the court, to a new trial after the court renders
a decision, and to any appeal or review of the decision of the court.
SECTION 4.3 RESPONSIBILITY FOR PAYMENT OF THE CONTRACT RATE.
(A) Payment by City. In the event and to the extent (1) the City uses municipal collection
forces directly for the haulage of Controllable Waste to the Disposal System or (2) the City uses non -municipal
Franchise Haulers for collection but nonetheless elects to pay the Contract Rate from City revenues, the City, as its
own Franchise Hauler, shall have direct responsibility for payment of the Contract Rate, and shall take all such
budgetary, appropriation and other action as may be necessary to provide for the timely payment of the Contract
Rate. Such action may include, depending upon the means authorized by the City to provide for such payment, the
levy and collection of general or special taxes, the imposition of benefit assessments, or the collection of user fees,
generator charges or other similar impositions for municipal solid waste disposal. The City shall use best efforts in
accordance with Applicable Law to levy and impose all such taxes, assessments, fees or charges, and will take all
steps, actions and proceedings for the enforcement, collection and payment of all such amounts which shall become
delinquent, to the full extent permitted by Applicable Law. To the extent provided in Section 7.5 hereof, the
obligation of the City for such Contract Rates shall be limited to amounts in the City's Solid Waste Enterprise Fund.
From the Commencement Date to the date of expiration or termination of this Agreement, the obligation to the City
to pay the Contract Rate, to the extent the City rather than Franchise Haulers is responsible directly for payment and
provided that the Service Covenant has been complied with, shall be absolute and unconditional and shall not be
subject to delay or diminution by reason of set-off, abatement, counterclaim, existence of a dispute or otherwise.
(B) PgMent by Franc lam„ aulers. With respect to Controllable Waste delivered by
Franchise Haulers other than City municipal collection forces, the obligation to pay the Contract ]tate shall rest with
such Franchise Haulers and not with the City and, unless the City has agreed with the County to be responsible for
Franchise Hauler payments, the City shall not be financially responsible for any delay or failure by such Franchise
Hauler to pay the Contract Rate or any portion thereof when due. In the event of any such failure, the County and
the City shall cooperate with each other and use their best efforts to obtain timely payment. Such efforts by the
County may include, as appropriate, requiring cash payments for disposal rights from such Franchise Hauler and
bringing a legal proceeding for payment and damages. Such efforts by the City may include, as appropriate, legal
proceedings to suspend, revoke or terminate the Franchise Hauler's franchise, permit or license rights.
(C) Di Utes. If the City or the Franchise Hauler disputes any amount billed by the County in
any Billing Statement, the City or the Franchise Hauler shall nonetheless pay the billed amount and shall provide the
County with written objection within 30 days of the receipt of such Billing Statement indicating the amount that is
being disputed and providing all reasons then known to the City or the Franchise Hauler for any objection to or
disagreement with such amount. If the City or the Franchise Hauler and the County are not able to resolve such
dispute within 30 days after the City's or the Franchise Hauler's objection, either party may pursue appropriate legal
remedies.
SECTION 4.4 BILLING OF THE CONTRACT RATE. The County shall continue to bill Contract
Rates after the Commencement Date, in the same manner as it has customarily billed tipping fees. Subject to the
other provisions of this Agreement, the County shall have the right to modify or amend such manner of billing on
reasonable notice to affected parties.
SECTION 4.5 RESTRI D RESERVES. For purposes of this Agreement, "ResWeted Reserves"
means cash and other reserves of the Disposal System which are restricted to specific uses or are otherwise being
reserved by the County to meet its obligations hereunder throughout the term of the Agreement with respect to the
Disposal System pursuant to any Applicable Law, contract, adopted budget, budgetary policy of the County with
respect to the Disposal System, or other arrangement. Such cash and other reserves are not required to be deposited
in separate accounts or funds in order to constitute "Restricted Reserves" hereunder, and may be commingled with
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Unrestricted Reserves or other funds of the County attributable to the Disposal System. "Restricted Reserves" shall
include, but not be limited to, the following:
(i) reserves for closure of components of the Disposal System to the extent required
by Applicable Law;
(ii) amounts reserved by the County for funding of post closure maintenance and
monitoring with respect to components of the Disposal System,-
(iii)
ystem;(iii) reserves established to protect the Disposal System against the adverse financial
impact of potential decreases in waste deliveries pursuant to Section 4.2(B);
(iv) amounts reserved to pay the costs of capital improvements with respect to the
Disposal System;
(v) amounts funded from revenues during the early years of the term of the
Agreement reserved to enable the County to provide disposal services for the Contract Rate during the later years of
the Agreement;
(vi) amounts temporarily held by the County prior to payment to the State or other
Governmental Bodies pursuant to Applicable Law (including any fees or charges payable to the State Integrated
Waste Management Board);
(vd) reserves required to meet bond covenants pursuant to financing agreements for
Disposal System assets to the extent such amounts must be legally separate and distinct from other reserves
identified in this Section;
(viii) security deposits from landfill deferred payment program users;
(ix) amounts held by the County in the Environmental Fund (provided, however, that
such amounts in the Environmental Fund will be made available and used by the County if required to pay costs
relating to environmental remediation or other related costs);
(x) AB939 surcharges;
(xi) amounts held by the County in the Corrective Action Fund held pursuant to
CCR Title 27 to demonstrate financial assurance to pay for potential groundwater contamination; and
(xii) an amount equal to three months of budgeted expenses for the Disposal System
for the current fiscal year, representing working capital of the Disposal System.
SECTION 4.6 AUDITED FINANCIAL STATEMENTS. The County shall annually, on or before
January 1 each year, prepare or cause to be prepared and have on file for inspection an annual report for the
preceding Contract Year, accompanied by a certificate of an independent public accountant or of the County Auditor
and Controller as to the examination of the financial statements therein (describing such statements as fairly
presenting the information therein in conformity with generally accepted accounting principles) relating to the
Disposal System, the Disposal Services, and the fiscal activities of the County OC Waste Disposal Enterprise Fund,
and including statements in reasonable detail of the financial condition of the County OC Waste Disposal Enterprise
Fund as of the end of the Contract Year and revenue and expenses for the Contract Year.
SECTION 4.7 ANNUAL UPDATE OF TEN-YEAR FINANCIAL PROJECTION. The County shall
annually, on or before May 1 of each year, prepare or cause to be prepared, an updated Ten -Year Financial
Projection for the Disposal System. Said Financial Projection shall include at least two full years of prior actual data
and ten years of future projections including the following elements:
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County Acceptable Waste, in tons;
2. Imported Acceptable Waste, in tons;
Revenues and expenditures;
4. Cash fund balances, including all monies in the County Solid Waste Enterprise
Fund, with specific delineation of monies in the Environmental Fund, Restricted Reserves, Unrestricted Reserves,
and all other funds of the System.
5. Projected liabilities for closure and post closure as well as reasonable reserves
for other environmental costs.
The purpose of the Ten -Year Financial Projection is to keep the City fully informed about the future financial
condition of the Disposal System. The County shall cause a copy of the Ten -Year Financial Projection to be
delivered to the City Manager of the City no later than May 1 of each year. Upon request, the County shall make
available to the Cities supporting information related to the ten-year financial projection
ARTICLE V
BREACH, ENFORCEMENT AND TERMINATION
SECTION 5.1 BREACH. The parties agree that in the event either party breaches any obligation under
this Agreement or any representation made by either party hereunder is untrue in any material respect, the other
party shall have the right to take any action at law or in equity (including actions for injunctive relief, mandamus and
specific performance) it may have to enforce the payment of any amounts due or the performance of any obligations
to be performed hereunder. Neither party shall have the right to terminate this Agreement except as provided in
Section 5.2 and Section 5.3 hereof or as otherwise provided in this Agreement.
SECTION 5.2 CITY CONVENIENCE TERMINATION. The City shall have the right to terminate this
Agreement in its sole discretion, for its convenience and without cause at any time during the Term hereof upon
90 days' written notice to the County. If the City exercises its rights to terminate the Agreement pursuant to this
Section, the City shall pay the County a termination fee equal to the Contract Rate in effect at the time of such
termination (or any higher rate with respect to which the County has provided notice pursuant to Section 4.2)
multiplied by the number of tons of City Acceptable Waste delivered to the Disposal System during the preceding
twelve months (or, if the City had been in breach of the Waste Disposal Covenant during such prior months, such
amount as would have been delivered if the City had complied with the Waste Disposal Covenant), multiplied by the
number of years remaining in the Term of the Agreement.
SECTION 5.3 TERMINATION.
(A) By City. Except as expressly provided herein, the City shall have no right to terminate
this Agreement for cause except in the event of the repeated failure or refusal by the County substantially to perform
any material obligation under this Agreement unless such failure or refusal is excused by an Uncontrollable
Circumstance; except that no such failure or refusal shall give the City the right to terminate this Agreement for
cause under this subsection unless:
(1) The City has given prior written notice to the County stating that a specified
failure or refusal to perform exists which will, unless corrected, constitute a material breach of this Agreement on
the part of the County and which will, in its opinion, give the City the right to terminate this Agreement for cause
under this subsection unless such breach is corrected within a reasonable period of time, and
(2) The County has neither challenged in an appropriate forum (in accordance with
Section 5.5) the City's conclusion that such failure or refusal to perform has occurred or constitutes a material
breach of this Agreement nor corrected or diligently taken steps to correct such breach within a reasonable period of
time not more than 90 days from the date of the notice given pursuant to clause (1) of this subsection (but if the
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County shall have diligently taken steps to correct such breach within such reasonable period of time, the same shall
not constitute a breach giving rise to the right of termination for as long as the County is continuing to take such
steps to correct such breach).
(B) By County. Except as expressly provided herein, the County shall have no right to
terminate this Agreement for cause except in the event of the repeated failure or refusal by the City substantially to
perform any material obligation under this Agreement unless such failure or refusal is excused by an Uncontrollable
Circumstance; except that no such failure or refusal shall give the County the right to terminate this Agreement for
cause under this subsection unless.,
(1) The County has given prior written notice to the City stating that a specified
failure or refusal to perform exists which will, unless corrected, constitute a material breach of this Agreement on
the part of the City and which will, in its opinion, give the County right to terminate this Agreement for cause under
this subsection unless such breach is corrected within a reasonable period of time, and
(2) The City has neither challenged in an appropriate forum (in accordance with
Section 5.5) the County's conclusion that such failure or refusal to perform has occurred or constitutes a material
breach of this Agreement nor corrected or diligently taken steps to correct such breach within a reasonable period of
time not more than 90 days from the date of the notice given pursuant to clause (1) of this subsection (but if the City
shall have diligently taken steps to correct such breach within such reasonable period of time, the same shall not
constitute a breach giving rise to the right of termination for as long as the City is continuing to take such steps to
correct such breach).
SECTION 5.4 NO WAIVERS. No action of the County or the City pursuant to this Agreement
(including, but not limited to, any investigation or payment), and no failure to act, shall constitute a waiver by either
party of the other party's compliance with any term or provision of this Agreement. No course of dealing or delay
by the County or the City in exercising any right, power or remedy under this Agreement shall operate as a waiver
thereof or otherwise prejudice such party's rights, powers and remedies. No single or partial exercise of (or failure
to exercise) any right, power or remedy of the County or the City under this Agreement shall preclude any other or
further exercise thereof of the exercise of any other right, power or remedy.
SECTION 5.5 FORUM FOR DISPUTE RESOLUTION. It is the express intention of the parties that all
legal actions and proceedings related to this Agreement or to the Disposal System or to any rights or any relationship
between the parties arising therefrom shall be solely and exclusively initiated and maintained in courts of the State
of California having appropriate jurisdiction.
ARTICLE VI
TERM
SECTION 6.1 EFFEf,TTVE DATE AND TERM.
(A) Initial Term. This Agreement shall become effective, shall be in full force and effect and
shall be legally binding upon the City and the County from the Contract Date and shall continue in full force and
effect until June 30, 2020, unless earlier terminated in accordance with its terms, in which event the Term shall be
deemed to have expired as of the date of such termination.
(B) Wion to Renew. This Agreement shall be subject to renewal by mutual agreement of
the parties, on or before June 30, 2018, for an additional term of ten years (the "Renewal Term") on the same terms
and conditions as are applicable during the Initial Term hereof. The City shall give the County written notice of its
irrevocable election to renew this Agreement on or before June 30, 2017. If the parties do not renew this Agreement
by June 30, 2018, the Agreement shall expire on June 30, 2020.
(C) Contract Rate During Renewal Term. In connection with the parties' right to renew this
Agreement for an additional ten-year term pursuant to Section 6.1(B), the parties shall, on or before Jane 30, 2018,
negotiate an applicable change in the Contract Rate for such renewal term. In determining any revisions to the
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Contract Rate to be applicable during any renewal period, in addition to the circumstances described in
Section 4.2(A), the parties may take into consideration the following parameters, including but not limited to:
(i) actual cost of operations;
(ii) population growth;
(iii) increase or decrease in available tonnage;
(iv) economic and disposal market conditions in the Southern California region;
(v) changes in transportation and technology;
(vi) closure and expansion of nearby landfills;
(vii) capacity of the Disposal System; and
(viii) available reserves which are in excess of the amount reasonably required as
reserves.
(D) Survival, Accrued Ra ►is. The rights and obligations of the parties hereto pursuant to
Sections 3.1(Ex2X 5.1, 5.3, 5.5, 7.2, 7.3, 7.5, 7.7, 7.8, 7.9, and 7.10 hereof shall survive the termination or
expiration of this Agreement, and no such termination or expiration shall limit or otherwise affect the respective
rights and obligations of the parties hereto accrued prior to the date of such termination or expiration. At the end of
the Term of this Agreement, all other obligations of the parties shall terminate.
SECTION 6.2 COMMENCEMENT DATE.
(A) Obli ati n arii for t"he Commenizement Date. The parties acknowledge
that the Disposal Agreements may be executed and delivered on different dates and that, except as provided in this
subsection, neither the County nor the City shall be obligated to perform its obligations hereunder until the
participation threshold provided herein has been met and the other conditions to the occurrence of the
Commencement Date have occurred. Prior to the Commencement Date, each party hereto shall at its own expense
exercise good faith and due diligence and take all steps within its reasonable control in seeking to satisfy the
conditions to the Commencement Date set forth herein as soon as reasonably practicable. The County and the City,
each at its own expense, shall cooperate fully with each other and the other Participating Cities in connection with
the foregoing undertaking. Until the Commencement Date occurs, the Original WDAs shall remain in full force and
effect.
(B) Condition to the Commencement Date. The Commencement Date for the Agreement
shall be the date on which the percentage of the County's Acceptable Waste attributable to Participating Cities
which have executed and delivered Disposal Agreements shall exceed 85% percent (using the percentage rates
attributed to such Cities in Appendix 1). Unincorporated County is assumed to be a Participating City for the
purposes of determining the Commencement Date in accordance with this Section 6.2(b) and Appendix 1 of this
Agreement.
(C) Satisfaction of Condition and Commencement Date. Upon the satisfaction or waiver of
the condition to the Commencement Date, the County shall give written notice thereof to the cities which have
theretofore executed Disposal Agreements. The parties shall thereupon hold a formal closing acknowledging the
satisfaction or waiver of the condition to the Commencement Date, certifying that the Commencement Date has
occurred and designating the Participating Cities. Copies of all of the documents or instruments constituting or
evidencing satisfaction of the Commencement Date conditions shall be furnished to each party prior to or on the
Commencement Date.
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(D) Newly Incorporated Cities. Any city within Orange County which becomes incorporated
after the Commencement Date shall upon request be offered the opportunity by the County to become a
Participating City. If any such City executes a Disposal Agreement and meets the applicable condition provided in
subsection 6.2(B) hereof within 180 days following the date of its municipal incorporation, then such City shall be
entitled to execute a Waste Disposal Agreement on substantially the same terms and conditions as this Agreement
(including the Contract Rate), notwithstanding the limitations contained in Section 3.6(B).
(E) Failure of Condition. If by s 20 DAYS AFTER BOARD APPROVAL], or
such later date as the County may agree, the condition to a Commencement Date specified in this Section is not
satisfied, either patty hereto may, by notice in writing to the other party, terminate this Agreement. Neither party
shall be liable to the other for the termination of this Agreement pursuant to this subsection, and each of the parties
shall bear its respective costs and expenses incurred in seeking to satisfy the condition to the Commencement Date.
Notwithstanding anything in this Agreement to the contrary, in the event that this Agreement is terminated pursuant
to this Section, the provisions of the Original WDA shall remain in full force and effect on the terms and conditions
set forth therein.
ARTICLE VII
GENERAL PROVISIONS
SECTION 7.1 OPERATION AND MAINTENANCE OF THE DISPOSAL SYSTEM. The County, at
its cost and expense through the County Solid Waste Enterprise Fund, shall at all times operate, or caused to be
operated, the Disposal System in accordance with Applicable Law and the operating rules and regulations of the
Department.
SECTION 7.2 UNCONTROLLaLE CIRCUMSTANCES ONERALLY.
(A) Performance Exc.usW. Except as otherwise specifically provided in this Agreement,
neither the County nor the City shall be liable to the other for any failure or delay in the performance of any
obligation under this Agreement (other than any payment at the time due and owing) to the extent such failure or
delay is due to the occurrence of an Uncontrollable Circumstance.
(B) Nglice. Mitigation. The party experiencing an Uncontrollable Circumstance shall notify
the other party by telecommunication or telephone and in writing, on or promptly after the date the party
experiencing such Uncontrollable Circumstance first knew of the commencement thereof, followed within 15 days
by a written description of (1) the Uncontrollable Circumstance and the cause thereof (to the extent known), (2) the
date the Uncontrollable Circumstance began and the cause thereof, its estimated duration, the estimated time during
which the performance of such party's obligations hereunder will be delayed, (3) the estimated amount, if any, by
which the Contract Rate may need to be adjusted as a result of such Uncontrollable Circumstance, (4) its estimated
impact on the other obligations of such party under this Agreement and (5) potential mitigating actions which might
be taken by the County or City and any areas where costs might be reduced and the approximate amount of such
cost reductions. Each party shall provide prompt written notice of the cessation of such Uncontrollable
Circumstance. Whenever such act, event or condition shall occur, the party claiming to be adversely affected
thereby shall, as promptly as reasonably possible, use its best efforts to eliminate the cause therefor, reduce costs and
resume performance under this Agreement. In addition, with respect to Changes in Law, the County shall diligently
contest any such changes the imposition of which would have a material adverse impact on the Disposal System.
While the delay continues, the County or City shall give notice to the other party, before the fust day of each
succeeding month, updating the information previously submitted.
(C) Impact on Contract Rate. If and to the extent that Uncontrollable Circumstances interfere
with, delay or increase the cost to the County of meeting its obligations hereunder and providing Disposal Services
to the Participating Cities in accordance herewith, the County shall be entitled to an increase in the Contract Rate as
provided in Section 4.2 herein or an extension in the schedule for performance equal to the amount of the increased
cost or the time lost as a result thereof. The proceeds of any insurance available to meet any such increased cost
shall be applied to such purpose prior to any determination of cost increases payable under this subsection. Any cost
reductions achieved through the mitigating measures undertaken by the County pursuant to subsection 7.2(B) hereof
upon the occurrence of an Uncontrollable Circumstance shall be reflected in a reduction of the amount by which the
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Contract Rate would have otherwise been increased or shall serve to reduce the Contract Rate to reflect such
mitigation measures, as applicable.
SECTION 7.3 INDEMNIFICATION. To the extent permitted by law, the County agrees that, it will
protect, indemnify, defend and hold harmless the City from and against all Loss -and -Expense arising from the City's
activity as an "arranger" (for purposes of and as such term is defined under CERCLA or comparable state statutes)
of municipal solid waste disposal pursuant to this Agreement, in the event the City shall determine that because of
conflict or any other reason that it wishes to be defended by legal counsel other than the legal counsel provided by
the County, the cost of providing such legal counsel shall be the City's sole responsibility. The City acknowledges
the County's legitimate interest in actively participating in any defense, litigation or settlement whether the County
or the City provides legal counsel. Any costs incurred by the County pursuant to this Section shall be considered an
Uncontrollable Circumstance cost and the County shall be entitled to adjust the Contract Rate as provided in
subsection 4.2(A) herein. The County shall not, however, be required to indemnify or defend the City from and
against all Loss -and -Expense arising from any willful, knowing, illegal or negligent disposal of hazardous waste
(other than incidental amounts of Household Hazardous Waste commonly found in municipal solid waste and
permitted to be disposed in Class III landfills under RCRA) which violates the County's landfill permits or
Applicable Law. The parties agree that this provision constitutes an indemnity under CERCLA (to the extent of the
specific provisions of this Section). The parties acknowledge that this subsection is not intended to and does not
create any obligation on the part of the County to provide any indemnification or defense to any Franchise Hauler,
whether franchised or not, or any Independent Hauler or Transfer Station, under any circumstances. The City
acknowledges the County's legitimate interest in actively participating in any defense, litigation or settlement, and
shall, as a condition to this indemnity, coordinate fully with the County in the defense.
SECTION 7.4 RELATIONSHIP OF THE PARTIES. Neither patty to this Agreement shall have any
responsibility whatsoever with respect to services provided or contractual obligations or liabilities assumed by the
other party hereto, whether accrued, absolute, contingent or otherwise, or whether due or to become due. The
County is an independent contractor of the City and nothing in this Agreement shall be deemed to constitute either
party a partner, agent or legal representative of the other party or to create any fiduciary relationship between the
parties.
• `I11ll.9 a R • i 7.
(A) To the City. Except in the event the City has not established or maintained a City Solid
Waste Enterprise Fund, no recourse shall be had to the general funds or general credit of the City for the payment of
any amount due the County hereunder, or the performance of any obligation incurred hereunder, including any Loss -
and -Expense of any nature arising from the performance or non-performance of the City's obligations hereunder.
The sole recourse of the County for all such amounts shall be to the funds held in any such Solid Waste Enterprise
Fund. All amounts held in any City Solid Waste Enterprise Fund shall be held for the uses permitted and required
thereby, and no such amounts shall constitute property of the County. The City shall make adequate provision in the
administration of any City Solid Waste Enterprise Fund for the payment of any amount or the performance of any
obligation which may be due hereunder.
(B) To the County. No recourse shall be had to the general finds or general credit of the
County for the payment of any amount due the City hereunder, or the performance of any obligation incurred
hereunder, including any Loss -and -Expense of any nature arising from the performance or non-performance of the
County's obligations hereunder. The sole recourse of the City for all such amounts shall be to the funds held in the
County Solid Waste Enterprise Fund in accordance with the terms of this Agreement. All amounts held in the
County Solid Waste Enterprise Fund shall be held for the uses permitted and required thereby, and no such amounts
shall constitute property of the City. The County shall make adequate provision in the administration of the County
Solid Waste Enterprise Fund for the payment of any amount or the performance of any obligation which may be due
hereunder.
SECTION 7.5 PRE. -EXISTING RIGHTS AND LIABILITIES. Nothing in this Agreement is intended
to affect, release, waive or modify any rights, obligations or Liabilities which any party hereto may have to or against
the other party as of the Contract Date relating to the disposal of waste in the Disposal System or any other related
matter.
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SECTION 7.7 NO VESTED RIGHTS. The City shall not acquire any vested property, license or other
rights in the Disposal System by reason of this Agreement.
SECTION 7.8 LIABILITY FOR COLLECTION, TRANSPORTATION AND PROCESSIhLG. Any
liability incurred by the City as a result of collecting Acceptable Waste or processing it for diversion from landfill,
or as a result of causing, franchising, permitting, licensing, authorizing or arranging any of the foregoing, shall be its
sole liability, except as expressly otherwise provided herein.
SECTION 7.9 NO CONSEQUENTIAL OR PUNITIVE DAMAGES. In no event shall either party
hereto be liable to the other or obligated in any manner to pay to the other any special, incidental, consequential,
punitive or similar damages based upon claims arising out of or in connection with the performance or non-
performance of its obligations or otherwise under this Agreement, or the material inaccuracy of any representation
made in this Agreement, whether such claims are based upon contract, tort, negligence, warranty or other legal
theory.
SECTION 7.10 AMENDMENTS. Neither this Agreement nor any provision hereof may be changed,
modified, amended or waived except by written agreement duly authorized and executed by both parties.
SECTION 7.11 NOTICE OF LITIGATION. Each party shall deliver written notice to the other of any
Legal Proceeding to which it is a party and which questions the validity or enforceability of this Agreement
executed by the City or the County or any Legal Entitlement issued in connection herewith.
SECTION 7.12 FURTHER ASS1,tUJANCES. At any and all times the City and the County so far as may
be authorized by law shall pass, make, do, execute, acknowledge and deliver any and every such further resolutions,
acts, deeds, conveyances, instruments, assignments, transfers and assurances as may be necessary or reasonably
requested by the other in order to give full effect to this Agreement.
SECTION 7.13 A T OF AGREEMENT. (A) Neither this Agreement nor any of
the rights or obligations hereunder may be assigned by either party hereto without the prior written consent of the
other party, which may be withheld in the other party's sole discretion. Notwithstanding the foregoingt either party
may assign this Agreement to another public entity, subject to the reasonable consent of the other party. In such
circumstances the party not requesting the assignment shall have the right to demand assurances of the financial,
technical and legal ability of the proposed assignee to undertake the responsibilities and obligations of the assigning
ply.
(B) Sale. The County shall not enter into any agreement for the sale of the Disposal System which provides
for an effective date for such sale prior to the termination of this Agreement.
SECTION 7.14 INTEREST ON OVERDUE OBLIGATIONS. Except as otherwise provided herein, all
amounts due hereunder, whether as damages, credits, revenue or reimbursements, that are not paid when due shall
bear interest at the Overdue Rate on the amount outstanding from time to time, on the basis of a 365 -day year,
counting the actual number of days elapsed, and all such interest accrued at any time shall, to the extent permitted by
Applicable Law, be deemed added to the amount due, as accrued.
SECTION 7.15 BINDING EFFECT. This Agreement shall bind and inure to the benefit of the parties
hereto and any successor or assignee acquiring an interest hereunder consistent with the provisions of Section 7.13
hereof.
SECTION 7.16 NOTICES. Any notice or communication required or permitted hereunder shall be in
writing and sufficiently given if delivered in person or sent by certified or registered mail, postage prepaid, to the
notice address of the respective parties set forth on the cover page of this Agreement. Changes in the respective
addresses to which such notices may be directed may be made from time to time by any party by notice to the other
ley.
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APPENDIX 1
ESTIMATED ANNUAL TONNAGE
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IN WITNESS WHEREOF, COUNTY and CITY have caused this Agreement to be executed by their duly
authorized officers or representatives as of the day and year first above written.
Date
COUNTY OF ORANGE
By
Date By
Date By
APPROVED AS TO FORM.-
COUNTY
ORM:COUNTY COUNSEL
ORANGE COUNTY, CALIFORNIA
I'm
Ewoutton copy
Director, OC Waste & Recycling
29
City Representative
City of Newport Beach
[NAME]
City Representative
City of Newport Beach
APPROVED AS TO FORM:
A-'— ff..,
Cifiy Attomev
ATTEST:
z� )
City Clerk
City of Newport Baarh
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APPENDIX 1
`J
PERCENTAGE OF COUNTY ACCEPTABLE WASTE ATTRIBUTABLE TO PARTICIPATING CITIES FOR
PURPOSE OF SECTION 6.2(b)
Jurisdiction
Percentage of County
Acceptable Waste
Anaheim
13.4%
Santa Ana.
10.60/a
Irvine
7.5%
Huntington Beach
6.0%
e
5.8%
Garden Grove
5.1%
Fullerton
4.5%
Unincorporated Orange County
4.3%
Costa Mesa
3.6%
Newport Beach
3.0%
Lake Forest
2.61/11D
Buena Park
2.5%
Mission Viejo
2.3%
Westminster
2.3%
Yorba Linda
2.3%
Brea
2.1%
Tustin
2.0%
cypress
1.9%
La Habra
1.8%
San Clemente
1.7%
Fountain Valley
1.6%
Laguna Niguel
1.6%
Placentia
1.6%
San Juan Ca istrano
1.6%
Laguna Beach
1.4%
Dana Point
1.2%
Stanton
1.10/0
Rancho Santa Margarita
1.00/0
Laguna Hills
0.9%
Seal Beach
0.8%
Aliso Viejo
0.7%
Los Alamitos
0.5%
La Palma
0.3%
LagunaWocds
0.2%
Villa Park
0.2%
Total
100%
(1) Unincorporated County is assumed to be a Participating City for the purposes of determining
the Commencement Date in accordance with Section 6.2(b) of this Agreement.
(2) A Participating City will only be included for purposing of determining the Commencement
Date upon (i) execution of a Waste Disposal Agreement by that Participating City and (ii)
execution of a Hauler Acknowledgement(s) by the Franchise Hauler(s) operating widnin such
Participating City
Execution Copy
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APPENDIX 2
0
Cumulative County Acceptable Waste Tonnage Target to be Used
for Purposes of Section 41(B)
Fiscal Year
County Acceptable Waste
Cumulative County
Tonnage
Acceptable Waste Tonnage
FY 2008-09
3,170,387
3,174,387
FY 2009-10
3,092,806
6,263,193
FY 2010-11
3,185,590
9,448,783
FY 2011-12
3,344,870
12,793,653
FY 2012-13
3,445,216
16,238,869
FY 2013-14
3,514,120
19,752,989
FY 2014-15
3,549,262
23,302,251
FY 2015-16
3,565,608
26,867,859
FY 2016-17
3,582,033
30,449,892
FY 2017-18
3,598,535
34,048,427
FY 2018-19
3,615,115
37,663,542
FY 2019-20
3,631,774
41,295,316
Exertion Copy
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APPENDIX 3
CUMULATIVE CAPITAL COSTS
to be Used
for Purposes of Section 42(A)vi
0
Fiscal Year
(ending June 30
Annual Capital Costs
Cumulative Capital Costs
2009
$37,239,538
$37,939,538
2010
$59,343,405
$97 82,943
2011
$10,433,978
$107,716,921
2012
$13,078,113
$121 95 034
2013
$17.525,040
$138,920074
2014
$11,259,519
$150,179,592
2015
$37,682,758
$187,862,350
2016
$5,W,800
$192,931,1
2017
$10,662,265
$203,593,415
2018
$29,397,698
$232,991 113
2019
$8,263,795
$241,254,2 US
2020
$45103,805
$286 58.713
Execution Copy
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FRANCHISE HAULER ACKNOWLEDGMENT
THIS FRANCHISE HAULER ACKNOWLEDGMENT, dated as of , 2009 (the
"Acknowledgment"), by and between the City of (the "City") and (the "Franchise
Hauler"),
WITNESSETH
[WHEREAS, the City and the Franchise Hauler have heretofore entered into an agreement entitled
, dated as of (the "Franchise"); and[
[WHEREAS, the City has issued to the Franchise Hauler a permit, license, approval or other authorization
the "Authorization") which allows the Franchise Hauler to provide solid waste collection services within the City;
and])
[WHEREAS, the Franchise [SUBSTITUTE "AUTHORIZATION" THROUGHOUT IF APPLICABLE)]
provides for the collection and disposal of certain municipal solid waste as described therein ("Franchise Waste")
generated within the City; and]
WHEREAS, Orange County (the "County") owns, manages and operates a sanitary landfill disposal system
for municipal solid waste generated within the County; and
WHEREAS, the City and the County have heretofore entered into a Waste Disposal Agreement, dated as of
'20D9 (the "Disposal Agreement') determining that the execution of such Disposal Agreement will
serve the public health, safety and welfare of the residents of the City and County, by maintaining public ownership
and stewardship over the Orange County Landfill Disposal System (the "Disposal System"); and
WHEREAS, under the Disposal Agreement, the County has agreed to provide long-term disposal of all
municipal solid waste generated within the City and the City has agreed to exercise all legal, and contractual power
which it possesses from time to time to deliver or cause the delivery of such waste to the Disposal System; and
WHEREAS, the provisions of the Waste Disposal Agreement which guarantee capacity for the long term
disposal of waste at specified rates generated in the City provide significant benefits to the Franchise Hauler;
WHEREAS, notwithstanding any Franchise provisions to the contrary, the Franchise Hauler explicitly
acknowledges the aforementioned benefits to the City, the County and the Franchise Hauler in providing for the
disposal of all Franchise Waste to the Disposal System; and
WHEREAS, the City and the Franchise Hauler desire to enter into this Acknowledgment to assure that the
City and the Franchise Mauler will be entitled to the benefits of the Waste Disposal Agreement and to assure
conformity with the waste delivery obligations which have been agreed to by the City under the Disposal Agreement
through the delivery of waste by the Franchise Hauler to the Disposal System; and
WHEREAS, the Franchise Hauler's agreement to deliver Franchise Waste to the Disposal System under
this Acknowledgment is given in consideration of the Franchise Hauler's right to receive the Contract Rate for such
disposal as provided in the Disposal Agreement.
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound hereby,
agree as follows,
1. Capitalized terms used and not otherwise defined herein are used as defined in the Disposal
Agreement.
Execution Copy
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2. The Franchise Hauler hereby waives any right which it may possess under applicable law to
contest on any ground, constitutional, statutory, case law, administrative or otherwise, (a) the right, power or
authority of the County or the City to enter into or perform their respective obligations under the Disposal
Agreement, (b) the enforceability against the County or the City of the Disposal Agreement, or (c) the right, power
or authority of the City to deliver or cause the delivery of all Controllable Waste to the Designated Disposal Facility
in accordance with this Acknowledgment.
3. The City and the Franchise Hauler each hereby represent that this Acknowledgment has been duly
authorized by all necessary action of their respective governing bodies.
4. The Franchise Hauler shall deliver or cause to be delivered all Controllable Waste (including all
residue from the processing by any means, wherever conducted, of Controllable Waste), to the Disposal System, and
shall otherwise assist the City in complying with its obligations under the Waste Disposal Covenant in Section 3.1 of
the Disposal Agreement.
5. The Franchise Hauler shall not haul Controllable Waste to any materials recovery facility,
composting facility, intermediate processing facility, recycling center, transfer station or other waste handling or
management facility unless the contract or other agreement or arrangement between the Franchise Hauler and the
operator of such facility is sufficient in the opinion of the County to assure that the Residue from such facility
constituting City Acceptable Waste (or Tonnage equivalencies) and the City Acceptable Waste transferred by such
facility shall be delivered to the Designated Disposal Facility in compliance with the Waste Disposal Covenant.
& The Franchise Hauler shall pay the Contract Rate imposed by the County at the Designated
Disposal Facility for the disposal of all Controllable Waste, which rate shall be subject to potential adjustment
necessary to reflect the circumstances set forth in the Disposal Agreement.
7. Nothing in this Acknowledgment is intended to restrict any right or responsibility explicitly given
the Franchise Hauler in the Franchise to recycle City Acceptable Waste, except as provided in paragraph 5 above
with respect to Residue from any such recycling operations.
8. The obligations of the Franchise Hauler under this Acknowledgment shall apply notwithstanding
any provision of the Franchise which may conflict herewith.
9. This Acknowledgment may be enforced by the City by any available legal means. In any
enforcement action by the City, the burden of proof shall be on the Franchise Hauler to demonstrate compliance
herewith.
10. This Acknowledgment shall be in full force and effect and shall be legally binding upon the City
and Franchise Hauler from the dated hereof and shall continue in full force and effect until the earlier of (i) the end
of the term of the Franchise or (ii) the end of the term of the Disposal Agreement.
11. The City and Hauler agree that the County shall be an express third party beneficiary of this
Acknowledgment, and shall be entitled to independently enforce the obligations of the Franchise Hauler hereunder.
12. The Hauler agrees to assist the County in verifying tonnage collected by the Franchise Hauler and
providing information required by the County. Hauler will provide upon request refuse tonnage collected within the
County, and outside the County (if relevant to confirming tonnage origination), separated by jurisdiction, by load
type (residential, commercial, roll -off box), and by facility to which it was delivered (specify which landfill or
transfer station). Hauler will provide customer service levels and route lists, Hauler will cooperate with County
audits to verify reported origin of tonnage by making records and personnel available to the County and/or its
auditors.
Execution Copy
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IN WITNESS WHEREOF, the parties have caused this Acknowledgment to be executed by their duly
authorized officers or representatives as of day of 2009.
CITY OF
Signature:
Printed Name:
Title:
(Franchise Hauler)
Signature:
Printed Name:
Title -
Execution Copy
20 -346
CITY OF NEWPORT BEACH APR ' 709
CITY COUNCIL STAFF REPORT
c-4tq �L
Agenda Item No. 19
April 28, 2009
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Homer Bludau, City Manager
9491644-3000 or hbludau(@acity.newport- beach.ca.us
Mark Hannon, General Services Director
949-644-3061 or mharmon@city.newport-beach.ca.us
SUBJECT: Approval of Ten Year Agreement with the County of Orange for
the Disposal of Municipal Solid Waste
ISSUE:
Should the City Council approve the attached Agreement with the County of
Orange for the disposal of solid waste in the County's landfill disposal system for
the term of July 1, 2010 to June 30, 2024?
RECOMMENDATION:
Approve the ten-year agreement with the County of Orange (July 1, 2010 through
June 30, 2020) for the delivery of all controllable municipal solid wastes from the
City to the County landfill disposal system, thereby ensuring a long -temp, reliable
and cost competitive disposal source for the CiWs municipal solid waste.
DISCUSSION:
Background:
In 1997, the County and cities of Orange County entered into disposal
agreements for a fixed rate per -ion for the disposal of solid waste in the Countys
landfill disposal system. The term of the agreement with Newport Beach and all
Orange County cities will expire on June 30, 2010. Since late 2006, personnel
representing the County's Waste and Recycling Division and a Committee of the
Orange County City Manager's Association have worked to negotiate another
multi-year agreement to fulfill city waste disposal needs and provide for the
20-347
Orange County Waste Disposal Agreement
April 28, 2009
Page 2
financial stability of the County landfill disposal system. The Newport Beach City
Manager was a member of the City Managers' negotiation committee, since our
City is directly impacted the most as the only Orange County city which pays
landfill costs that the residents in all other cities are billed for.
Following the completion of the negotiations, which included an analysis of the
rate structure by a third -party financial consultant and legal review of the
agreement by several city attorneys, the final agreement was presented to the
County Board of Supervisors for consideration on March 24, 2009. The Board
approved the agreement.
Orange County enjoys a unique resource in its landfill system. Managed with
long-term capacity and environmental sensitivity as key objectives, the system
has provided the County with reliable sites to deposit approximately 4 million tons
of solid waste per year at competitive rates. While surrounding counties attempt
to find new disposal alternatives at great expense, Orange County has
developed long-term capacity at reasonable costs. As a result of the County
bankruptcy, the landfill system has been accepting "Imported" solid waste from
outside the County as a means to payoff its bankruptcy debt. Pursuant to this
agreement, impartation from outside the County will end June 30, 2016, when
the bankruptcy debt is retired, resulting in a landfill system with a projected
capacity of over 50 years.
For this agreement to take effect, it requires that the cities representing 85
percent of the County's population generating the total County waste to adopt the'
agreement within 120 days following the approval of the agreement by the
County Board of Supervisors. If the cities representing at least 85% of County
waste generation have signed agreements by June 23, 2009, the Director of
Orange County Waste and Recycling will execute the agreements. If cities
representing less than 85% have signed, the agreements will not be adopted and
County staff will return to the Board of Supervisors to present alternative rate
strategies. The Orange County City Managers Association unanimously
endorses this agreement as beneficial for both the County and all Orange County
cities.
Terms of A reement
The new agreement is substantially the same as the current waste disposal
agreements, including the County's commitment to provide solid waste disposal
services and County indemnification of City liability for closed landfill sites
through June 30, 2020. The primary difference and significant change in the new
agreement is the disposal rate.
The current disposal rate of $22.00 per ton disposed of in the landfill system has
been in effect since 1997 with no increase. Per the new agreement, this disposal
rate will increase to $29.95 on July 1, 2010, and then adjust annually in
20-348
Orange CovntRaste Disposal Agreement
April 28, 2009
Page 3
accordance with increases to the consumer price index (CPI). Even considering
the increase, this is a very competitive rate compared to landfills in neighboring
counties. For example, the largest Los Angeles County landfill, Puente Hills, is
scheduled to implement a rate of $37.62 effective July 1, 2010.
As Newport Beach's commitment towards this agreement, the City will agree to
deliver, or cause to deliver, all "controllable" solid waste to the County landfill
system. Controllable solid waste does not include hazardous waste or solid
waste which residents or businesses choose to haul to a landfill or other disposal
facility themselves. This is the same requirement that exists today under the
current agreement.
Manaaina Controllable Waste - Newport Beach Program
Commercial
The collection of commercial waste (restaurants, retail outlets, etc.) in the City is
accomplished through a Franchised Hauler program. Haulers may enter into a
franchise agreement with the City to compete with other private haulers for the
collection of commercial waste. The City does not control the .pricing that these
private companies charge their customers. The non-exclusive franchise system
is an open competitive program that allows the commercial customer to select
their service provider based on cost and service levels. As part of the franchise
contracts, the haulers are required to deliver their disposable waste to an Orange
County landfill, State certified transfer station, recycling facility, or materials
recovery facility.
The increase in County landfill fees may result in a rate -increase to the
commercial customers, which may lead to an increase to franchise fees paid to
the City. As part of the Franchise Agreement, the commercial hauler must pay
the City a franchise fee of 16% of hauler's gross receipts. However, given the
competitiveness of the private solid waste industry, any increase will probably be
minimal.
Residential
On June 10, 2008, the City Council approved a 10 -year agreement with CR&R
Inc. for the hauling, processing and disposal of residential solid waste that is
collected by City equipmentlpersonnel and delivered to the transfer station at the
City Yard. City refuse collection trucks do not dispose of materials at landfills,
and therefore, we do not directly pay for disposal cost to the County landfill
system. The materials collected are transferred by CR&R trucks to their
processing facility where a minimum of 40% by weight are removed for recycling.
The remaining 60% must be disposed of in a County landfill per the terms of the
agreement.
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Orange County iNaste Disposal Agreement
April 28, 2009
Page 4
City Attorney Review:
The City Attorney's office has reviewed this report and the attached agreement
Environmental Review:
The City Council's approval of this item does not require environmental review.
Public Notice:
The agenda item has been noticed according to the Brown Act (72 hours in
advance of meeting at which the City Council considers the item).
Financial information
According to the agreement with CR&R, they must divert 40% of the materials
collected from the Orange County landfill system. Therefore, the agreement
states that the City will pay 60% of the current landfill fee ($22.00), or $13.20 per
Ion shipped by CR&R from 'the City Yard. The City collects and transfers
approximately 3,100 tons per month 'of residential solid waste to the CR&R
transfer -trucks at the City Yard.
This agreement between the City and CR&R allows CR&R to request an
adjustment to the disposal fee with City Council approval. The contract states:
-...in the event the Aran a County Landfill increases disosal lees the Hauler
may a I to 4he C' . for an increase in - fhe Df osa! Fee char ed to the City.
Hauler and i agree that the'decisian to increase the D!s osal Fee cha ed fo
the r& shall be within the sole. discretion of the City and the City shall not be
QW -bated to increase the amount char d to the QLk."
The current contract with CR&R to ship, process, sort recyclables, and dispose of
City waste is approximately $1.4M per year_ ' If the City Council approves a
request from CR&R to increase their fee to 60% of the proposed County disposal
fee of $29.95 per ton, the contract would increase by approximately $170,000 per
year starting in July, 2010.
W*."( A
Omer Bludau Mark Harmo
City Manager General Services Director
Attachments: I. Resolution of the Board of Supervisors
It. Waste Disposal Agreement
20-350
E
RESOLUTION OF TBE BOARD OF SUPERVISORS OF
-ORANGE COUNTY, CALIFORNIA
March -Z4,2009
WTIEREAS, OC Waste & Recycling manages the County's throe active municipal solid
waste-landflUs, 21 former disposal sites and finer household
hazardous waft disposal centers;
and.
WHEREAS, among other Bugs, =the purpose of the California Integrated Waste
Management Act of 1989 (the "Actj is to reduce., recycle, abd rem solid waste generated in the
State to, the =Chnum extent feasible in an efficient and cost effetfive hunnes; and
WEERW, the Act provides that local'government agencies may determine the aspects
of solid waste handling which are oflocal concern, including, bin not limW to, frequency of
collwdqu, means of collection, transportadon, level of services, charges and fees, nature,
-location, and extent of providing solid waste handling services; and.
WIWAIE-AS, on AprH ,8,1997; this Board ofSupeMsors.appreved the forms of waste
disposal agrocnveats to ire entered into with Orange County cities, soft" districts and waft
Wers and established certain fees; -and
WHEREAS. such waste disVosW'agroerdents were effective. on July 1., 1997, and. are
schtMod to expim on June 10, 2010; and
WHEMS, currently 31 citiosJOur sanitary distrwts-(which indu& three cities) and 13
wage bauters are parties to waste disposal agrcernents with the Count),, and
WHEREAS; presented to this -Board and on Me with the Clerk of the Board are the
following revised fbzms.of waste dispose agreements:
a WASTE DISPOSAL AOREEMEqT'hetween the County of Orange and
individual Orange County citiesAnd sanitary districts (the -City/Switwy District
Roolution No. 0"36, Item No,22 page I of 5
Resokffion of the fterd of Supervisors ofthe testy of Orange approving the Fonns of.waste 1.1spoul
Agreements and EsUfthing the Contract Rate and Gate Fees
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Wake Disposal Aptment'7;
• WASTE DISPOSAL AGREEMENT between dw Co" of Change and certain
eligible Facility OpdrRtM (ft "Eligible Facgity Operators") of solid waste in the-
Comer ,of Ormw (the "Fadlity Operator Waft'Dispossl Agreement)-
WHMEAS,'the-public interest, beallb, and safety are benefitc.d by the approval of the
&hn of Waste Disposal Agreements and thc.md*pq oftbe fees provided for herein; and
WIMMAS, this Bomd of Supervisors is authorized to establisbfim for the collmdon,
handling, and disposal -of solid vw* =d
WHEREMo,pplicable law requires this Bond of Supmisors to held at least one open
-chd-public meeting, atwhichwal-orwiften prese"an cmUmd%,m part of areplafly
'W'hed 4 -mea tcg; and
WHEREAS, notice as required by law hasteen published in:a=Wspaper of general
WMBW�", this Board .of SuperVism b" qppdtt .'4 pulfiic. wring;.
NOW, THEREFOM BE IT MOLVED that tbis.Board.of SuWvism domhm-eby
fwd determine:
1. 'fids -Board of Supxdws (this &9=41 hereby imds and--detemim theS
-compliance with1he.CaUmnia Act (,CEQA) &r the Waste
Mposal Agrvements is satisfied by the fipflawitg previously certified
vnvfithmental docuiftenft:
• FuW EM $23, certified by Your Board .on Mach 1.0 1994 for the expansion
of the 01iWa A10ha Laudfifl.
Final-EIR 588, cert.ifted by your Board on AprR 17,1007, for the cqmsion of
20-352
Futal EIR 604, certified by your Board on August 15, 2006, for the mcpans on
,of -the Fmk R. Bowermen LandfilL
a Final EM 575, certified by your Board ou'Nove.mber 6, 2001 for the 201
Cmmal-Development Plea for the Prima DoAwdm Landfill.
2. This Board hereby finds and detemfmcs that the approval of the form of Waste
Disposal AVvements and execution by to Couiq will sm-m the public fi*mt.
health, &*ry -and welfhm by providing a more stable, predictable mW reliable
supply of muniCipd-solid waste and ft resulting service payrrmzit revenue tet the
Couary waft enterprise system, thmby mbling-the Couray to pl%4 manage,
operate, and fiamm improvernmts to the system on a mom pradent-wA sound
long term, bvOwmlike, basis consistent: with -its, obligations to the Staft and.the
holders of obligations secured by its waste disposal system
.3. This Board hereby -finds and deternfines that the Waste PisposW AgNmem will
further prmate the statutory goals of solid wme reduction, mycling, and ram
to the MwelMum extent fodble in an jelftiza and cM effective- manner.
4. 'Ae form of City Waft Diqwsal Agreement is. hemby -approved. The Director of
oc wa* a RecyctingGr des,1911= {the "Dlrecwe} js hereby auamized and
directed far, in the: nam -end on bdWfef tlw,.CIDUDty to execute the City Wage
Disposal Agmment with.Orange County'dfies approving such Agremqai
MidedhMover that such city approval and excoution 0mmf sball occur on or
before July 22,. 2009.
5. The form of SaWtary District Waste Disposal-AMment is hereby approved_
The Director is hemby.authorized and directedfor, inthe nme.and on behagot
the County to execute -the Sanitary Distnet Waste, Disposal Agument with
.Page 3 0r5
20-353
Omp Comm B$nitaty Disinc t appxmng such Agreement, provided however.
-that smh Smutsry District approval acrd erxec * m thereof shall occur on or before
duly 22, 2009.
6, '&e form of Facthty {operator Waste Disposal Apvement is hereby -approve&
Mw Director is hereby au&m=W and d.mctcd.for, in the name and or: beW of
*:County to O=ft ft F=bV Operator Awwntnt with EhDbie Fmbtyy
Odors approving such A
.VeemonL ULd jM however. that such Eligible
Fa4iity Mors appraval-and exteWon dawfshall occur on or before -July
22, 2009..
.,
Subject to pwavwt S and ft terms ofthe Waste Disposd Agreements, the
'Waste Disposal AVe=mt cmntract ratea$205. per On and the post# diWosal.
rW X$34.95 per twi,, exclusift oftWll9,00-por tori AD 939 surcharge
establishes pursuant to this Board's.Resolugon No. 06.070, are:hewhy.spMved.
Baih the.cm** rate and the Posted d4posQ rate will inmaw m ua lly can July
14 by the C4wwnm Price In (CPI)—Pill Urimn Commas, All Cities -- blmA.
an the ;formula c[anWnead:i n the Waste Disposal Affowmft All odw iandmi
rate previously approft bythis'Board rtataaui undmgead.
t3. The effectivonew of the W&* Disposal AgmcMeM approvedIn p gtaghs 4, 5
azul.: 6 and -the fees-aMraved fn pm"h Tare contingent upon. all cx glifigns to
tbie CbmmwmenT Date -(as defined in ft City .Waste DispoSal App ment)
`€eing Aid on or beforo July 22, 2009. In the evwA of the failwe-*f4aay cprAtion
to the Commm*e mej9Dafc, -the, Direr, -of. OC'Wate & Rsoyclixtg ihall retetrm
to this:9oard fet 6vction. >n no. a shall the i Disposal:Agareemettts or
Ow fws.%vw l win be;efechve 1ior to July I., 2010,
Page 4-et3
20-354
T
lI
0
.9,. The Director (or designeey:of OG Waste & Recycling -is hereby authorized acrd
dho*d, for and in the name and on behalf of the.County, to do.any and alf•things
and -take any and afl-actions and execute any and all cer4fiouies,.agn= ms and
WW.doc=enfs which he may de= necessary or advisable in order to
consz.mmate the lawful mmai.ion, delivery and'e meat oflbe��.Vsste
D sposal.Agre=cros and the: fees -approved in accordance withIhis Resolution.
VamI of $
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IU irmcgoing was pasW and 94opted by the-foll6wingwft of the Orange County Board of
Superviws6 co Mm
h.24,.2009P to wit
A%S- Supemsors:
WOES.- -sdPwvisw(*
EVCMED; SiTmimft
AMTAMD', SupuvkcKsX
STATIECWCALkOftNIA
coumy-oPORANGE
BILL CAWBELI, CHFU.9 NORBY, JANETNGUYEN
JQM X W. MOORLACK PAMCIA BATES
I.,VARLF,?W.4BLb0K- C-Jft -Ro
, *--ofthc' n-dQfOramV'County-,:Ciflforminher&y
cedify Ostt copy of'tbb docum"It.has been. deffvtred to thic Clairma.df be ligmA-And that
the above and foregoing -Resolution was d* and regularly adopted by the Orange County
-Board Qrsupo"bors.
IN WXJWM wF=mp I have heretmxet my hand and seaL.
,z
Clerk �itAc"Soar3
RMIUI[On NO; 09-036
ftcm-No: .30
DAMEMJ BLW4Q0&*f**Beard e&vM4m�
DapuW'
20-356
WASTE DISPOSAL AGREEMENT
Between
THE COUNTY OF ORANGE, CALIFORNIA
and
the
CITY OF NEWPORT BEACH
Dated , 2009
County Authorization Date:
March 24.2009
County Notice Address.
Director
OC Waste & Recycling
300 N. Flower Street, Suite 400
Santa Ana, CA 92703
Exwatkm coo
City Authorization Date.
City Notice Address
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND IIVTMRETATION
0
Palle
Section1.1 DEFINITIONS..................................................................................................................................2
Section 12INTERPRETATION.........................................................................................................................7
ARTICLE 11
REPRESENTATIONS AND WARRAN'T'IES
Section 2.1 REPRESENTATIONS AND WARRANTIES OF THE CITY........................................................5
Section 2.2 REPRESENTATIONS AND WARRANTIES OF THE COUNTY.................................................9
ARTICLE III
DELIVERY AND ACCEPTANCE OF WASTE AND PROVISION OF DISPOSAL SERVICE
Section 3.1
DELIVERY OF WASTE..................................................................................................................9
Section 3.2
PROVISION OF DISPOSAL SERVICES BY THE COUNTY.....................................................1 I
Section 3.3
COUNTY RIGHT TO REFUSE WASTE......................................................................................12
Section 3.4
UNINCORPORATED AREA ACCEPTABLE WASTE...............................................................13
Section 3.5
MISCELLANEOUS OPERATIONAL MATTERS.......................................................................14
Section 3.6
OTHER USERS OF THE DISPOSAL SYSTEM..........................................................................14
Section 3.7
COUNTY PROVISION OF WASTE DIVERSION SERVICES...................................................15
ARTICLE IV
CONTRACT RATE
Section 4.1
CHARGING AND SECURING PAYMENT OF CONTRACT RATE.........................................15
Section 4.2
CONTRACT RATE........................................................................................................................15
Section 4.3
RESPONSIBILITY FOR PAYMENT OF THE CONTRACT RATE...........................................21
Section 4.4
BILLING OF THE CONTRACT RATE........................................................................................21
Section 4.5
RESTRICTED RESERVES ....................... _................................................................................... 21
Section 4.6
AUDITED FINANCIAL STATEMENTS......................................................................................22
Section 4.7
ANNUAL UPDATE OF TEN-YEAR FINANCIAL PROJECTION .............................................22
ARTICLE V
BREACH, ENFORCEMENT AND TERNMATION
Section5.1 BREACH........................................................................................................................................23
Section 5.2 CITY CONVENIENCE TERMINATION.....................................................................................23
Section5.3 TERMINATION.............................................................................................................................23
Section5.4 NO WAIVERS................................................................................................................................24
Section 5.5 FORUM FOR DISPUTE RESOLUTION......................................................................................24
ARTICLE VI
TERM
Section 6.1 EFFECTIVE DATE AND TERM..................................................................................................24
Section 6.2 COMMENCEMENT DATE...........................................................................................................25
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ARTICLE VII
GENERAL PROVISIONS
Section 7.1
OPERATION AND MAINTENANCE OF THE DISPOSAL SYSTEM.......................................26
Section 7.2
UNCONTROLLABLE CIRCUMSTANCES GI~NER.ALLY........................................................26
Section7.3
INDEMNIFICATION.....................................................................................................................27
Section 7.4
RELATIONSHIP OF THE PARTIES............................................................................................27
Section7.5
LIMITED RECOURSE......................................................................................................... ....27
Section 7.5
PRE-EXISTING RIGHTS AND LIABILITIES.. ...........................................................................
27
Section 7.7
NO VESTED RIGHTS.................................................................._................:..............................28
Section 7.8
LIABILITY FOR COLLECTION, TRANSPORTATION AND PROCESSING ..........................28
Section 7.9
NO CONSEQUENTIAL OR PUNITIVE DAMAGES..............................»..................................28
Section7.10
AMENDMENTS............................................................................................................................28
Section 7.11
NOTICE OF LITIGATION............................................................................................................28
Section 7.12
FURTHER ASSURANCES...........................................................................................................28
Section 7.13
ASSIGNMENT OF AGREEMENT...............................................................................................28
Section 7.14
INTEREST ON OVERDUE OBLIGATIONS...............................................................................28
Section 7.15
BINDING EFFECT........................................................................................................................28
Section7.16
NOTICES........................................................................................................................................28
F5920N►71.ii
ESTIMATED ANNUAL TONNAGE
APPENDIX 2
CUMULATIVE TONNAGE TARGETS
APPENDDC3
CUMULATIVE CAPITAL COSTS
APPENDIX 4
FORM OF HAULER ACKNOWLEDGEMENT
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WASTE DISPOSAL AGREEMENT
THIS WASTE DISPOSAL AGREEMENT is made and dated as of the date indicated on the cover page
hereof between the County of Orange, a political subdivision of the State of California (the "County"), and the City
designated on the cover page of this Agreement, a general law or charter city and political subdivision of the State of
California (the "City'.
RECITALS
The County owns, manages and operates a sanitary landfill system for the disposal of municipal solid waste
generated by the cities and the unincorporated area within the County (the "Disposal System"). The Disposal
System includes three active landfills and four regional household hazardous waste collection centers.
The Disposal System is used for the disposal of municipal solid waste which is not reused, recycled or
otherwise diverted from landfill disposal, pursuant to the California Integrated Waste Management Act of 1989
(Division 30 of the California Public Resources Code) (the "Aco.
The City, in the exercise of its police power and its powers tinder the Act, has entered into a franchise or
other agreement with or issued permits or licenses to one or more private haulers for the collection and disposal of
municipal solid waste generated within the City.
A significant portion of municipal solid waste generated within the City historically has been and currently
is delivered by such hauler or haulers to the County for disposal in the Disposal System.
In 1997, the City and the County entered in a waste disposal agreement (the "Original WDA"), pursuant to
which the County agreed to provide disposal capacity for waste generated in the City, and the City agreed to deliver
or cause the delivery of waste generated in the City to the Disposal System, as more specifically set forth in, and
subject to the terms and conditions of the Original WDA.
The Original WDA, as amended, will expire by its terms on June 30, 2010, unless the City and the County
agree to renew the Original WDA.
The City and the County desire to enter into this agreement to extend, amend and restate the Original
WDA, on the tuns and conditions set forth herein. The County and City acknowledge that the Original WDA shall
retuain in full force and effect until the Commencement Date.
The City has determined that the execution of this Agreement by the City will serve the public health,
safety and welfare of the City by providing greater disposal rate stability, more predictable and reliable long -tam
disposal service, and the continuation of sound environmental management.
The County has determined that the execution by the County of this Agreement will serve the public health,
safety and welfare by providing a more stable, predictable and reliable supply of municipal solid waste and the
resulting service payment revenue to the Disposal System, thereby enabling the County to plan, manage, operate and
finance improvements to the Disposal System on a more prudent and sound long term, businesslike basis consistent
with its obligations to the State and the holders of obligations secured by its Disposal System.
Official action approving this Agreement and determining it to be in the public interest and authorizing its
execution and delivery was duly taken by the County on the County authorization date indicated on the cover page
hereof.
Official action approving this Agreement and determining it to be in the public interest and authorizing its
execution and delivery was duly taken by the City on the City authorization date indicated on the cover page hereof.
It is, therefore, agreed as follows:
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ARTICLE I
DEFINITIONS AND INTERPRETATION
Ll
SECTION l.1 DEFINITIONS. As used in this Agreement, the following terms shall have the meanings
set forth below.
"Acceptable Waste" means all garbage, refiise, rubbish and other materials and substances discarded or
rejected as being spent, useless, worthless or in excess to the owners at the time of such discard or rejection and
which are normally disposed of by or collected from residential (single family and multi -family commercial,
industrial, governmental and institutional establishments and which are acceptable at Class III landfills under
Applicable Law.
"Act" means the California Integrated Waste Management Act of 1989 (Division 30 of the California
Public Resources Code), as amended, supplemented, superseded and replaced from time to time.
"Agreement" means this Waste Disposal Agreement between the County and the City as the same may be
amended or modified from time to time in accordance herewith.
"Appendix" paeans an appendix to this -Agreement, as the same may be amended or modified from time to
time in accordance with the terms hereof
"Applicable Law" means the Act, the Orange County Code, CERCLA, RCRA, CEQA, any Legal
Entitlement and any federal or state rule, regulation, requirement, guideline, permit, action, determination or order of
any Governmental Body having jurisdiction, applicable from time to time to the siting, design, permitting,
acquisition, construction, equipping, financing, ownership, possession, operation or maintenance of the Disposal
System, the transfer,, handling, transportation and disposal of Acceptable Waste, Unacceptable Waste, or any other
transaction or matter contemplated hereby (including any of the foregoing which concern health, safety, fire,
environmental protection, mitigation monitoring plans and building codes).
"Board" means the California Integrated Waste Management Board.
"Capital Costs" means all costs of the Disposal System that are classified as capital costs for purposes of
the ' budget of the Department in accordance with procedures established by the County of Orange Auditor -
Controller in compliance with the California State Controller's Manual, including but not limited to all of the
categories of costs of the Disposal System reported as "Buildings and Improvements, and Infiastructure" (Object
Code 4200) or "Equipment" (Object Code 4000) in the County of Orange — Chart of Accounts, or any successor
accounting or reporting system utilized by the County.
"CEQA" means the California Environmental Quality Act, codified at Cal. Pub. Res. Code Section 21000
et seq. as amended or superseded, and the regulations promulgated thereunder.
"CERCLA" means the Comprehensive Environmental Response, Compensation and Liability Act,
42 U.S.C.A. Section 9601 et seq., as amended or superseded, and the regulations promulgated thereunder.
"Change in Law" means any of the following events or conditions which has a material and adverse effect
on the performance by the parties of their respective obligations under this Agreement (except for payment
obligations), or on the siting, design, permitting, acquisition, -construction, equipping, financing, ownership,
possession, operation or maintenance of the Disposal System or other matters to which Applicable Law applies:
(1) the enactment, adoption, promulgation, issuance, material modification or written change
in administrative or judicial interpretation on or after the Commencement Date of any Applicable Law (other than
Applicable Law enacted by the County);
(2) the order or judgment of any Governmental Body (other than the County), on or after the
Commencement Date, to the extent such order or judgment is not the result of will W or negligent action, error or
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omission or lack of reasonable diligence of the County or of the City, whichever is asserting the occurrence of a
Change in Law; provided, however, that the contesting in good faith or the failure in good faith to contest any such
order or judgment shall not constitute or be construed as such a willful or negligent action, error or omission or lack
of reasonable diligence; or
(3) the denial of an application for, delay in the review, issuance or renewal of, or
suspension, termination, interruption, imposition of a new of more stringent condition in connection with the
issuance, renewal or failure of issuance or renewal on or after the Commencement Date of any Legal Entitlement to
the extent that such denial, delay, suspension, termination, interruption, imposition or failure materially and
adversely interferes with the performance of this Agreement, if and to the extent that such denial, delay, suspension,
termination, interruption, imposition or failure is not the result of willful or negligent action, stet or omission or a
lack of reasonable diligence of the County or of the City, whichever is asserting the occurrence of a Change in Law;
provided, however that the contesting in good faith or the failure in good faith to contest any such denial, delay,
suspension, termination, interruption, imposition or failum shall not be construed as such a willful or negligent
action, error or omission or lack of reasonable diligeacm
A "Change in Law" shall include but not be limited to any new or revised requirements relating to
the fuading or provision of disposal services, including but not limited to any regulations for disposal operations or
activities associated with the remediation, closure, funding or monitoring of closed sites with respect to facilities
comprising the Disposal System, or facilities which the County previously utilized to provide waste disposal,
transfer, recycling, processing or other waste related activities.
"City" means, as applicable, the city or Sanitary District designated on the cover page of this Agreement
and party to this Agreement.
"City Acceptable Waste" means all Acceptable Waste which was originally discarded by the first generator
thereof within the geographical limits of the City, and Residue from the foregoing wherever produced, whether
within or outside the City (or Tonnage equivalencies of such Residues, as and to the extent provided in
subsection 3.1(C) hereof).
"Commencement Date" means the date on which the obligations of the parties hereto commenm
established as provided in Section 6.2(B) hereof.
"Contract Date" means the first date on which this Agreement has been executed by both parties hereto.
"Contract Rate" has the meaning specified in Section 4.2 hereof.
"Contract Year" means the fiscal year commencing on July 1 in any year and ending on June 30 of the
following year.
"Controllable Waste" means all City Acceptable Waste with respect to which the City has the legal or
contractual ability to determine the disposal location therefor and which is:
(1) Non -Recycled City Acceptable Waste;
(2) not generated from the operations of the Governmental Bodies which, under Applicable
Law, have the independent power to arrange for the disposal of the waste they generate; and
(3) collected and hauled by Franchise Haulers.
"County" means the County of Orange, a political subdivision of the State of California and party to this
Agreement -
"County Plan" means the integrated waste management plan of the County approved by the Board pursuant
to the Act as in effect from time to time.
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"County Acceptable Waste" means Acceptable Waste generated in the County.
"County OC Waste & Recycling Enterprise Fund" means the waste management enterprise fund
established and managed by the County pursuant to Section 25261 of the Government Code separate from its other
funds and accounts for receipts and disbursements in connection with the Disposal System.
"County -wide Recycling Services" has the meaning set forth in subsection 3.7(A) hereof.
"Cumulative Tonnage Target" for any given Contract Year means the amount specified in Appendix 2
hereto with respect to such Contract Year.
"Department" means OC Waste & Recycling, and any agency, department or other Governmental Body
which succeeds to the duties and powers thereof.
"Disposal Agreements" means each of the waste disposal agreements entered into between the County and
any city within the County, Sanitary District or operator of any Transfer Station located in the County in accordance
herewith-
"Disposal
erewith"Disposal Services" means the solid waste disposal services to be provided by the County pursuant to the
Service Covenant and otherwise hereunder.
"Disposal System" means the Orange County Waste Disposal System which includes solid waste disposal
operations at three active landfills (Olinda Alpha, Frank R Bowerman and Prima Deshecha); four regional
Household Hazardous Waste Collection Centers; as well as services, such as monitoring and other activities, at
closed refuse stations formerly operated by the County, as appropriate under Applicable Law.
"Environmental Fund" means the fund or funds held by the County to pay unanticipated costs of
environmental mitigation, remediation or liability.
"Franchise Hauler" means any hauler or collector who provides Acceptable Waste collection services
within the City pursuant to, or under authority granted by, a permit, contract, franchise or other agreement with the
City. The term Franchise Hauler includes the City itself if Acceptable Waste collection and transportation services
are provided directly by City operated municipal collection service.
"Governmental Body" means any federal, State, county, city or regional legislative, executive, judicial or
other governmental hoard, agency, authority, commission, administration, court or other body, or any officer thereof
acting within the scope of his or her authority.
"Hazardous Substance" has the meaning given such term in CERCLA, the Carpenter -Presley -Tanner
Hazardous Substance Account Act (California Health and Safety Code Section 25300 et seq.), and Titles 22 and 26
of the California Code of Regulations and other regulations promulgated thereunder.
"Hazardous Waste" means (a) any waste which by reason of its quality, concentration, composition or
physical, chemical or infectious characteristics may do either of the following: cause, or significantly contribute to,
an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness, or pose a
substantial threat or potential hazard to human health or the environment, or any waste which is defined or regulated
as a hazardous waste, toxic substance, hazardous chemical substance or mixture, or asbestos under Applicable Law,
as amended from time to time including, but not limited to: (1) the Resource Conservation and Recovery Act and
the regulations contained in 40 CFR Parts 260-281; (2) the Toxic Substances Control Act (15 U.S.C. Sections 2601
et seq.) and the regulations contained in 40 CFR Parts 761-766; (3) the California Health and Safety Code,
Section 251I7 (West 1992 & Supp. 1996}; (4) the California Public Resources Code, Section 40141 (West 1996);
and (5) future additional or substitute Applicable Law pertaining to the identification, treatment, storage or disposal
of toxic substances or hazardous wastes; or (b) radioactive materials which are source, special nuclear or by-product
material as defined by the Atomic Energy Act of 1954 (42 U.S.C. Section 2011 et seq.) and the regulations
contained in 10 CFR Part 40.
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"Imported Acceptable Waste" means Acceptable Waste that is generated outside of the geographical
boundaries of the County and delivered to the Disposal System,
"Independent Haulers" means those waste collectionlhauler companies primarily engaged as a principal
business in the collection and transportation of municipal solid waste generated in the County of Orange which are
not obligated to deliver County Acceptable Waste to the Disposal System pursuant to a fi=cbise, contract, permit or
other authorization with a city in the County.
"Initial Term" has the meaning specified in Section 6.1(A) hereof.
"Legal Entitlement" means all permits, licenses, approvals„ authorizations, oonsents and entitlements of
whatever kind and however described which are required wider Applicable Law to be obtained or maintained by any
person with respect to the Disposal System or the performance of any obligation under this Agreement or the
matters covered hereby.
"Legal Proceeding" means every action, suit, litigation, arbitration, administrative proceeding, and other
legal or equitable proceeding having a bearing upon this Agreement,
"Loss -and -Expense" means any and all loss, liability, obligation, damage, delay, penalty, judgment,
deposit, cost, expense, claim, demand, charge, tax, or expense, including all fees and costs.
"Net Import Revenues" has the meaning ascribed thereto in Section 3.6(E).
"Non -Recycled City Acceptable Waste" means all City Acceptable Waste other than Recycled City
Acceptable Waste.
"Overdue Rate" means the maximum rate of interest permitted by the laws of the State, if applicable, or the
prime rate established from time to time by the Bank of America, N.A. or its successors and assigns, plus 2°%,
whicbever is lower.
"Participating City" means any city or Sanitary District executing a Disposal Agreement in accordance
with Section 3.6(A) hereof and tweeting all requisite corrditions to the Commencement Date thereof.
`Tian of Adjustment" means the County's Modified Second Amended Plan of Adjustment, confirmed by
the United States Bankruptcy Court Central District of California in that Conformed Order Confirming Modified
Second Amended Plan of Adjustment, fled May 17, 1946.
"Posted Disposal Rate" means the per ton tipping fee charged by the County for the disposal of solid waste
at the Disposal System by parties which are not entitled to disposal service at the Contract Rate pursuant to this
Agreement -
"Prohibited Medical Waste" means any medical or infectious waste prohibited or restricted under
Applicable Law from being received by or disposed at the Disposal System.
"Qualified Household Hazardous Waste" means waste materials determined by the Board, the Department
of Health Services, the State Water Resources Control Board, or the Air Resources Board to be:
(1) Of a nature that they must be listed as hazardous in State statutes and regulations;
(2) Toniclignitabldeorrosive reactive, and
(3) Carcinogenic!mutagenic/teratogenic;
which are discarded from households as opposed to businesses. Qualified Household Hazardous Waste shall not
include Unacceptable Waste.
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"Recycled City Acceptable Waste" means any otherwise Controllable Waste which is separated from
Acceptable Waste by the generator thereof or by processing and which is "recycled" within the meaning of
Section 40180 of the Public Resources Code.
"Renewal Term" has the meaning specified in Subsection 6.1(B) hereof.
"Residue" means any material remaining from the prooessing, by any means and to any extent, of City
Acceptable Waste or Recycled City Acceptable Waste; provided, however, that Residue shall not include minimal
amounts of material remaining after such processing (which minimal amounts shall in no event exceed 10% of the
amount of such City Acceptable Waste or Recycled City Acceptable Waste prior to processing).
"Resource Conservation and Recovery Act" or "RCRA" means the Resource Conservation and Recovery
Act, 42 U.S.C-A. Section 6401 et seq., as amended and superseded.
"Restricted Reserves" has the meaning specified in Section 4.5.
"Sanitary Districts" means the sanitary districts in the County formed pursuant to the Sanitary District Act
of 1923, codified at Cal. Ann. Health & Safety Code Section 6400 et seg., as amended, supplemented, superseded
and replaced from time to time.
"Self -Hauled Waste" means City Acceptable Waste collected and hauled by Self -Haulers.
"Self -Hauler" means any person not engaged commercially in waste haulage who collects and hauls
Acceptable Waste generated from residential or business activities conducted by such person.
"Service Coordinator" means the service coordinator for either party designated pursuant to
subsection 3.5(C) hereof.
"Service Covenant" means the covenants and agreements of the County set fortb in Sections 3.2 and 33
hereof.
"Source -Separated Household Hazardous Waste" means Qualified Household Hazardous Waste which has
been segregated from Acceptable Waste originating or generated within the geographical jurisdiction of the City at
the source or location of generation.
"Source -Separated Household Hazardous Waste Disposal System" means the collection centers, facilities,
contracts and other arrangements owned or administered by the County for the receipt, handling and disposal of
Source -Separated Household Hazardous Waste.
"State" means the State of California.
`term" shall mean the Term of this Agreement
` fon" means a "short ton" of 2,000 pounds.
-transfer Station" means any materials recovery facility, composting facility, intermediate processing
facility, recycling center, transfer station or other waste handling or management facility to which solid waste
collected for the City is delivered for processing before disposal in the Disposal System
"Unacceptable Waste" means Hazardous Waste; Hazardous Substances; Prohibited Medical Waste;
Qualified Household Hazardous Waste separated from Acceptable Waste; explosives, ordnance, highly flammable
substances, and noxious mataials and lead -acid batteries (except if delivered in minimal quantities); drums and
closed oontainers; liquid waste, oil, human wastes; machinery and equipment from commercial or industrial sources,
such as hardened gears, shafts, motor vehicles or major components thereof, agricultural equipment, trailers, marine
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vessels and steel cable; hot loads; and any waste which the Disposal System is prohibited from receiving under
Applicable Law.
"Uncontrollable Circumstance" means any act, event or condition affecting the Disposal System, the
County, the City, or any of their Franchise Haulers, contractors or suppliers to the extent that it materially and
adversely affects the ability of either party to perform any obligation under the Agreement (except for payment
obligations), if such act, event or condition is beyond the reasonable control of and is not also the result of the
willful or negligent act, error or omission'or failure to exercise reasonable diligence on the part of the party relying
thereon as justification for not performing an obligation or complying with any condition required of such party
under the Agreement; provided, however, that the contesting in good faith or the failure in good faith to contest such
action or inaction shall not be construed as willful or negligent action ora lack of reasonable diligence of either
party. Examples of Uncontrollable Circumstances are:
(1) an act of God, landslide, lightning, earthquake, fire, explosion, flood, sabotage or similar
occurrence, acts of a public enemy, extortion, war, blockade or insurrection, riot or civil disturbance; and
(2) a Change in Law.
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"Unincorporated Area" means those portions -of the County which are not contained within the
jurisdictional boundaries of incorporated cities.
"Unincorporated Area Acceptable Waste" means Acceptable Waste originating from or generated within
the Unincorporated Area.
"Unrestricted Reserves" means cash and other reserves of the Disposal System which are not Restricted
Reserves.
"Waste Disposal Covenant" means the covenants and agreements of the City set forth in Section 3.1 hereof.
SECTION 1.2 UMMLLTATION: in this Agreement, unless the context otherwise requires:
(A) References Here . Ibc terms "hereby", "hereof',' herein", "hereunder" and any similar
terms refer to this Agreement, and the term "hereafter" means after, and the term "heretofore" means before, the
Contract Date.
(B) Gender and Plurality. Words of the masculine gender mean and include correlative
words of the feminine and neuter genders and words importing the singular number mean and include the plural
number and vice versa.
(C) P Words importing persons include firms, companies, associations, general
partnerships, limited partnerships, trusts, business trusts, corporations and other legal entities, including public
bodies, as well as individuals.
(D) HmEma. The table of contents and any headings preoeding the text of the Articles,
Sections and subsections of this Agreement shall be solely for convenience of reference and shall not constitute a
part of this Agreement, nor shall they affect its meaning, construction or effect
(E) No Third Party Beaefidaries. Nothing in this Agreement is intended to confer on haulers
or any other person other than the parties hereto and their respective permitted successors and assigns hesermder any
rights or remedies under or by reason of this Agreement
(F) watts This Agreement may be executed in any number of original counterparts.
All such counterparts shall constitute but one and the same Agreement
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(G) Applicable Law. This Agreement shall be governed by and construed in accordance with
the Applicable Laws of the State of California.
(H) Severability. If any clause, provision, subsection, Section or Article of this Agreement
shall be ruled invalid by any court of jurisdiction; then the parties shall: (1) promptly meet and negotiate a substitute
for such clause, provision, subsection, Section or Article which shall, to the greatest extent legally permissible,
effect the intent of the parties therein; (2) if necessary or desirable to agcomplish item (1) above, apply to the court
having declared such invalidity for a judicial construction of the invalidated portion of this Agreement; and
(3) negotiate such changes in, substitutions for or additions to the remaining provisions of this Agreement as may be
necessary in addition to and in conjunction with items (1) and (2) above to effect the intent of the parties in the
invalid provision. The invalidity of such clause, provision, subsection, Section or Article shall not affect any of the
remaining provisions hereof, and this Agreement shall be construed and enforced as if such invalid portion did not
exist, unless such invalidity frustrates the underlying primary purpose of the Agreement.
(I) I tgmatiorr:JPresesvation of Certain Ajuoma nts. This Agreement contains the entire
agreement between the parties with respect to the transactions ' contemplated hereby. This Agreement shall
completely and fully supersede all prior understandings and agreements between the Parties with respect to such
transactions; provided, however, that this Agreement shall not supersede the following agreements:
1) MOU, dated March 10, 1992, between the City of Brea and the County of
Orange regarding the Olinda Alpha Landfill as amended on April 6,1993 and November 29,1994;
2) MOU, dated May 11, 1995, between the City of Brea and the County of Orange
regarding importation of out -of -County waste to the Olinda Alpha Landfill;
3) Settlement Agreement, dated August 1, 1984, between the City of Irvine and the
County of Orange regarding the Bee Canyon Landfill (currently called Frank R. Bowerman Landfill);
4) MOU, dated May 16, 1995, between the City of Irvine and the County of
Orange regarding impartation of out -of -County waste to the Frank IL Bowerman Landfill;
5) MOU, dated September 12, 1995, and amended November 21, 1995, between
the City of San Juan Capistrano and the County of Orange regarding importation of out -of -County waste to the
Prima Deshecha Landfill;
6) MOU, dated July 1, 1997, between the City of San Clemente[, the Orange
County Flood Control District] and the County of Orange regarding the Prima Deshecha Landfill; and
7) Cooperative Agreement, dated August 15, 2006, between the County and the
City of Irvine.
(J) Recitals. The recitals to this Agreement are not intended to bind the parties hereto. In
the event of a conflict between the recitals and the operative provisions of this Agreement, the operative provisions
shall prevail. The recitals shall not be used to interpret the provisions of the Agreement.
ARTICLE 11
REPRESENTATIONS AND WARRANTIES
SECTION 2.1 REPRESENTATIONS AND WARRANTIES OF THE CITY. The City represents and
warrants that:
(A) Existence. The City is a general law or charter city validly existing under the
Constitution and laws of the State.
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(B) Due Authoriz�Aon. The City has duly authorized the execution and delivery of this
Agreement, and this Agreement has been duly executed and delivered by the City.
SECTION 2.2 flEMSENTATIONS AND WARRANTIES OF THE COUNTy The County
represents and warrants that:
(A) Existcnce. The County is a political subdivision of the State of California validly
existing ander the Constitution and laws of the State.
(B) Due Authorization. The County has duly authorized the execution and delivery of this
Agreement, and this Agreement has been duly executed and delivered by the County.
ARTICLE III
DELIVERY AND ACCEPTANCE OF WASTE
AND PROVISION OF DISPOSAL SERVICE
SECTION 3.1 DELIVERY OF WASTE.
(A) Waste DiEgsal Covenant Subject to the occurrence of the Commencement Date and
throughout the Term of this Agreement, the City shall exercise all legal and contractual power and authority which it
may possess from time to time to deliver or cause the delivery of all Controllable Waste to the Disposal System in
accordance herewith.
(B) Recycled CityA,pcentable Waste. The parties hereto acknowledge the responsibility of
the City to meet the recycling and landfill diversion goals contained in the Act. Nothing in this Agreement is
intended or shall be interpreted to prohibit or impair the ability of the City to meet such responsibilities, or to restrict
the right of the residents, businesses or organizations in the City to practise source separation, recycling, composting
or'other materials recovery activities, or to restrict the right of the City to conduct, sponsor, encourage or require
such activities in any form. No reduction in the amount of Controllable Waste generated in the City and delivered to
the Disposal- System by or on behalf of the City which may result from any such source separation or recycling
program shall cause the City any liability hereunder (other than potential adjustment to the Contract Rate to the
extent provided in Article TV hereof) and shall not constitute a breach of this Agreement.
(C) Waste Delivered to Transfer 5lation. All Residue from any processing of Controllable
Waste by materials recovery, composting, recycling or other means, wherever performed, shall constitute
Controllable Waste and be subject to the Waste Disposal Covenant. Where City Acceptable Waste is processed at a
facility which concurrently processes other Acceptable Waste in a manner which produces commingled residue
which cannot be traced to a geographic source, generic residues from such facility in Tonnage equal to the residues
that would have been produced had City Acceptable Waste only been processed at the facility shall constitute
Controllable Waste and be subject to the Waste Disposal Covenant. Any City Acceptable Waste or material derived
or segregated therefrom which is held in storage and asserted by the possessor thereof to constitute Recycled City
Acceptable Waste awaiting sale or distribution to the secondary materials markets shall constitute Controllable
Waste if, when and to the extent that the storage or diversion thereof can be reasonably deemed to constitute an
evasion of the Waste Disposal Covenant rather than generally recognized, accepted and prevailing practice in the
Southern California materials recovery and recycling industry conducted in accordance with Applicable Law. In
order for the owner and/or operator of a transfer station to be, entitled to deliver Acceptable Waste from a
Participating City to the Disposal System for the Contract Rate as provided in Article IV, such owner and/or
operator must execute a direct agreement with the County, acknowledging and agreeing to comply with the
obligation of the Participating City to cause the delivery of all Controllable Waste to the Disposal System pursuant
to this Agreement In addition, the County shall be authorized to implement procedures to determine if Acceptable
Waste delivered by the owners or operators of Transfer Stations is entitled to utilize the Disposal System for the
Contract Rate. Such. procedures may include requiring Transfer Stations to certify, under penalty of perjury, the
source of any such Acceptable Waste. If necessary, the County may require that, in order to qualify for use of the
Disposal System for the Contract Rate, Transfer Stations must deliver Controllable Waste in loads containing only
Controllable Waste, and not commingled with Acceptable Waste from entities which are not Participating Cities or
Participating Independent Haulers.
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(D) Power to Obligate Waste Disposal and Comply with this Agreement. On or before the
Commencement Date, (i) any City fianchise, contract, lease, or other agreement which is lawfully in effect relating
to or affecting Controllable Waste sball provide, or shall have been amended to provide, that the City shall have the
right without material restriction on and after the Commencement Date to direct the delivery of all Controllable
Waste to a disposal location selected by the City (whether or not such Controllable Waste is delivered to a transfer
station as an intermediate step prior to landfill disposal) and otherwise to comply with its obligations under this
Agreement with respect to Controllable Waste and Franchise Haulers, and (ii) the City shall designate the Disposal
System as the disposal location pursuant to such franchise, contract, lease or other agreement. On and after the
Commencement Date and throughout the Term of this Agreement the City (a) shall not enter into any franchise,
contract, lease, agreement or obligation, issue any permit, license or approval, or adopt any ordinance, resolution or
law which is materially inconsistent with the requirements of the Waste Disposal Covenant, and (b) shall maintain
non-exclusive or exclusive franchises or other contractual arrangements over any City Acceptable Waste which, as
of the Contract Date, is subject to non-exclusive or exclusive franchise or other contractual arrangements. The City
agrees that the County shall be a third party beneficiary of the obligation of Franchise Haulers to deliver
Controllable Waste to the Disposal System, and may directly enforce such obligation through any legal means
available. The City shall notify in writing each Franchise Hauler of the County's third party beneficiary rights.
(E) Waste Flow Enforcement. (1) The City, in cooperation with the Department, shall
establish, implement, carry out and enforce a waste flow enforcement program which is sufficient to assure the
delivery of all Controllable Waste to the Disposal System pursuant to and in accordance with the Waste Disposal
Covenant for disposal at the times and in the manner provided herein. The waste flow enforcement program shall
consist of amending City fianchises, permits or authorizations with all Franchise Haulers, to the extent required by
this Section and to the extent allowed by law, and shall include in addition, to the extent necessary and appropriate
in lire circumstances to assure compliance with the Waste Disposal Covenant, but shall not be limited to;
(i) licensing or permitting Franchise Haulers, upon the condition of compliance with the Waste Disposal Covenant,
(ii) providing for and taking appropriate enforcement action under any such franchise, license, or permit, such as but
not limited to the suspension, revocation and termination of collection rights and privileges, the imposition of fines
or collection of damages, and the exercise of injunctive relief against non -complying Franchise Haulers and
(iii) causing any Transfer Station to which Controllable Waste is delivered for processing to deliver certification,
under the penalty of perjury, of the amounts of Controllable Waste received and Residue remaining from processing
at such Transfer Station.
(2) The City acknowledges and agrees that in the event of a breach of the Waste Disposal Covenant by the
City, the City shall pay the County an amount equal to the amount that the City would have been required to pay to
the County had the Waste Disposal Covenant not been breached, whirr shall be calculated by (x) subtracting the
number of tons actually delivered during the month(s) of the breach from the number of tons that were delivered
during the same months) closest in time when there was no such breach, ever if such month(s) closest in time was
prior to the Tenn, and (y) multiplying such amount by the Contract Rate in effect at the time of such breach (or any
higher rate with respect to which the County has provided notice pursuant to Section 4.2). In the event that the
County terminates the Waste Disposal Agreement as a result of such breach, the damages due as a result of such
termination shall be equal to (aa) the average monthly deliveries by the City for the twelve months prior to the
commencement of the breach multiplied by (bb) the Contract Rate in effect at the time of such breach (or any higher
rate with respect to which the County has provided notice pursuant to Section 4.2), multiplied by (cc) the number of
months that would have remained in the Term of the Agreement had the termination not occurred. The parties
recognize that if the City fails to meet its obligations hereunder, the County will suffer damages and that it is and
will be impracticable and extremely difficult to ascertain and determine the exact amount of such damages.
Therefore, the parties agree that the damages specified above represent a reasonable estimate of the amount of such
damages, considering all of the circumstances existing of the date hereto, including the relationship of the sums to
the range of harm to the County that reasonably could be anticipated and anticipation that proof of actual damages
would be costly or inconvenient. In signing this Agreement, -each party specifically confirms the accuracy of the
statements made above and the fact that each party had ample opportunity to consult with legal counsel and obtain
an explanation of this liquidated damage provision at the time that this Agreement was made.
(F) Meal ChallenM to Franchise System The City shall use its best efforts to preserve,
protect and defend its right to exercise and comply with the Waste Disposal Covenant against any challenge thereto,
legal or otherwise (including any lawsuits against the City or the County, whether as plaintiff or defendant), by a
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Franchise Hauler or any other person, based upon breach of contract, violation of law or any other legal theory. The
City shall bear the cost and expense of any such Legal Proceeding or other challenge. In the event any such Legal
Proceeding relating to the Waste Disposal Covenant or the City's exercise thereof establishes in a final
determination that such covenant or exercise thereof is void, unlawful or unenforceable, or if any Franchise Hauler
fails to deliver Controllable Waste to the Disposal System in breach of its franchise with the City on the grounds that
a judicial determination made by any court or other Applicable Law has rendered its obligation to deliver
Controllable Waste to the Disposal System void, unlawful or unenforceable on any legal grounds, with the result
that actual waste deliveries to the Disposal System fall below the Cumulative Tonnage Targets, the County shall be
entitled to avail itself of the remedies described in Section 4.2(B) hereof.
(G) Franchise_ Haulers. The City shall compile and provide the Department with the
following information concerning all Franchise Haulers: name, address and phone number; identification number,
area of collection and transportation; and fianchise and permit terms.
(H) Waste Information Svstem The City shall cooperate with the Department in collecting
information and otherwise monitoring Franchise Haulers in order to assure compliance with this Agreement. Such
information may include, to the extent practicable, data pertaining to Controllable Waste collected, transported,
storroared, processed sed o Franchise nd disposed of, Recycled
cy led CityAcceptableWaste collected, transported, stored, processed and
disposed of; se, permit or license terms, collection areas, transportation
routes and compliance with Applicable Law; and all other information which may reasonably be requires by the
Department in connection with this Agreement. The City agrees to include in any remised franchise, contract, license
or permit or other authorization granted to Franchise Haulers an obligation of the Franchise Hauler to provide to the
County. information relating to the Controllable Waste collected by such Franchise Hauler, including origins from
which such Controllable Waste was collected, tonnage by type of load (residential, commercial, roll -off box),
customer service levels, tonnage delivered by transfer station or material recovery €anility utilized, and other related
information.
(I) Cily Ac Affwaiiux The City agrees to carry out and fulfill its
responsibilities under this Agreement and Applicable Law so as to permit full and timely compliance by the County
with.its covenants and agreements with the State. In particular, the City agrees not to conduct, authorize or permit
any disposal services for Controllable Waste to be provided in competition with the Disposal Services provided by
the County•herezmder, and not to take or omit to take any action with respect to Controllable Waste or its collection,
transportation, transfer, storage, treatment or disposal that may materially and adversely affect the County's ability
to achieve such timely compliance. Notwithstanding the foregoing, the City shall not be required to deny any permit
or license or refuse to grant any approval while exercising its police powers.
(n No &gbt of Waste Substitution. Nothing in this Agreement shall authorize or entitle the
City to deliver or cause. the delivery to the Disposal System of Acceptable Waste originating from or generated
outside the jurisdiction of the City, nor obligate the County to receive or dispose of any such Acceptable Waste.
The City shall not assign in whole or in part its right to deliver or cause to be delivered Controllable Waste to the
County hereamder, and shall not permit any Acceptable Waste originating from or generated outside the jurisdiction
of the City to be substituted for Controllable Waste for any purpose hereunder.
(IC) Annexations anRcshucturiag It is the intention of the parties that this Agreement and
the obligations and rights of the City hereunder, including particularly the Waste Disposal Covenant and the
Contract Rate, shall, to the extent permitted by Applicable Law, extend to any territory annexed by the City (or any
territory with respect to which the City assumes, after March 30, 2008, solid waste management responsibility from
a Sanitary District or other public entity) and shall bind any successor or restructured Governmental Body which
shall assume or succeed to the rights of the City under Applicable Law.
SECTION 3.2 MMSION OF DISPOSAL SERVICES BY THE COUNfY.
(A) Service v rant. Commencing on the Commencement Date, the County shall provide
or cause the provision of the service of (1) receiving and disposing of all Controllable Waste at the Disposal System
(or such other facilities, including transfer stations, as the County may determine to use), (2) disposing m
accordance with subsection 3.2(C) hereof of Controllable Waste whicb, at any time and for any reason, is in excess
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of the disposal capacity of the Disposal System, and (3) in accordance with subsection 3.3(C) hereof; disposing of
Unacceptable Waste inadvertently accepted at the Disposal System. The County, to the maximum extent permitted
under Applicable Law, shall use its best efforts to keep the Olinda Alpha, Prima Deshecha and Frank R. Bowerman
Landfills open for the receipt of waste for disposal or transfer of Controllable Waste pursuant to this Agreement.
The County shall do and perform all acts and things which may be necessary or desirable in connection with its
covenants in this subsection, including without limitation all plannin& development, administration,
implementation, construction, operation, maintenance, management, financing and contract work related thereto or
undertaken in connection therewith. The County shall exercise all reasonable efforts to minimize the costs incurred
in complying with the Service Covenant consistent with its responsibilities hereunder and under this Agreement,
Applicable Law and prudent solid waste management practice and environmental considerations.
(B) Particular Facilities. The Department and the City shall consult and cooperate in
determining whether and to what extant from time to time other landfills other than that primarily used by the City
shall be utilized to receive Controllable Waste. The Department shall immediately advise the City by telephone of
any situation, event or circumstance which results in the partial or complete inability of the County to receive
Controllable Waste at any particular landfill within the Disposal System, its effect on the County's ability to perform
its obligations hereunder, and the County's best estimate of the probable duration. The Department shall conium
such advice in writing within 24 hours of the occurrence of any such inability. The County shall use its best efforts
to resume normal operation of the landfill primarily used by the City as soon as possible. In the event of a
temporary material increase in average daily deliveries of Controllable Waste firm the City which the County
reasonably believes could result in the permitted daily disposal capacity limit to be exceeded with respect to a
particular landfill within the Disposal System, the County shall have the right to redirect the increased Controllable
Waste to another landfill within the. Disposal System for the duration of the increase in average daily deliveries;
provided, however, that in such circumstances the County shall utilize reasonable efforts to fust redirect waste
which is not Controllable Waste.
(C) Compliance yah Service Covenant Not Excused for any Reason. Commencing on the
Commencement Date, the obligations of the County to duly observe and comply with the Service Covenant shall
apply continuously and without interruption for the Term of this Agreement. In the event that any Change in Law or
other Uncontrollable Circumstance impairs or precludes.compliance with the Service Covenant by the means or
methods then being employed by the County, the County shall implement alternative or substitute means and
methods to enable it to satisfy the terms and conditions of the Service Covenant in the event that a Change in Law
precludes the County from complying with such. covenants with the means or methods then being employed and
from utilizing any alternate or substitute means or methods of compliance, the County shall continuously use all
reasonable efforts to effectuate executive, legislative or judicial change in or relief from the applicability of such law
so as to enable the County lawfully to resume compliance with such covenants as soon as possible following the
Change in Law.
SECTION 3.3 COUNTY RIGHT TO REFUSE WASTE.
(A) li,Wt of Refuel. Notwithstanding any other provision hereof, the County may refuse
delivery of:
(1) Hazardous Waste;
(2) Controllable Waste delivered at horns other than those provided in Section 3.5
hereof;
(3) Waste that does not constitute Acceptable Waste;
(4) Waste that is delivered by any party which has not executed a Waste Disposal
Agreement; and
(5) Controllable Waste consisting primarily of construction and demolition debris or
inerts which may cause a particular facility's daily tonnage linnit to be exceeded
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(B) Identification gMiaacceatable Waste. The Department shall have the right (but not the
duty or the obligation) to inspect the vehicles of all Franchise Haulers delivering material to the Disposal System,
and may require that the Franchise Hauler remove any Unacceptable Waste from such vehicle before it is unloaded.
If the Department determines that it is impractical to separate Controllable Waste from Unacceptable Waste in any
vehicle, or if the Franchise Hauler delivering such waste is unwilling to make such separation, or if any vehicle is
carrying waste which may spill or leak, then the Department may reject the entire vehicle, and the City shall
forthwith remove or cause the removal of the entire delivery from the Disposal System. The Department may take
all reasonable measures to prevent waste from being blown or scattered before and during unloading. The City shall
cause the Franchise Haulers to observe and comply with Applicable Law, the operating rules and regulations of the
Department, and the provisions of this Agreement prohibiting the delivery of Unacceptable Waste to the Disposal
System.
(C) Hazardous Waste and Hazardous Substances The parties acknowledge that the Disposal
System has not been designed or permitted, and is not intended to be used in any manner or to any extant, for the
handling, trancpartation, storage or disposal of Hazardous Waste or Hazardous Substances. Neither the County nor
the City shall countepartce or knowingly permit the delivery of Hazardous Waste or Hazardous Substances to the
Disposal System.
(D) Disposal of Uma2gMgb1e Waste and Hazardous Waste If Unacceptable Waste or
Hazardous Waste is discovered in a vehicle at any landfill within the Disposal System, the driver of the vehicle will
not be permitted to discharge the load. If a vehicle is observed unloading Unacceptable Waste or Hazardous Waste
in the tipping area of a landfill within the Disposal System Department personnel will use reasonable efforts to
assure that such material has been characterized, properly secured and its disposition resolved. The return or
reloading onto the delivery vehicle of any Hazardous Waste, Prohibited Medical Waste or other waste requiring
handling or transportation shall be conducted in accordance with Applicable Law. Whenever Hazardous Waste is
detected at any landfill within the Disposal System, the Department shad take immediate action m accordance with
Applicable Law.
(E) Sotrrco-Separated Ho Id nus Waste. The Caunty shall maintain, as part of the
Disposal System, a Source -Separated Household Hazardous Waste Disposal System for the disposal of Source -
Separated Household Hazardous Waste. The disposal service provided by such system shall constitute part of the
Disposal Services, -and shall he available to Participating Cities as part of the Contract Rate. The County may
impose additional fees and charges for services relating to Source -Separated Household Hazardous Waste with
respect to cities which are not parties to a Disposal Agreement. The County may provide for the expansion,
contraction or modification of the Source -Separated Household Hazardous Waste Disposal System and its services
to the extent neeessary,to ensure the Disposal System's viability, provided, however, if the County chooses to
reduce services, the County shall nonetheless continue to expend funds for the Source -Separated Household
Hazardous Waste Disposal System each year during the term of this Agreement in an amount at least equal to the
amount of fiords expended for the Source -Separated Household Hazardous Waste Disposal System during fiscal
year 2006-07 as adjusted by changes in the Producer Price Index.
SECTION 3A IMCQUMAM AREA ACCEffABLE WASTE Commencing on the
Commencement Date, the County in accordance with Applicable Law shall provide or cause to be provided the
service of disposing of non -recycled Acceptable Waste originating or generated within the Unincorporated Area
and, with respect % such waste, shall comply wish the Waste Disposal Covenant as if the County constituted a City
subject to the Waste Disposal Covenant hereunder. Rates charged by the County for the disposal of each class of
non -recycled Acceptable Waste generated in the Unincorporated Area shall be the same as the Contract Fee charged
for the disposal of each class of Controllable Waste. The Cotmty shall use its best efforts to preserve, protect and
defend its right to exercise and comply with the Waste Disposal Covenant (with respect to non -recycled Acceptable
Waste generated in the Unincorporated Area) against any challenge thereto, legal or otherwise, by a Franchise
Hauler or any other person, based upon breach of contract, violation of law or any other legal theory. The County
shall bear the cost and expense of any such Legal Proceeding or other challenge (with respect to non -recycled
Acceptable Waste generated in the Unincorporated Area).,
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SECTION 3.5 NOSCELLANEOUS OPERATIONAL MATTERS.
(A) Operating Hours. The County shall [seep the Disposal System open for the receiving of
Controllable Waste during such regular operating hours as may be established by the Department in the operating
rules and regulations applicable to the Disposal System. The County shall utilize best efforts to maintain
substantially similar hours, as were in effect on January 2, 20W, for the receipt of waste through the term of this
Agreement (subject to Applicable Law).
(B) Scales and Weighing. The Department shall operate and maintain permanent scales at
the Disposal System. The Department shall weigh all vehicles delivering waste by or on behalf of the City (whether
or not the County accepts such waste) and prepare a daily weight record with regard to such delivery.
(C) Service Coordinator. The County and the City each shall designate in writing thirty days
prior to the expected Commencement Date a person to transmit instructions, receive information and otherwise
coordinate service matters arising pursuant to this Agreement (each a "Service Coordinator"). Either party may
designate a successor or substitute Service Coordinator at any time by notice to the other party.
(D) Review of Records. Each party may review the other party's books and records with
respect to matters relevant to the performance by either party under this Agreement or otherwise related to the
operation of the Disposal System to the extent allowed under the California Public Records Act (interpreted as if the
parties to this Agreement were natural persons for purposes of the Public Records Act).
SECTION 3.6 OTHER USERS OF THE DISPOSAL SYSTEM.
(A) On or Before I , 1114 1,07. 2009]. On or before (120 DAYS AFTER BOARD
APPROVAL], the County shall have the right to Atiter into waste disposal agreements with Orange County entities
with respect to Acceptable Waste which was originally discarded by the fust generator thereof within the
geographical limits of the County, including other cities in the County, Sanitary Districts, Transfer Stations and
Independent Haulers, which waste disposal agreements shall have terms and provisions substantially identical to the
terms and provisions of this Agreement; provided, however, that in no event shall such agreements have terms and
provisions more favorable than the term and provisions of this Agreement (including but not limited to the Contract
Rate and availability of disposal capacity).
(B) After cy4U 2009. After (120 DAYS AFfE[t BOARD APPROVAL], the
County shall have the right to enter into waste disposal agreements with Orange County entities, including any city,
Sanitary District, Transfer Station and Independent Hauler, or otherwise accept Acceptable Waste from such parties,
but only within the limitations contained in this Section. Any such agreement or waste acceptance agreement must
provide That the party delivering waste shall pay a Posted Disposal Rate at least 100'/6 higher than the Contract hate
unless the County determines it is in the best interest of the Disposal System to establish a Posted Disposal Rate less
than 101/6 higher than the Contract Rate. In no event shall the Posted Disposal Rate be equal to or less than the
Contract Rate. In addition, the County shall reserve the right in any such waste disposal agreement at any time, to
the extent permitted by Applicable Law, to refuse to receive and dispose of Acceptable Waste from any city, County
Sanitary District, Transfer Station and Independent Hauler if and to the extent that such receipt and disposal may
materially and adversely affect the ability of the County to comply with its obligations to the Participating Cities
under the Disposal Agreements to which each is a party.
(C) Receipt of Imported Acceptable
Waste on a Contract Basis. The County shall have the right to enter into a contract or other agreement with any
municipal or private non-Cormty entity for the delivery of Imported Acceptable Waste on terms and conditions that
the County determines to be necessary to ensure and enhance the viability of the Disposal System for the benefit of
the County and the Participating Cities and to generate Net Import Revenues. The County certifies that in its good
faith judgment the contract or other agreement for the delivery of such waste will not materially and adversely affect
the ability of the County to receive and dispose of Acceptable Waste from the Participating Cities in accordance
with the applicable Disposal Agreements throughout the Term thereof. The term of any such agreement for the
disposal of Imported Acceptable Waste shall end by the later to occur of (i) December 31, 2015 or (ii) the date on
which County general purpose revenues are no longer expended to pay debt service on the Orange County Public
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Financing Authority Lease Revenue Refunding Bonds Series 2005, but in no event later than the last day of the
fiscal year commencing July 1, 2015.
(D) Self Haulers. The City and the County acknowledge that Self -Haulers shall be entitled to
deliver Self -Hauled Waste to the Disposal System, on a non -contract basis, at the Posted Disposal Rate. Such Self -
Haulers Mall not be entitled to dispose of Acceptable Waste for the Contract Rate.
(E) AMfication and Use f -UsersAll revenues received by the
County from the disposal of County Acceptable Waste by the Disposal System, and all revenues received by the
County from the disposal of Imported Acceptable Waste by the Disposal System, shall be deposited by the County
in the County OC Waste & Recycling Enterprise Fund and shall constitute revenues of the Disposal System.
Pursuant to the County's Plan of Adjustment, the County is entitled to receive net revenues (after payment of all
costs attributable to the acceptance of such Imported Acceptable Waste at the Disposal System) ("Net Import
Revenueel from the disposal of Imported Acceptable Waste by the Disposal System, and such Net Import
Revenues may be used for the payment of bankruptcy related obligations in accordance with the Plan of Adjustment.
Costs attributable to the disposal of Imported Acceptable Waste include deposits to the Environmental Fund,
deposits to closure and postclosure reserves, City host fees (if applicable), incremental operating costs (such as
manpower expenditures, equipment, services and supplies expenditures), state surcharges, and a pro rata share of
capital project costs. The parties acknowledge that their intention in determining to allow the importation of
Imported Acceptable Waste for disposal by the Disposal System is to stabilize the Contract Rate at rates below those
which would otherwise prevail in the absence of such importation.
SECTION 3.7 COUNTY PROVISION OF WASTE DIVERSION SERVICES.
(A) -CmM -Hides Recycling Servicer. This Agreement does not require the County to
provide for any source reduction, materials recovery, recycling, composting, or other waste diversion services by the
County nor any payment therefor by the City, by Franchise Haulers err by ratepayers; provided, however, any
County -Wide Recycling Services may be funded through the County OC Waste & Recycling Enterprise Fund. Any
such recycling services may be expanded, contracted or modified by the County at any time in its sole discretion.
($)5epart�Cit rL�'ounty Diversion. Service Agreements. Nothing in this Agreement is
intended to limit the right of the County to enter into a separate agreement with the City or any other person to
Provide source reduction, materials recovery, recycling, composting or other waste diversion services. Any such
Program conducted by the County, whether in participation with the City, any other of the Participating Cities, other
Cities, Sanitary Districts, Transfer Stations, Independent Haulers, Unincorporated Area or non -County entity, shall
be operated, managed and accounted for as a program separate and distinct from the Disposal Services program
contemplated by the Disposal Agreements and shall not be funded through the general revenues of the Disposal
System.
ARTICLE N
CONTRACT RATE
SECTION 4.1 OHARGMG AND SECURING PAYWW OF CONTRACT RATE. The City
acknowledges that the County shall have the right to charge and collect a Contract Rate for the acoeptance and
disposal of Controllable Waste delivered to the System by any Franchise Hauler. The Contract Rate shall be
calculated and established, and may be modified, as provided in Section 4.2 hereof. In addition, the City
acknowledges that the County shall have the right to establish as part of the operating rules and regulations
reasonable measures to secure the payment of all Contract Rates,
SECTION 4.2 CONTRACT RATE.
(A) Establishment of Contract Rate. The Contract Rate payable by each Franchise Hauler
shall be (x) $22.00 per ton from. the Commencement Date through dune 30, 2010, and (y) $29.95 per ton on and after
July 1, 2010, in both cases contingent on the delivery to the Disposal System of an amount of Acceptable Waste at
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least equal to the Cumulative Tonnage Targets identified in Appendix 2, and subject to adjustment necessary to
reflect the circumstances set forth in this Section 4.2:
(i) increased costs incurred by the County (in excess of available insurance
proceeds) due to the occurrence of one or more Uncontrollable Circumstances, other than Changes in Law;
(ii) costs incurred by the County (in excess of available insurance proceeds and
amounts available in the Environmental Fund for such purposes) remediating environmental conditions at the
Disposal System or inactive or closed disposal sites in the County, which, if uncorrected, could give rise to potential
claims under CERCLA or related federal or state statutes, including costs incurred providing indemnification to any
Participating City pursuant to subsection 7.3; or
(iii) tonnage shortfalls to the extent permitted by Sections 4.2(B);
(iv) average annual inflation prior to July 1, 2010 in excess of the levels set forth in
Section 4.2(Ii) and escalation pursuant to Section 4.2(F) ;
(v) increased costs incurred by the County (in excess of available insurance
proceeds) due to the occurrence of one or more Manges in Law; or
(vi) Capital Costs in excess of the Capital Costs at any point in time during the term
hereof exceeding the Cumulative Capital Costs set forth in Appendix 3.
Prior to adjusting the Contract Rate as a result of any of the circumstances described in clauses (i), (ii) or (iii) above,
the Cohmty shall utilize the following remedies in the following order of priority:
(x) reduce the costs of operating the Disposal System to the extent practicable; and
(y) utilize Unrestricted Reserves to pay costs of the Disposal System.
The County will not be required to utilize such remedies prior to adjusting the Contract Rate as a result of any of the
circumstances described in clauses (iv), (v) or (vi) above.
Any adjustments to the Contract Rate permitted by this Section shall be calculated by the County to reflect the actual
costs or expenses of addressing the circunwaace or circumstances pursuant to which the adjustment is authorized.
The County agrees that it will evaluate the feasibility of long term financing for significant capital costs where
appropriate.
(B) County Acceptable Waste Shortfall. In the event that the actual amount of County
Acceptable Waste delivered to the Disposal System at the end of any Contract Year is less than the Cumulative
Tonnage Target for such Contract Year for County Acceptable Waste, as specified in Appendix 2, the County shall
utilize the following options, in the fallowing order of priority, in order to remedy any adverse effects of such
tonnage shortfall:
the Disposal System;
(i) reduce the costs of operating the Disposal System to the extent practicable;
(ii) utilize Restricted Reserves described in clause (iii) of Section 4.5 to pay costs of
(iii) utilize Unrestricted Reserves to pay costs of the Disposal Systern; and
(iv) adjust the Contract Rate.
In the event that implementation of the steps described above does not result in sufficient revenues to satisfactorily
address the shortfall in tonnage, the County shall have the right to terminate the Agreement on 60 days written
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notice to the City. In addition, in the event that actual deliveries to the Disposal System exceed the Cumulative
Tonnage Target as of the end of any Contract Year, the City acknowledges the County shall have the right to
establish reserves intended to reflect the potential for lower than expected annual waste deliveries in subsequent
years, and that any such reserves shall constitute "Restricted Reserves".
(C) [RESERVED]
(D) Interim UER QfRernedies. In the event that, during any Contract Year, waste deliveries to
the Disposal System are 250/a or more below delivery projections for such Contract Year with the result that the
County determines it is unlikely that the Cumulative Tonnage Target will be achieved as of the end of such Contract
Year, the County may utilize the remedies described in Section 4.2(B) prior to the end of such Contract Year;
provided, however, that if at the end of such Contract Year, the Cumulative Tonnage Target is actually met, the
County shall reimburse any adjustments to the Contract Rate made pursuant to this Section to Participating Cities.
Such reimbursement may be given as a credit or adjustment to the Contract Rate for future deliveries, rather than a
lump sum payment.
(I:) Special Chau. Notwithstanding Section 4.2(A), the County shall have the right to
impose special charges for the receipt of hard to handle materials, such as bulky materials, construction and
demolition debris, tree stumps and sludge. Such special charges shall be calculated to reflect the reasonable
incremental costs to the County of accepting such hard to handle materials. In addition, in the event that the Board
of Supervisors of the County makes a determination to implement a facility (including but not limited to a transfer
station, landfill, conversion technology facility, or a materials recovery or processing facility), which facility would
be intended to provide for disposal alternatives after the closure of one or more of the landfills currently operating
within the Disposal System, the County may impose an additional charge of $0.50 per ton of Acceptable Waste in
order to pay the costs of the study, development, planning, construction and/or operation of such facility.
4.2(I). Adjustments pursuant to this Section 4.2(E) shall not require compliance with the provisions of Section
(F) lation The Contract Rate shall be adjusted each July 1, beginning July 1, 2011. The
change will be equal to the positive percentage change in the Consumer Price Index — All Urban Consumers, U.S.
city average, All items, Not Seasonally Adjusted, Series ID CUUROOOOSAO ("CPI") as measured from the October
21 months prior to the rate adjustment to the October immediately preceding the rate adjustment. For example: The
July 1, 2011 rate adjustment shall be based upon the index change from October 2004, to October 2010, referred to
as year 1 and year 2 respectively in the following example.
Formula to calculate percentage change in the Contract Rate:
Step 1:
C October Year 111 J _ 1 m % increase in Contract Rate
October Year 1 CPI J
Step 2: Current Contract Rate x (1+ % increase in Contract Rate) = Contract Rate as of July 1 Year 2
On each April 1, commencing April 1, 2011, the County shall provide the City with notice of the
adjustment to the Contract Rate to be effective the following July 1. Such notice shall contain the calculation of the
adjustment set forth above. The County will calculate the new Contract Rate each year.
In the event that the change in the CPI is negative, no rate adjustment will be made for that year. No
adjustment under this Section 4.2(F) will take place until the October CPI index surpasses the index level as of the
October immediately preceding the last annual rate adjustment pursuant to this Section 4.1(F), which will be
considered "year 1" in calculating the change in the Contract Rate.
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For example, if the CPI is measured as follows: October 2009 = 205, October 2010 = 204, October 2011=
201, October 2012 = 208, then there would be no adjustment in July 2011, or July 2012, and an adjustment equal to
the change from 205 to 208 would be implemented on July 1, 2013.
Adjustments pursuant to this Section 4.2(F) shall not require compliance with the provisions of Section
42(I).
(G) .Adiustment Resulting from Increased Fees. In addition to the other adjustments specified
herein, the Contract Rate shall be adjusted to reflect the imposition of new fees or increase in existing fees relating
to the disposal of Controllable Waste imposed by state, federal or other agencies (i.e., the State's integrated Waste
Management fee, which is currently $1.40 per ton). The adjustment shall be equal to the amount of any new or
increased fee, and the adjustment shall take effect so as to coincide with the imposition of the new or increased fee.
The County shall provide notice of any increase pursuant to this Section 4.2(G) as soon as practicable after
becoming aware of the imposition of any fees described above.
Adjustments pursuant to this Section 4.2(G) shall not require compliance with the provisions of Section
4.2(I).
(H) Calculation of Cumulative Inflation Rate. For purposes of Section 4.2(Axiv) for
adjustments prior to July 1, 2011, the inflation shall be calculated as the change in the CPI between.July of the year
of calculation and July 1, 2008. Inflation shall be deemed to exceed the levels set forth below if the ratio between
the CPI for July for the year of calculation (calculated in accordance with the formula below) and July 2008 exceeds
the ratio corresponding to such year of calculation on the table below. The ratio shall be calculated in accordance
with the following formula;
(July CPI of calculation year / CPI for July 2008)
Year of Cakul don
Ratio
July 1 2008
1.0000
July 1 2004
1.0355
July l 2010
1.0723
In the event the CPI is no longer published during the tam of this Agreement, such other index identified by the
Bureau of Labor Statistics or otherwise generally accepted as a replacement for CPI shall be used for purposes of
this Agreement. in the event of an adjustment to the Contract Rate pursuant to this section 4.2(H), such adjustment
shall be applied to the Contract Rate effective until June 30, 2010, and the Contract Rate effective July 1, 2010.
Adjustments pursuant to this Section 4.2(H) shall not require oompliance with the provisions of Section
4-2(1)-
(1) Procedure for Rate Adjustm mts. In the event the County determines that it is entitled to
an adjustment of the Contract Rate pursuant to Section 4.2(A) (other than 4.2(Axiv)) or Section 4.2(B), it shall
utilize the procedures described in this Section 4.2(1). The County shall be required to provide the City with at least
40 days prior written notice of the adjustment, which notice shall identify the specific event(s) or circumstances
which require the adjustment. The notice shall also specify the earliest date on which the County Board of
Supervisors shall consider the proposed adjustment. At least 45 days prior to such meeting of the Board of
Supervisors, the County shall provide the City with a report which shall contain the following information: a
description of the specific event(s) or circumstances which require the adjustment; a description (including cost
estimates) of any activities (which may include, but not be limited to capital improvements to the Disposal System)
required in order to remedy such event or circumstance; certification by the County that it has implemented the
remedies described in Section 4.2(A) or (B) prior to requiring the rate adjustment; and a description of the
methodology used by the County to calculate the adjuslmeat to the Contract Rate (hereinafter the "County Report").
In the event the City disputes the adjustment, it shall provide the County with a written description of the reason for
the dispute at least 10 days prior to the meeting of the Board of Supervisors identified in the initial notice of the
County (hereinafter the "City Report"). The City Report shall be provided to the Board of Supervisors for
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consideration at such meeting in connection with the proposed rate adjustment. At any time from and after the date
that the County provides the City with the County Report, upon the request of either party, the City and County shall
meet and confer in good faith to resolve any dispute that may arise regarding the proposed adjustment to the
Contract Rate. In any such meeting, the County shall be represented by the Director of the Department or his or her
designee. In the event the Board of Supervisors approves ail or a portion of the proposed rate adjustment, such rate
adjustment shall become effective on the date identified in the initial notice sant by the County regardless of whether
or not the procedures in Section 4.2(J) are utilized, but subject to potential reimbursement pursuant to clause (11) of
Section 4.2(.1).
(J) Proc a for Expedited Judicial Review Qf Ceu)gsled Rate Adj s Hent. In the event
that, within 30 days after the effective date of any Contract Rate adjustment made pursuant to Section 4.2M
Participating Cities which, in the aggregate, accounted for more than 50% of the County Acceptable Waste
delivered to the County System in the twelve months preceding the Contract Rate adjustment, provide notice to the
County of their election to utilize the procedures described in this Section 4.2(1), than the provisions of this
Section 4.2(J) shall be utilized by such Participating Cities and the County to resolve the dispute over the Contract
Rate Adjustment. In the event that Participating Cities which have delivered the amount of waste contemplated in
the preceding sentence do not provide notice to the County of such election, the County shall have no obligation to
participate in or cooperate in the implementation of the procedures described below in this Section 4.2(J).
(1) In order to pursue the expedited judicial determination described in this Section
(the "Expedited Rate Determination'),- the Participating Cities which have made the election described in the
paragraph above (the "Challenging Cities") must commence a civil action for breach of contract (the "Action") in
the Orange County Superior Court within 45 days of the date on which the Board of Supervisors approves the
challenged adjustment to the Contract Rate.
(2) Within two (2) days of filing the Action, the Challenging Cities shall personally
serve on the County Counsel both the summons and complaint, and a stipulation and request for the entering of an
order incorporating all of the procedural provisions relating to the Expedited Rate Determination as set forth in this
Section 4.2(J) (such stipulation and request for order is hereinafter referred to as the "Expedited Rate Determination
Stipulation"). The Expedited Rate: Determination Stipulation shall be signed by each of the Challenging Cities.
(3) Within fifteen (15) days of the date of service upon the County of the summons
and complaint, and Expedited Rate Determination Stipulation, the County Counsel shall execute the Expedited Rate
Determination Stipulation and personally serve upon the Challenging Cities through their counsel of record the
Expedited Rate Determination Stipulation and its answer to the complaint in the Action. The Stipulation shall also
include a waiver by each of the parties of their right to a jury trial of the issues raised in the Action. The Cityand
the County mutually agree that the duty to execute the Expedited Rate Determination Stipulation and comply with
the procedures set forth for Expedited Rate Determination in this Section 4.2(J) shall be, and are hereby deemed to
be, ministerial duties which the law specifically enjoins upon each of than, and shall be subject to enforcement by
the parties herein pursuant to Code of Civil Procedure Section 1085, et seq., or by means of a complaint for specific
performance.
(4) Within three (3) days of the date of service by the County upon the Challenging
Cities of the filly signed Expedited Rate Determination Stipulation, the County and the Challenging Cities shall
jointly make ex parte application to the Orange County Superior Court in the Action for the issuance of the order
contained in the Expedited Rate Determination Stipulation. At such ex parte application, the County and the
Challenging Cities shall also seek to confirm with the Orange County Superior Court the briefing schedule, and
request a hearing date in accordance with the procedures set forth in this Section 4.2(J).
(5) Within ten (10) days of the date of service by the County upon the Challenging
Cities of the answer in the Expedited Rate Determination, the Challenging Cities shall file with the court and
personally serve upon the County the Challenging Cities' opening brief and the Record m the Expedited Rate
Determination. The opening brief shall not exceed 15 pages in length. The Record shall consist o& and be limited
to, the record of the proceedings before the Board of Supervisors with respect to the adjustment of the Contract Rate,
including but not limited to the County Report and the City Report prepared by each or any of the Challenging
Cities pursuant to Section 4.2(l), any materials filed or lodged with the Board of Supervisors and the Orange County
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Waste Commission, the transcript of the proceedings of the Board of Supervisors meeting and the Change County
Waste Commission, the minutes of the Board of Supervisors and the Orange County Waste Commission meeting,
and the resolution and/or other documentation evidencing action by the Board of Supervisors and the grange
County Waste Commission to adjust the Contract Rate pursuant to Section 4.2(A) or (B). The record shall also
include the most recent reports prepared pursuant to Sections 4.6 and 4.7. The Expedited Rate Determination shall
be decided solely on the evidence in the Record, and no extrinsic evidence shall be submitted to or considered by the
court.
(6) Within ten (10) days of service by the Challenging Cities of their opening brief
and the Record, the County shall file and personally save upon the Challenging Cities the County's opposition
brief. The opposition brief shall not exceed 15 pages in length.
(7) Within five (5) days of service by the County upon the Challenging Cities of the
opposition brief, the Challenging Cities may file and personally serve upon the County a rebuttal brief, which shall
not exceed 10 pages in length.
(8) The trial of the Expedited Rate Determination shall be conducted as a hearing
which shall be conducted at the date set by the court in the ex parte hearing conducted pursuant to Section 4.2(J)(4),
or such other date and time ordered by the court. if the court requests the parties to prepare supplemental briefs in
response to any question or issue raised by the court, the parties may do so.
(9) The standard of review for the Expedited Rate Determination shall be the
preponderance of the evidence based upon the Record. The burden of proof shall be borne by the Challenging
Cities, and the burden of proof shall be the same as with respect to a plaintiff in a damages action for breach of
contract. Both parties have participated in the drafting of this Agreement. Accordingly, nothing set forth in this
Agreement shall be interpreted or construed for or against either of the parties as a consequence of their participation
in the drafting of this Agreement.
(10) The court shall issue its written statement of decision and enter judgment within
thirty (30) days of the date of the hearing in the Expedited Rate Determination.
(11) If the court determines that any portion of the County's adjusted Contract Rate
which is the subject of the Expedited Rate Determination was improperly imposed, the County shall, within 30 days
of the date of the statement of decision, reimburse to the City the amount improperly imposed, together with interest
calculated at the highest percentage rate that does not constitute usury under California laws. Such reimbursement
may be made in the form of a reduction in the Contract Rate for a future period (not to exceed twelve months)
reasonably calculated to provide full reimbursement of the amounts described above.
(12) If for any reason the court does not sign the order contained in the Expedited
Rate Determination Stipulation, the City shall, within 30 days of the court's denial of such requested order, file with
the court and personally serve upon the County a motion for summary judgment and/or motion for judgment on the
pleadings, in accordance with Code of Civil Procedure Section 437(c) and 438. By executing this Agreement, the
parties hereby stipulate that, in the event that the Challenging Cities file such summary judgment motion and/or
motion for judgment on the pleadings, the Record shall be deemed to have been incorporated into the complaint and
answer filed by the Challenging Cities and the County, and no evidence outside of the Record is relevant or material
to the dispute raised in the Expedited Rate Determination. The briefing schedule and hearing on such motion for
summary judgment and/or motion for judgment on the pleadings shall be in accordance with Code of Civil
Procedure Section 437(c), The Challenging Cities and the County shag be bound by all of the requirements and
restrictions set forth in Section 4.2(J) that are not in conflict with obis paragraph (12).
(13) In the event that the court both does not sign the order contained in the
Expedited Rate Determination Stipulation and either does not hear or does not issue a ruling on the merits on the
motion for summary judgment and/or judgment on the pleadings which is dispositive of the issues, claims and
causes of action in the complaint filed by the Challenging Cities, the County and the Challenging Cities shall, within
twenty days following the issuance of the Court's order or decision not to honor the parties' stipulation or not to
hear the parties' motion for summary judgment, make application to the Presiding Judge of the Orange County
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Superior Court for an expedited hearing or trial date. The Challenging Cities and the County shall be bound by all
of the requirements and restrictions set forth in Section 4.2M that are not in conflict with this paragraph (13). In this
regard, and without limiting the foregoing, the only evidence to be presented at the hearing or trial shall be the
Record, no testimony shall be presented at the hearing or trial; and both the County and the Challenging Cities
waive all rights to a jury trial, to any reconsideration of the decision of the court, to a new trial after the court renders
a decision, and to any appeal or review of the decision of the court.
SECTION 4.3 RESPONSIBILTT7C FOR PAYMENT OF THE CONTRACT RATE.
(A) Payment by City. In the event and to the extent (1) the City uses municipal collection
forces' directly for the haulage of Controllable Waste to the Disposal System or (2) the City uses non -municipal
Franchise Haulers for collection but nonetheless elects to pay the Contract hate from City revenues, the City, as its
own Franchise Hauler, shall have direct responsibility for payment of the Contract Rate, and shall take all such
budgetary, appropriation and other action as may be necessary to provide for the timely payment of the Contract
Rate. Such action may include, depending upon the means authorized by the City to provide for such payment, the
levy and collection of general or special taxes, the imposition of benefit assessments, or the collection of reser fees,
generator charges or other similar impositions for municipal solid waste disposal. The City shall use best efforts in
accordance with Applicable Law to levy and impose all such taxes, assessments, fees or charges, and will take all
steps„actions and proceedings for the enfarcesment, collection and payment of all such amounts which shall become
delinquent, to the full extent permitted by Applicable Law. To the. extent provided in Section 7.5 hereof, the
obligation of the City for such Coa raci Rates shall be limited to amounts in the City's Solid Waste Enterprise Fund.
From the Commencement Date to the date of expiration or termination of this Agreement, the obligation to the City
to pay the Contract Rate, to the extent the City rather &an Franchise Haulers is responsible directly for payment and
provided that the Service Covenant has been complied with, shall be absolute and unconditional and shall not be
subject to delay or diminution by reason of set-off, abatement, counterclaim, existence of a dispute or otherwise.
(B) parvmerrt by Franchise Haulers. With respect to Controllable Waste delivered by
Franchise Haulers other than City municipal collection forces, the obligation to pay the Contract Rate shall rest with
such Franchise Haulers and not with the City and, unless the City has agreed with the County to be responsible for
Franchise Hauler payments, the City shall not be financially responsible for any delay or failure by such Franchise
Hauler to pay the Contract Rate or any portion thereof when due. In the event of any such failure, the County and
the City shall cooperate with each other and use their best efforts to obtain timely payment. Such efforts by the
County may include, as appropriate, requiring cash payments for disposal rights from such Franchise Hauler and
bringing a legal proceeding for payment and damages. Such efforts by the City may include, as appropriate, legal
proceedings to suspend, revoke or terminate the Franchise Hauler's franchise, permit or license rights.
(C) Disputes If the City or the Franchise Hauler disputes any amount billed by the County in
any Billing Statement, the City or the Franchise Hauler shall nonetheless pay the billed amount and shall provide the
County with written objection within 30 days of the receipt of such Billing Statement indicating the amount that is
being disputed and providing all reasons then known to the City or the Franchise Hauler for any objection to or
disagreement with such amount. If the City or the Franchise Hauler and the County are not able to resolve such
dispute within 30 days after the City's or the Franchise Hauler's objection, either party may pursue appropriate legal
remedies.
SECTION 4.4 BILI&G OF THE CONTRACT RATE. The County shall continue to bill Contract
Rates after the Commencement Date, in the same manner as it has customarily billed tipping fees. Subject to the
other provisions of this Agreement, the County shall have the right to modify or amend sucb manner of billing on
reasonable notice to affected parties.
SECTION 4.5 RESTRICTED RESERVES. For purposes of this Agreement, "Restricted Reserves”
means cash and other reserves of the Disposal System which are restricted to specific uses or are otherwise being
reserved by the County to meet its obligations hereunder throughout the tenm of the Agreement with respect to the
Disposal System pursuant to any Applicable Law, contract, adopted budget, budgetary policy of the County with
respect to the Disposal System, or other arrangement. Such cash and other reserves are not required to be deposited
in separate accounts or finds in order to constitute "Restricted Reserves" hereunder, and may be commingled with
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Unrestricted Reserves or other funds of tate County attributable to the Disposal System. "Restricted Reserves" shall
include, but not be limited to, the following:
(i) reserves for closure of components of the Disposal System to the extent required
by Applicable Law;
(ii) amounts reserved by the County for funding of post closure maintenance and
monitoring with respect to components of the Disposal System;
(iii) reserves established to protect the Disposal System against the adverse financial
impact of potential decreases in waste deliveries pursuant to Section 4.2(B);
(iv) amounts reserved to pay the costs of capital improvements with respect to the
Disposal System;
(v) amounts funded from revenues during the early years of the term of the
Agreement reserved to enable the County to provide disposal services for the Contract Rate during the later years of
the Agreement;
(vi) amounts temporarily held by the County prior to payment to the State or other
Governmental Bodies pursuant to Applicable Law (including any fees or charges payable to the State Integrated
Waste Management Board);
(vii) reserves required to meet bond covenants pursuant to financing agreements for
Disposal System assets to the extent such amounts must be legally separate and distinct from other reserves
identified in this Section;
(viii) security deposits from landfill deferred payment program users;
(ix) amounts held by the County in the Environmental Fund (provided, however, that
such amounts in the Environmental Fund will be made available and used by the County if required to pay costs
relating to environmental remediation or other related costs);
(x) AD939 surcharges;
(xi) amounts held by the County in the Corrective Action Fund held pursuant to
CCR Title 27 to demonstrate financial assurance to pay for potential groundwater contamination; and
NO an amount equal to three months of budgeted expenses for die Disposal System
for the cement fiscal year, representing working capital of the Disposal System.
SECTION 4.6 AUDEFi? FINANCIAL STATEMENTS. The County shall annually, on or before
January 1 each year, prepare or cause to be prepared and have on file for inspection an annual report for the
preceding Contract Year, accompanied by a certificate ofan independent public accountant or of the County Auditor
and Controller as to the examination of the financial statements therein (describing such statements as fairly
presenting the information therein in conformity with generally accepted accounting principles) relating to the
Disposal System, the Disposal Services, and the fiscal activities of the County OC Waste Disposal Enterprise Fund,
and including statements in reasonable detail of the financial condition of the County OC Waste Disposal Enterprise
Fund as of the end of the Contract Year and revenue and expenses for the Contract Year,
SECTION 4.7 ANNUAL UPDATE OF TEN-YEAR FINANCIAL PROJECTION. The County shag
annually, on or before May 1 of each year, prepare or cause to be prepared, an updated Ten -Year Financial
Projection for the Disposal System. Said Financial Projection shall include at least two full years of prior actual data
and ten years of future projections including the following elements:
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3.
4.
Fund, with specific delineation
and all other funds of the Systerr
for other environmental costs.
County Acceptable Waste, in tons;
Imported Acceptable Waste, in tons;
Revenues and expenditures;
Cash fund balances, including all monies in the County Solid Waste Enterprise
of monies in the Environmental Fund, Restricted Reserves, Unrestricted Reserves,
Projected liabilities for closure and post closure as well as reasonable reserves
The purpose of the Ten -Year Financial Projection is to keep the City fully informed about the future financial,
condition of the Disposal System. The County shall carie a copy of the Ten -Year Financial Projection to be
delivered to the City Manager of the City no later than May 1 of each year. Upon request, the County shall make
available to the Cities supporting information related to the ten-year financial projection
ARTICLE V
BREACH, ENFORCEMENT AND TERMINATION
SECTION 5.1 RUACH. The parties agree that in the event either party breaches any obligation under
this Agreement or any representation made by either party hereunder is untrue in any material respect, the other
party shall have the right to take any action at law or in equity (including actions for injunctive reliefs mandamus and
specific performance) it may have to enforce the payment of any amounts due or the performance of any obligations
to be performed hereunder. Neither party shall have the right to terminate this Agreement except as provided in
Section 52 and Section 5.3 hereof or as otherwise provided in this Agreement.
SECTION 5.2 CITY CONVENIENCE TERMINATION. The City shall have the right to terminate this
Agreement in its We discretion, for its convenience and without cause at any time during the Term hereof upon
90 days' written notice to the County. If the City exercises its rights to terminate the Agreement pursuant to this
Section, the City shall pay the County a termination fee equal to the Contract Rate in effect at the time of such
termination (or any higher rate with resect to which the County has provided notice pursuant to Section 4.2)
multiplied by the number of tons of City Acceptable Waste delivered to the Disposal System during the preceding
twelve months (or, if the City had been in breach of the Waste Disposal Covenant during such prior months, such
amount as would have been delivered if the City had complied with the Waste Disposal Covenant), multiplied by the
number of years remaining in the Term of the Agreement.
SECTION 5.3 TERMINATION.
(A) By City. Except as expressly provided herein, the City shall have no right to terminate
this Agreement for cause except in the event of the repeated failure or refusal by the County substantially to perform
any material obligation under this Agreement unless such failure or refusal is excused by an Uncontrollable
Circumstance; except that no such failure or refusal shall give the City the right to terminate this Agreement for
cause under this subsection unless:
(1) The City has given prior written notice to the County stating that a specified
failure or refusal to perform exists which will, unless corrected, constitute a material breach of this Agreement on
the part of the County and which will, in ita opinion, give the City the right to terminate this Agreement for cause
under this subsection unless such breach is oonected within a reasonable period of time, and
(2) The County has neither challenged in an appropriate forum (in accordance with
Section 5.5) the City's conclusion that such failure or refusal to perform has occurred or constitutes a material
breach of this Agreement nor corrected or diligently taken steps to correct such breach within a reasonable period of
time not more than 90 days from the date of the notice given pursuant to clause (1) of this subsection (but if the
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County shall have diligently taken steps to correct such breach within such reasonable period of time, the same shall
not constitute a breach giving rise to the right of termination for as long as the County is continuing to take such
steps to correct such breach).
(B) By County. Except as expressly provided herein, the County shall have no right to
terminate this Agreement for rause except in the event of the repeated failure or refusal by the City substantially to
perform any material obligation under this Agreement unless such failure or refusal is excused by an Uncontrollable
Circumstance; except that no such failure or refusal shall give the County the right to terminate this Agreement for
cause under this subsection unless:
(1) The County has given prior written notice to the City stating that a specified
failure or refusal to perform exists which will, unless corrected, constitute a material breach of this Agreement on
the part of the City and which will, in its opinion, give the County right to terminate this Agreement for cause under
this subsection unless such breach is corrected within a reasonable period of time, and
(2) The City has neither challenged in an appropriate forum (in accordance with
Section 5.5) the County's conclusion that such failure or refusal to perform has occurred or constitutes a material
breach of this Agreement nor corrected or diligently taken steps to correct such breach within a reasonable period of
time not more than 40 days from the date of the notice given pursuant to clause (1) of this subsection (but if the City
shall have diligently taken steps to correct such breach within such reasonable period of time, the same shall not
constitute a breach giving rise to the right of termination for as long as the City is continuing to take such steps to
correct such breach).
SECTION 5.4 NO WAIVERS. No action of the County or the City pursuant to this Agreement
(including, but not limited to, any investigation or payment), and no failure to act, shall constitute a waiver by either
party of the other party's compliance with any term or provision of this Agreement. No course of dealing or delay
by the County or the City in exercising any right, power or remedy under this Agreement shall operate as a waiver
thereof or otherwise prejudice such party's rights, powers and remedies. No single or partial exercise of (or failure
to exercise) any right, power or remedy of the County or the City under this Agreement shall preclude any other or
further exercise thereof of the exercise of any other right, power or remedy.
SECTION 5.5 FORUM FOR DISPUTE RESOLUTION. It is the express intention of the parties that all
legal actions and proceedings related to this Agreement or to the Disposal System or to any rights or any relationship
between the parties arising therefrom shall be solely and exclusively initiated and maintained in courts of the State
of California having appropriate jurisdiction.
ARTICLE VI
TERM
SECTION 6.1 EFFECTIVE DATE AND TERM.
(A) Initial Term. This Agreement shall become effective, shall be in full force and effect and
shall be legally binding upon the City and the County from the Contract Date and shall continue in full force and
effect until June 30, 2020, unless earlier terminated in accordance with its terms, in which event the Term shall be
deemed to have expired as of the date of such termination.
(13) O�r:on to Renew. This Agreement shall be subject to renewal by mutual agreement of
the parties, on or before June 30, 2018, for an additional term of ten years (the "Renewal Term") on the same terms
and conditions as are applicable during the Initial Term hereof. The City shall give the County written notice of its
irrevocable election to renew this Agreement on or before June 30, 2017. If the parties do not renew this Agreement
by June 30, 2018, the Agreement shall expire on June 30, 2020.
(C) Contract Rate,During Renewal Term. In connection with the parties' right to renew this
Agreement for an additional ten-year tern pursuant to Section 6.1(B), the parties shall, on or before June 30, 2018,
negotiate an applicable change in the Contract Rate for such renewal term. In determining any revisions to the
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Contract Rate to be applicable during any renewal period, in addition to the circumstances described in
Section 4.2(A), the parties may take into consideration the following parameters, including but not limited to:
(i) actual cost of operations;
(ii) population growth;
(iii) increase or decrease in available tonnage;
(iv) economic and disposal market conditions in the Southern California region;
(v) changes in transportation and technology,
(vi) closure and expansion of nearby landfills;
(vii) capacity of the Disposal System; and
(viii) available reserves which are in excess of the amount reasonably required as
(D) Survival_ Accrued Rift. The rights and obligations of the parties hettto pursuant to
Sections 3.1(13)(2), 5.1, 5.3, 5.5, 7.2, 7.3, 7.5, 7.7, 7.8, 7.9, and 7.10 hereof shall survive the termination or
expiration of this Agreement, and no such termination or expiration shall limit or otherwise affect the respective
rights and obligations of the parties hereto accrued prior to the date of such termination or expiration. At the end of
the Term of this Agreement, all ather obligations of the parties shall terminate.
SECTION 6.2 9O1y1MENCEl41> IVT DATE.
(A) ObtiggCtions otthe Paries the Commencement D The parties acknowledge
that the Disposal Agreements may be executed and delivered on different dates and that, except as provided in this
subsection, neither the County nor the City shall be obligated to perform its obligations hereunder until the
participation threshold provided herein has been met and the other conditions to the occurrence of the
Commencement Date have occurred. Prior to the Commencement Date, each party hereto shall at its own expense
exercise good faith and due diligence and take all steps within its reasonable control in seeking to satisfy the
conditions to the Commencement Date set forth herein as soon as reasonably practicable. The County and the City,
each at its own expense, shall cooperate fully with each other and the other Participating Cities in connection with
the foregoing undertaking. Until the Commencement Date occurs, the Original WDAs shall remain in full force and
effect.
(B) Cm&tion to the Qww-encenicnt Date. The Commencement Date for the Agreement
shall be the date on which the pm=tage of the County's Acceptable Waste attributable to Participating Cities
which have executed and delivered Disposal Agreements shall exceed 850% percent (using the percentage rates
attributed to such Cities in Appendix 1). Unincorporated County is assumed to be a Participating City for the
Purposes of determining the Commencement Date in accordance with this Section 6.2(b) and Appendix 1 of this
Agreement.
(C) Satisfaction of Condition and Commencement Date. Upon the satisfaction or waiver of
the condition to the Commencement Date, the County shall give written notice thereof to the cities which have
theretofore executed Disposal Agreements. The parties shall thereupon hold a formal closing acknowledging the
satisfaction or waiver of the condition to the Commencement Date, certifying that the Commencement Date has
occurred and designating the Participating Cities. Copies of all of the documents or instruments constituting or
evidencing satisfaction of the Commencement Date conditions shall be fiunished to each party prior to or on the
Commencement Date.
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(D) Newly Incorporated Cities. Any city within Change County which becomes incorporated
after the Commencement Date shall upon request be offered the opportunity by the County to become a
Participating City. if any such City executes a Disposal Agreement and meets the applicable condition provided in
subsection 6.2(B) hereof within ISO} days following the date of its municipal incorporation, then such City shall be
entitled to execute a Waste Disposal Agreement on substantially the same terms and conditions as this Agreement
(including the Contract Rate), notwithstanding the limitations contained in Section 3.6(B).
(E) Failure of Condition. If by 1k ` DAYS AFTER BOARD APPROVAL], or
such later date as the County may agree, the condition to de Commencement Date specified in this Section is not
satisfied, either party hereto may, by notice in writing to the other party, terminate this Agreement. Neither party
shall be liable to the other for the termination of this Agreement pursuant to this subsection, and each of the parties
shall bear its respective costs and expenses insured in seeking to satisfy the condition to the Commencement Date.
Notwithstanding anything in this Agreement to the contrary, in the event that this Agreement is terminated pursuant
to this Section, the provisions of the Original WDA shall remain in full force and effect on the terms and conditions
set forth therein.
ARTICLE VII
GENERAL PROVISIONS
SECTION 7.1 PPEBAIM AND MINTENANCEDISPOSAL SYSTEM. The County, at
its cost and expense through the County Solid Waste Enterprise Fund, shall at all times operate, or caused to be
operated, the Disposal System in accordance with Applicable Law and the operating rules and regulations of the
Department.
SECTION 7.2 ' _iZNCs MROLLABLE CIRCUMSTANCES -GENERALLY.
(A) Performance Excused.. Except as otherwise specifically provided in this Agreement,
neither the County nor the City shall be liable to the other for any failure or delay in the performance of any
obligation under this Agreement (other than any payment at the time due and owing) to the extent such failure or
delay is due to the occurrence of an Uncontrollable Circumstance.
(B) Notim-Mitigation. The party experiencing an Uncontrollable Circumstance shall notify
the other party by telecommunication or telephone and in writing, on or promptly after the date the party
experiencing such Uncontrollable Circumstance first knew of the commencement thereof, followed within 15 days
by a written description of (1) the Uncontrollable Circumstance and the cause thereof (to the extent known), (2) the
date the Uncontrollable Circumstance began and the cause thereof, its estimated duration, the estimated time during
which the performance of such party's obligations hereunder will be delayed, (3) the estimated amount, if any, by
which the Contract Rate may need to be adjusted as a result of such Uncontrollable Circumstance, (4) its estimated
impact on the other obligations of such party under this Agreement and (5) potential mitigating actions which might
be taken by the County or City and any areas where costs might be reduced and the approximate amount of such
cost reductions. Each party shall provide prompt written notice of the cessation of such Uncontrollable
Circumstance. Whenever such act, event or condition shall occur, the party claiming to be adversely affected
thereby shall, as promptly as reasonably possible, use its best efforts to eliminate the cause therefor, reduce costs and
resume performance under this Agreement. In addition, with respect to Changes in Law, the County shall diligently
contest any such changes the imposition of which would have a material adverse impact on the Disposal System.
While the delay continues, the County or City shall give notice to the other party, before the first day of each
succeeding month, updating the information previously submitted.
(C) !=act on Contract Rate. If and to the extent that Uncontrollable Circumstances interfere
with, delay or increase the cost to the.County of meeting its obligations hereunder and providing Disposal Services
to the Participating Cities in accordance herewith, the County shall be entitled to an increase in the Contract Rate as
provided in Section 4.2 herein or an extension in the schedule for performance equal to the amount of the increased
cost or the time lost as a result thereof. The proceeds of any insurance available to meet any such increased cost
shall be applied to such purpose prior to any determination of cost increases payable under this subsection. Any cost
reductions achieved through the mitigating measures undertaken by the County pursuant to subsection 7.2(13) hereof
upon the occurrence of an Uncontrollable Circumstance shall be reflected in a reduction of the amount by which the
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Contract Rate would have otherwise been increased or shall serve to reduce the Contract Rate to reflect such
mitigation measures, as applicable.
SECTION 73 ZpEM WICATION. To the extent permitted by law, the County agrees that, it will
protect, indemnify, defend and hold harmless the City from and against all Loss-and-Expepse arising from the City's
activity as an "arranger" (for purposes of and as such term is defined under CERCLA or comparable state statutes)
of municipal solid waste disposal pursuant to this Agreement. In the event the City shall ddArmine that because of
conflict or any other reason that it wishes to be defended by legal counsel other than the legal counsel provided by
the County, the cost of providing such legal counsel shall be the City's sole responsibility. The City acknowledges
the County's legitimate interest in actively participating in any defense, litigation or settlement whether the County
or the City provides legal counsel. Any casts incurred by the County pursuant to this Section snail be considered an
[incontrollable Circumstance cost and the County shall be entitled to adjust the Contract Rate as provided in
subsection 4.2(A) ham. The County shall not, however, be required to indemnify or defend the City from and
against all loss -and -Expense arising from any willful, lmowing, illegal or negligent disposal of hazardous waste
(other than incidental amounts of Household Hazardous Waste oommoniy found m municipal solid waste and
permitted to be disposed in Class III landfills under RCRA) which violates the County's landfill permits or
Applicable Law. The parties agree that this provision constitutes an indemnity under CERCI A (to the extent of the
specific provisions of this Section). The parties acknowledge that this subsection is not intended to and does not
create any obligation on the part of the County to provide any indemnification or defense to any Franchise Hauler,
whether franchised or not, or any Independent Hauler or Transfer Station, under any ckeimrstances. The City
acknowledges the County's legitimate interest in actively participating in any defense, litigation or settlement, and
shall, as a condition to this indemnity, coordinate fully with the County in the defense.
SECTION 7.4 RELATIONSHIP OF UM PARTIES. Neither party to this Agreement shall have any
responsibility whatsoever with respect to services provided or contractual obligations or liabilities assumed by the
other party hereto, whether accrued, absolute, contingent or otherwise, or whether due' or to become due. The
County is an independent contractor of the City and nothing in this Agreement shall be deemed to constitute either
party a partner, agent or legal representative of the other party or to create any fiduciary relationship between the
parties.
SECTION 7S Llhil'CED RECOURSE.
(A) To thr, City Except in the event the City has not established or maintained a City Solid
Waste Enterprise Fund, no recourse shall be had to the general funds or general credit of the City for the payment of
any amount due the County hereunder, or the performance of any obligation incurred hereunder, including any Loss -
and -Expense of any nature arising from the performance or non-performance of the City's obligations hereunder.
The sole recourse of the County for all such amounts shall be to the funds held in any such Solid Waste Enterprise
Fund All amounts held in any City Solid Waste Enterprise Fund shall be held for the uses permitted and required
thereby, and no such amounts shall constitute property of the County. The City shall make adequate provision in the
administration of any City Solid Waste Enterprise Fund for the payment of any amount or the performance of any
obligation which may be due hereunder.
(13) To the County. No recourse shall be had to the general funds or general credit of the
County for the payment of any amount due the City hereunder, or the performance of any obligation incurred
hereunder, including any Loss and-Expeow of any nature arising from the perforce or non-performance of the
County's obligations hereunder. The sole recourse of the City for all such amounts shall be to the funds held in the
County Solid Waste Enterprise Fund in accordance with the terns of this Agreement. All amounts held in the
County Solid Waste Enterprise Fund shall be held for dee uses permitted and required thereby, and no such amounts
shall constitute property of the City. The County shall make adequate provision in the administration of the County
Solid Waste Enterprise Fund for the payment of any amount or the performance of any obligation which may be due
hereunder.
SECTION 7.6 PRE-EXISTING RIGHT'S AND I.IAHILITIES. Nothing in this Agreement is intended
to affect, release, waive or modify any rights, obligations or liabilities which any party hereto may have to or against
the other party as of the Contract Date relating to the disposal of waste in the Disposal System or any other related
matter.
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SECTION 7.7 NO VESTED RIGHTS. The City shall not acquire any vested property, license or other
rights in the Disposal System by reason of this Agreement.
SECTION 7.8 LIABILITY FOR COLLECTION. TRMSPORTATIQ AND PROCESSING. Any
liability incurred by the City as a result of collecting Acceptable Waste or processing it for diversion from landfill,
or as a result of causing, franchising, permitting, licensing, authorizing or arranging any of the foregoing, shall be its
sole liability, except as expressly otherwise provided herein.
SECTION 7.9 NO CONS,EQUEVIITAL OR PUNITIVE DAMAGES. In no event shall either party
hereto be liable to the other or obligated in any manner to pay to the other any special, incidental, consequential,
punitive or similar damages based upon claims arising out of or in connection with the performance or non-
performance of its obligations or otherwise under this Agreement, or the material inaccuracy of any representation
made in this Agreement, whether such claims are based upon contract, tort, negligence, warranty or other legal
theory.
SECTION 7.10 Ai1dENDMENTS. Neither this Agreement nor any provision hereof may be changed,
modified, amended or waived except by written agreement duly authorized and executed by both parties.
SECTION 7.11 NOTICE OF LITIGATION. Each party shall deliver written notice to the other of any
Legal Proceeding to which it is a party and which questions the validity or enforceability of this Agreement
executed by the City or the County or any Legal Entitlement issued in connection herewith.
SECTION 7.12 FURTHER ASSURANCES. At any and all times the City and the County so far as may
be authorized by law shall pass, snake, do, execute, acknowledge and deliver any and every such further resolutions,
acts, deeds, conveyances, instruments, assignments, transfers and assurances as may be necessary or reasonably
requested by the other in order to give full effect to this Agreement.
SECTION 7.13 ASSIGNMENT OF AGRE(A) Assizmmnt. Neither this Agreement nor any of
the rights or obligations hereunder may be assigned by either party hereto without the prior written consent of the
other party, which may be withheld in the other party's sole discretion. Notwithstanding the foregoing; either party
may assign this Agreement to another public entity, subject to the reasonable consent of the other party. In such
circumstances the party not requesting the assignment shall have the right to demand assurances. of the financial,
technical and legal ability of the proposed assignee to undertake the responsrbilities and obligations of the assigning
ply.
(B) Sale. The County shall not enter into any agreement for the sale of the Disposal System which provides
for an effective date for such sale prior to the termination of this Agreement.
SECTION 7.14 INTEREST DN OVERDUE OBLIGATIONS. Except as otherwise provided herein, all
amounts due hereunder, whether as damages, credits, revenue or reimbursements, that are not paid when due shall
bear interest at the Overdue Rate on the amount outstanding from time to time, on the basis of a 355 -day year,
counting the actual number of days elapsed, and all such interest accrued at any time shall, to the extent permitted by
Applicable Law, be deemed added to the amount due, as accrued.
SECTION 7.15 BINDING EFFECT, This Agreement shall bind and inure to the benefit of the parties
hereto and any successor or assignee acquiring an interest hereunder consistent with the provisions of Section 7.13
hereof.
SECTION 7.16 NOTICES. Any notice or communication required or permitted hereunder shall be in
writing and sufficiently given if delivered in person or sent by certified or registered mail, postage prepaid, to the
notice address of the respective parties set forth on the cover page of this Agreer tatiL Changes in the respective
addresses to which such notices may be directed may be made from time to time by any party by notice to the other
ply,
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IN WITNESS WHEREOF, COUNTY and CITY have caused this Ageetnent to be executed by their duly
authorized officers or representatives as of the day and year Fust above written.
Date
Date
Data
APPROVED AS TO FORM:
COUNTY COUNSEL
ORANGE COUNTY, CALIFORNIA
By
Date
t3wmom Copy
COUNTY OF ORANGE
By
BY
By
29
Director, OC Waste & Recycling
INAW)
City Representative
City of Newport Beach
[NANMI
City Representative
City of Newport Beach
APPROVED AS TO FORM:
,4.,, (. ff ��
City Attomev
ATTEST:
City Cleric
City of Newport.Beach
3JVNNOI llvflNNV Q2,LVNiLLSH
T X[[IN 34uv
0
Adoo vow—x3
20-389
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APPENDIX 1
PERCENTAGE OF COUNTY ACCEPTABLE WASTE ATTRIBUTABLE TO PARTICIPATING CITIES FOR
PURPOSE OF SECTION 6.2(b)
Jurisdiction
Percentage of County
Acceptable Waste
Anaheim
13.40A
Santa Ana
10.6%
Irvine
7.5010
Huntin0on Beach
6.00/0
Otanze
5.Wo
Garden Grove
5.1%
Fullerton
4.5%
Unincorporated Oran a Coun
4.3%
Costa Mesa
3.61/6
Newport Beach
3.0%
Lake Forest
2.60/6
Buena Park
2.5%
Mission Vi 'o
2.3%
Westminster
2.3%
Yorba Linda
2.3%
Brea
2.1%
Tustin
2.0%
QTress
1.9%
La Habra
1.80/6
San Clemente
1.7%
Fountain Valley
1.6%
Lwm N el
1.6010
Placentia
1.6%
San Juan Capistrano
1.66/o
Laguna Beach
1A%
Dana Point
12010
Stanton
1.1%
Rancho Santa Mamarita
1.0%
Laguna Hills
0.90/0
Seal Beach
0.8%
Aliso Viejo
0.7%
Los Alamitos
0.5010
La Palma
0.3%
Lams Woods
0.20/0
Villa Park
0.2°
Total
100%
(l) Unincorporated County is assumed to be a Participating City for the purposes of determining
the Commencement Date m accordance with Section 6.2(b) of this Agreement.
(2) A Participating City will only be included for purposing of determining the Commencement
Date upon (i) execution of a Waste Disposal Agrt by that Participating City and (ii)
execution of a Hauler Acknowledgement(s) by the Franchise Haulers) operating within such
Participating City
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20-391
LJ
APPENDIX 2
Cumulative County Acceptable Waste Tonnage Target to be Used
for Purposes of Section 4.2 (B)
Fiscal Year
County AccepwMe Waste
Cumulative County
Tonnage
Areiptable Waste Tonnage
FY 2008-09
3,170,387
3,170,387
FY 2009-10
3,092,806
6,263,193
FY 2010-11
3,185,590
9,448,783
FY 2011-12
3,344,870
12,793,653
FY 2012-13
3,445,216
16,238,869
FY 2013-14
3,514,120
19,752,989
FY 2014-15
3,549,262
23,302,251
FY 2015-16
3,565,608
26,867,859
FY 2016-17
3,582,033
30,449,892
FY 2017-18
3,598,535
34,048,427
FY 2018-19
3,615,115
37,663,542
FY 2019-20
3,631,774
41,295,316
Execution Copy
20-392
Ll
APPENDIX 3
CUMULATIVE CAPITAL COSTS
to be Used
for Purposes of Section 4-2(A)vi
Fiscal Year
(ending June 30
Annual Capital Costs
Cumulative Capital Costs
2009
$37,939,538
$37,939,538
2010
$59,343,405
$97,282,943
2011
$10,433,979
$107,716,921
2012
$13,678,113
$121 39S 034
2013
$17 25 040
$138,920,074.
2014
$11,259,518
$150,179, 92
2015
$37,682,758
$187,862,350
2016
$&068,800 800
$19 931,150
2017
$10,662XS
$203,593 415
2018
$29,397,498
$232,991,113
2019
$8,263,795
$241,254,908
2020
$45,103,805
$286,358.713
acultion copy
20-393
APPENDIX 4
FORM OF HAULER ACKNOWLEDGMENT
Ex= im copy
20-394
FRANCHISE HAULER ACKNOWLEDGMENT
THIS FRANCHISE HAULER ACKNOWLEDGMENT, dated as of 2009 (the
"Acknowledgment"), by and between the City of (the "City"] and {the "Franchise
Hauler").
WITNESSETH
[WHEREAS, the City and the Franchise Hauler have heretofore entered into an agreement entitled
dated as of (the "Franchise"); and[
[WHEREAS, the City has issued to the Franchise Hauler a permit, license, approval or other authorization
the "Authorization") which allows the Franchise Hauler to provide solid waste collection services within the City;
and]]
[WHEREAS, the Franchise [SUBSTTfUfE "AUTHORIZATION THROUGHOUT IF APPLICABLE]]
provides for the collection and disposal of certain municipal solid waste as described therein ("Franchise Waste")
generated within the City; and]
WHEREAS, Orange County (the "County") owns, manages and operates a sanitary landfill disposal system
for municipal solid waste generated within the County; and
WHEREAS, the City and the County have heretofore entered into a Waste Disposal Agreement, dated as of
2009 (the "Disposal Agreement") determining that the execution of such Disposal Agreement will
serve the public health, safety and welfare of the residents of the City and County, by maintaining public ownership
and stewardship over the Orange County Landfill Disposal System (the "Disposal System"); and
WHEREAS, under.the bisposal Agreement, the County has agreed to provide long-term disposal of all
municipal solid waste generated within the City and the City has agreed to exercise all legal, and contractual power
which it possesses -from time to time to deliver or cause the delivery of such waste to the Disposal System; and
WHEREAS, the provisions of the Waste Disposal Agreement which guarantee capacity for the long term
disposal of waste at specified rates generated in the City provide significant benefits to the Franchise Hauler,
WHEREAS, notwithstanding any Franchise provisions to the contrary, the Franchise Hauler explicitly
acknowledges the aforementioned benefits to the City, the County and the Franchise Hauler in providing for the
disposal of all Franchise Waste to the Disposal System; and
WHEREAS, the City and the Franchise Hauler desire to enter into this Acknowledgment to assure that the
City and the Franchise Hauler will be entitled to the benefits of the Waste Disposal Agreement and to assure
conformity with the waste delivery obligations which have been agreed to by the City under the Disposal Agreement
through the delivery of waste by the Franchise Hauler to the Disposal System; and
WHEREAS, the Franchise Hauler's agreement to deliver Franchise Waste to the Disposal System under
this Acknowledgment is given in consideration of the Franchise Haider's right to receive the'Contract Rate for such
disposal as provided in the Disposal Agreement,
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound hereby,
agree as follows:
1. Capitalized terms used and not otherwise defined herein are used as defined in the Disposal
Agreement.
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2. The Franchise Hauler hereby waives any right which it may possess under applicable law to
contest on any ground, constitutional, statutory, case law, administrative or otherwise, (a) the right, power or
authority of the County or the City to enter into or perform their respective obligations under the Disposal
Agreement, (b) the enforceability against the County or the City of the Disposal Agreement, or (c) the right, power
or authority of the City to deliver or cause the delivery of all Controllable Waste to the Designated Disposal Facility
in accordance with this Acknowledgment.
3. The City and the Franchise Hauler each hereby represent that this Acknowledgment has been duly
authorized by all necessary action of their respective governing bodies.
4. The Franchise Hauler shall deliver or cause to be delivered all Controllable Waste (including all
residue from the proccssgng by any means, wherever conducted, of Controllable Waste), to the Disposal System, and
shall otherwise assist the City in complying with its obligations under the Waste Disposal Covenant in Section 3.1 of
the Disposal Agreement.
S. The Franchise Hauler shall not haul Controllable Waste to any materials recovery facility,
composting facility, intermediate processing facility, recycling cater, transfer station or other waste handling or
management facility unless the contract or other agreement or arrangement between the Franchise Haug and the
operator of such facility is sufficient in the opinion of the County to assure that the Residue from such facility
constituting City.. Acceptable Waste (or Tonnage equivalencies) and the City Acceptable Waste transferred by such
facility shall be delivered to the Designated Disposal Facility in compliance with the Waste Disposal Covenant.
6. The -Franchise Hauler shall pay the Contract Rate imposed by the County at the Designated
Disposal Facility for the disposal of all Controllable Waste, which rate shall be subject to potential adjustment
necessary to reflect the circumstances set forth in the Disposal Agreement.
7. Nothing in this Acknowledgment is intended to restrict any right or responsibility explicitlygiven
the Franchise Hauler in the Franchise to recycle City Acceptable Waste, except as provided in paragraph 5 above
with respect to Residue from any such recycling operations.
8. The obligations of the Franchise Hauler under this Acknowledgment shall apply notwithstanding
any provision of the Franchise which may conflict herewith.
9. This Acknowledgment may be enforced by the City by any available legal means. In any
enforcement action by the City, the burden of proof shall be on the Franchise Hauler to demonstrate compliance
herewith.
10. This Acknowledgment shall be in full force and effect and shall be legally binding upon the City
and Franchise Hauler from the dated hereof and shall continue in full force and effect until the earlier of (i) the end
of the term of the Franchise or (ii) the end of the term of the Disposal Agreement.
11. The City and Haulm agree that the County shall be an express third party beneficiary of this
Acknowledgment, and shall be entitled to independently enforce the obligations of the Franchise Hauler hereunder.
12. The Hauler agrees to assist the County in verifying tonnage collected by the Franchise Hauler and
providing information required by the County. Hauler will provide upon request refuse towage collected within the
County, and outside the County (if relevant to confirming tonnage origination), separated by jurisdiction, by load
type (residential, commercial, rolloff box), and by facility to which it was delivered (specify which landfill or
transfer station). Hauler will provide customer service levels and route lists. Hauler will cooperate with County
audits to verify reported origin of tonnage by making records and personnel available to the County and/or its
auditors.
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IN WUNESS WHEREOF, the parties have caused this Acknowledgment to be executed by their duly
authorized officers -Dr representatives as of day of , 2009.
CFFY OF
Signature:
Printed Name:
Title:
(Franchise Hauler)
Signature:
Printed Name:
Title:
20-397
ATTACHMENT J
Annual Contractor Compensation Adjustments
The annual adjustments to Contractor's compensation shall be completed as
described in this Attachment J. The costs in Attachment D-1 shall be effective from
January 15, 2022 through June 30, 2022. The first annual adjustment shall be
performed to calculate Contractor's costs for the period July 1, 2022 through June
30, 2023. The costs in Attachment D-1 shall be adjusted annually each July 1
throughout the Term of the Agreement.
1. General Calculation Procedures
A. Rounding Protocol
The following rounding protocol shall be used in the calculations described
herein: For the calculation of the percentage change in all indexes described in
this Attachment J, the calculations shall be rounded to one decimal place.
(Example: 2.3% or 0.2%). For calculation of all costs and cost components
described in this Attachment J, the calculations shall be rounded to two decimal
places. (Example: $2.39).
The numbers 1,2,3, and 4 in all calculations shall be rounded down. (Example: If
the result of the calculation were 7.344, the final figure would be 7.3.) The numbers
5, 6, 7, 8 and 9 in all calculations shall be rounded up. (Example: If the result of
the calculation were $3.468, the final figure would be $3.47).
B. Changes to Indices Used
In the event that the standard reference base period for any index used herein is
revised, the calculations shall be performed using the officially released data
published by the Bureau of Labor Statistics.
If an index used herein is discontinued, the successor index with which it is
replaced, shall be used for subsequent calculations. If no successor index is
identified by the Bureau of Labor Statistics, the government index which is most
comparable shall be used.
C. Use of Final CPI Index and "Preliminary" PPI Index Issued by Bureau of
Labor Statistics
The annual adjustments will be made in late spring of each year of the Term. The
Consumer Price Index ("CPI") listed in Subpart 2 below is made available by the
Bureau of Labor Statistics within 15 days after the close of each month. Therefore,
the CPI for the twelve (12) month period described herein, will be available in time
to complete the annual adjustment calculation prior to the July 1 start date for the
adjusted compensation amounts. (Note: for the CPI there is no "Preliminary"
version, only the "final" version issued by the Bureau of Labor Statistics.)
Attachment J Page 1 of 9
20-398
ATTACHMENT J
Annual Contractor Compensation Adjustments
The Producer Price Index ("PPI) referred to herein, is made available by the
Bureau of Labor Statistics on a more lagging basis. The "Final" version of the PPI
Index for the period through December of any year, will not be available in time for
the annual adjustment calculation to be completed prior to the July 1 start date for
the adjusted compensation amounts. Therefore, the parties agree the
"Preliminary" version of the PPI Index listed below shall be used in the calculation
each year.
2. Annual Adjustment Method Including Disposal Cost
Adjustment Method for Contractor Compensation in
Attachment D-1
A. Cost Components for Compensation Adjustment Indices
Each of the Contractor's line item costs listed in Attachment D-1 consist of the
following cost component categories and are weighted as shown in the table
below. Each cost component shall be adjusted by the change in the corresponding
index below.
*If an index is discontinued, an alternate index (as described above) must be
approved by City.
**This index may be accessed here:
httr)s://data.bls.gov/timeseries/CUURS49ASA0
Attachment J
Page 2 of 9
20-399
Percent of Cost
Cost Category
(Weighting)
Notes
Actual tip fee at the Orange County
Disposal
28%
Landfill System as of the effective date of
the adjustment.
Producer Price Index WPU 0531, Not
Fuel
5%
Seasonally Adjusted, Fuels and related
products and power, natural gas*.
Consumer Price Index for All items less
food and energy in Los Angeles -Long
Beach -Anaheim, CA, all urban consumers,
All Other Costs
67%
not seasonally adjusted
(CUURS49ASAOLIE), or 2.5%, whichever is
lower**
Total
100%
Total adjustment not to exceed 5%
increase in any year
*If an index is discontinued, an alternate index (as described above) must be
approved by City.
**This index may be accessed here:
httr)s://data.bls.gov/timeseries/CUURS49ASA0
Attachment J
Page 2 of 9
20-399
ATTACHMENT J
Annual Contractor Compensation Adjustments
B. Calculation Methodology.
Contractor's compensation in Attachment D-1 will be adjusted using the
component weightings identified in "A" above. The adjustment shall be calculated
as follows:
Step One. Calculate the percentage increase or decrease in each index listed
above. The increase or decrease in the published index for fuel (PPI), and all other
(CPI) will be the change in the average annual published index between the
calendar year ended the December prior to the July 1 compensation adjustment
date and the prior twelve (12) month period (see calculation example below),
unless the change in the CPI exceeds a two and one-half percent (2.5%) increase.
In such event, the costs labeled "All Other Costs" in the table above shall be
adjusted by two and one-half percent (2.5%). The increase or decrease in the
Disposal component shall be the change in the actual Disposal tip fee charged by
the County of Orange as of July 1 of the year of the adjustment (pursuant to the
City's landfill contract with the County in Attachment "I").
Step Two. Cost components as a percentage of total costs for the first
compensation adjustment are provided in the table above. The percentage of each
Cost Component for each subsequent annual adjustment (beginning with the
adjustment to become effective July 1, 2023) shall be as calculated in Step Four
described herein. For Step Two of each subsequent annual adjustment, use the
percentage for each Cost Component recalculated in Step Four during the prior
year's compensation adjustment.
Multiply the percentage changes for each compensation adjustment component
by that component's weighting and add these resulting percentages together to
obtain the total weighted change to the compensation.
Step Three. Multiply the total weighted percent change from Step Two by the
existing compensation to calculate the increase or decrease to the maximum
compensation. Add the compensation increase or decrease to the existing
compensation to arrive at the newly adjusted compensation.
Step Four. Recalculate the weightings for the following year based upon these
changes so that the sum of the three values equals 100%. To do so, divide the
adjusted cost component weightings by the total sum of the three cost component
weighting values so that the cost components are reweighed to equal 100%.
Attachment J Page 3 of 9
20-400
ATTACHMENT J
Annual Contractor Compensation Adjustments
Sample Calculations
Note: The costs and numbers in the sample calculations in this Attachment J are
for example only and do not reflect the actual costs or adjustments that will be
made.
Step 1: Calculate Percentage Change in Indices
Step 2: Determine Components
A
B
C
E
F
Percent Change in Index (Column
Adjustment
Category
Percent
Weighted
Index
Old Index Value
New Index Value
B/Column A = "X"). X/Column A =
Row
Factor
Adjustment Factor
Index
% change (round to 1 decimal)
1
Disposal
(1)
$36.09
$37.00
2.5%
2
Fuel
(2)
67.00
70.00
4.5%
3
All Other
(3)
282.388
286.680
1.5%
Step 2: Determine Components
Attachment J
Page 4 of 9
20-401
D
E
F
Cost Factor
Total
Category
Percent
Weighted
Change in
Adjustment Factor
Index
Weighted as a %
Change
Index from
of Component
(Columns D x
Column (C)
Row
Total (4)
E)
4
Disposal
(1)
28%
2.5%
0.7%
5
Fuel
(2)
6%
4.5%
0.3%
6
All Other
(3)
66%
1.5%
1.0%
7
Total (See Footnote 5)
100%
2.0%
Attachment J
Page 4 of 9
20-401
ATTACHMENT J
Annual Contractor Compensation Adjustments
Step Three: Apply Percentage Change to Costs
Attachment J
Page 5 of 9
20-402
G
H
I
J
Cost
Total
Increase
Adjusted
Weighted
or
Cost
Row
Cost Categories
Current
Percentage
Decrease
(Column
Cost (5)
Change
(Column
(from
G x
+
Column F)
Column
Column
mn I)
H)
8
Customer collection - City
$333,846
2.0%
$6,677
$340,523
9
Bulky Item Collection/month
$549
2.0%
$11
$560
10
Sharps Collection/month
$2,285
2.0%
$46
$2,331
11
HHW Door-to-Door/month
$11,431
2.0%
$229
$11,660
12
Emergency Collection Cost/hour
$138
2.0%
$3
$141
13
Customer collection - Newport Coast
$63,416
2.0%
$1,268
$64,684
14
Enhanced SB 1383 -mandated programs
$239,557
2.0%
$4,791
$244,348
15
40 -yd Load of Bulk Compost provided by contractor
$175.00
2.0%
$3.50
$178.50
16
1 pallet (48 bags) of compost provided by Contractor
$98.05
2.0%
$1.96
$100.01
24 pallet load of bagged compost provided by Contractor (48
$2353.26
2.0%
$47.07
$2,400.33
17
bags/pallet)
18
Hourly Cost Per Additional Temporary Customer Service Representative
$35.00
2.0%
$0.70
$35.70
Collection of Non -containerized Materials During Grace Period per
$2.47
o
2.0 /o
$0.05
$2.52
19
incident
Extra MSW Cart Charge paid by City during Extra Service Charge Delay
$6.09
o
2.0 /o
$0.12
$6.21
20
Period
Extra Recycling Cart Charge paid by City during Extra Service Charge
$3.41
2.0%
$0.07
$3.48
21
Delay Period
Extra Food Scrap/Green Waste Cart Charge paid by City during Extra
$4.11
°
2.0 /o
$0.08
$4.19
22
Service Charge Delay Period
Standard Valet Cart Service Charge paid by City during Extra Service
$8.30
o
2.0%
$0.17
$8.47
23
Charge Delay Period
Premium Valet Cart Service Charge paid by City during Extra Service
$27.68
°
2.0 /o
$0.55
$28.23
24
Charge Delay Period
Attachment J
Page 5 of 9
20-402
ATTACHMENT J
Annual Contractor Compensation Adjustments
Step Four: Re -weight Cost Components
(1) Disposal charge at the Orange County Landfill system per agreement in Attachment 1
(2) Producer Price Index WPU0531, not seasonally adjusted, Fuels and related products and power, natural
gas -average annual change
(3) Consumer Price Index for All items less food and energy in Los Angeles -Long Beach -Anaheim, CA, all
urban consumers, not seasonally adjusted (CUURS49ASAOLIE) average annual change limited to 2.5% per
year.
(4) First year based on Attachment D-1. After the first adjustment, this column comes from Column J of the
previous year's cost adjustment
(5) Example shown. Adjustment applies to all applicable compensation categories.
Attachment J
Page 6 of 9
20-403
K
L
M
N
O
Adjusted
Change In
Cost
Cost Components
Percentage
Reweighed to
Adjustment
Cost
Change in
Cost
Component
Equal 100%
Index
Component
Components
Weightings
Factor
Index
(Column N Row
(Column D)
(Column K x
(Column K
(Column E)
divided by Column
Column L)
+ Column
N Total)
Row
M)
25 Disposal (1)
28.0%
2.5%
0.7%
28.7%
28.1%
26 Fuel (2)
6.0%
4.5%
0.3%
6.3%
6.2%
27 All Other (3)
66.0%
1.5%
1.0%
67.0%
65.7%
28 Total
100.0%
102.0%
100.0%
(1) Disposal charge at the Orange County Landfill system per agreement in Attachment 1
(2) Producer Price Index WPU0531, not seasonally adjusted, Fuels and related products and power, natural
gas -average annual change
(3) Consumer Price Index for All items less food and energy in Los Angeles -Long Beach -Anaheim, CA, all
urban consumers, not seasonally adjusted (CUURS49ASAOLIE) average annual change limited to 2.5% per
year.
(4) First year based on Attachment D-1. After the first adjustment, this column comes from Column J of the
previous year's cost adjustment
(5) Example shown. Adjustment applies to all applicable compensation categories.
Attachment J
Page 6 of 9
20-403
ATTACHMENT J
Annual Contractor Compensation Adjustments
3. Example Cost Adjustment Formula — Calculation for
Average Annual Change in Published Price Indices
Cost adjustment indices for fuel (PPI), and "all other" are calculated using the
average annual change in the published index (with " all other" subject to a 2.5%
per year increase cap) as demonstrated in the example below, measured for the
twelve (12) months ended the December before each compensation adjustment,
as compared to the twelve months ended the prior December. The Bureau of Labor
Statistics publishes these monthly indices.
The following example is for the Consumer Price Index for All items less food and
energy in Los Angeles -Long Beach -Anaheim, CA, all urban consumers, not
seasonally adjusted (CUURS49ASAOL1 E) that is used to adjust the "all other" cost
components. If a cost adjustment based on this CPI index were to be implemented
as of July 1, 2021, the twelve (12) month average annual index for the period
ended December 2020 of 282.388 would have been the "New Index Value" to be
used in Column B of the example cost adjustment formulas in this Attachment J,
and the twelve (12) month average annual index for the period ended December
2019 of 277.102 would have been the " Old Index Value" in Column A. This would
have resulted in a 1.9% increase to the "all other" cost components in Column C.
All items less food and energy in Los Angeles -Long Beach -Anaheim, CA,
all urban consumers, not seasonally adjusted (CUURS49ASAOL1 E)
Year Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec Annual
2019 273.579 273.716 274.954 276.185 276.421 277.384 277.590 278.131 278.935 279.732 279.781 278.812 277.102
2020 281.022 282.124 280.815 280.885 281.340 282.329 283.839 283.752 282.712 283.055 283.873 282.907 282.388
Attachment J
Page 7 of 9
20-404
ATTACHMENT J
Annual Contractor Compensation Adjustments
4. Annual Adjustment Method For Prices Contractor Direct -
Bills to Customers for Extra Services in Attachment D-2
A. Timing of Adjustment of Prices in Attachment D-2.
The prices in Attachment D-2 shall be in effect from January 15, 2022 through June
30, 2022. Each of the prices listed in Attachment D-2 shall be adjusted to become
effective July 1, 2022 and shall also be adjusted each July 1 thereafter, for the
duration of the Term of the Agreement as follows.
B. Calculation Methodology.
Multiply each price in Attachment D-2 by the total weighted average change
calculated in Step Two of Section 1 above. (See Table titled "Step Two —
Determine Components" Row 7 of Column "F".
Sample Calculation:
Premium Valet Service — Initial Price as of January 15, 2022:
$27.68 per month
$27.68 x 2.0% = $0.55 + $27.68 = $28.23 per month (new Price)
5. Adjustment Method For Monthly Cost Per Residence (Only
Used For Calculation in Attachment Z and Only if Directed
by City)
The parties have determined and agreed that the monthly cost per residence to
receive the basic level of Residential service from Contractor is $24.08 as of the
Effective Date. For purposes of the calculations described in Attachment Z, the
annual adjustment is applied to the Monthly Cost per Residence as follows:
A. Timing of Adjustment of Per Residence Collection Cost
The "Monthly Cost Per Residence" of $24.08 (shown in Attachment Z) shall be in
effect from January 15, 2022 through June 30, 2022. This cost shall be adjusted
to become effective July 1, 2022 and shall also be adjusted each July 1 thereafter,
for the duration of the Term of the Agreement as follows. This adjusted cost is only
used for City -directed addition of specific groups of Residences and/or a
cumulative increase of 40 or more Certificates of Occupancy issued by the City for
a newly developed parcel pursuant to Section 12.07 and Attachment Z of the
Agreement, and for no other purpose.
Attachment J Page 8 of 9
20-405
ATTACHMENT J
Annual Contractor Compensation Adjustments
B. Calculation Methodology.
Multiply the "Monthly Cost Per Residence" in Attachment Z by the total weighted
average change calculated in Step Two of Section 1 above.
Sample Calculation:
"Monthly Cost Per Residence" — Initial amount as of the Effective Date of the
Agreement: $24.08/month
$24.08 x 2.0% = $0.48 + $24.08 = $24.56 per month (new Monthly Cost Per
Residence)
Attachment J
Page 9 of 9
20-406
ATTACHMENT K
Reports to be Submitted to City
These reports are required at a minimum. The City has the right to request additional reports, to
direct Contractor to modify format and layout, and to require that Contractor use existing City
report formats. All report formats shall be approved by City and shall be submitted electronically
(i.e. via e-mail attachment). Paper copies shall be made available upon request by the City.
The reporting year shall be the Calendar Year (i.e. January 1 st through December 31 st). For the
initial year of the Term, the reporting period shall be January 15, 2022 through December 31,
2022. City will work with Contractor during the transition and the first year of operations to tailor
and refine reporting formats to the City's desired level of detail.
Contractor shall provide, for all monthly, quarterly, and annual reports, a certification statement,
under penalty of perjury, signed by the responsible corporate official, that the reports are true
and correct.
Monthly Reports
Monthly reports shall include a Year -To -Date summary. Monthly reports shall be submitted
within twenty-five (25) calendar days after the end of each month for information on preceding
the month. The information listed may be combined into one or several reports and shall be the
minimum reported:
1. Diversion Program(s) tonnage and goal summary listed by program and DPS Code.
2. Calculation of the Diversion rate achieved year-to-date.
3. Tons Collected and Diverted by Sector: Tons Collected and the Tons Diverted in the City
(using the characterization study -derived Diversion and Residue percentages - see
Attachment N). Tons Collected and Diverted shall be grouped by each type of Collection
service for each class of Customer, as described below:
Recyclable Materials Tons Collected and Diverted from Residential Customers
Co -collected Food Scraps and Green Waste Tons Collected and Diverted from
Residential Customers
• MSW Tons Collected from Residential Customers
4. Tons Delivered to, and Diverted by, Processing Facilities: Report shall list the number of
Tons that were delivered to, and Diverted by, each Compost Facility, Clean MRF, and all
other Processing Facilities used. Diversion rates shall be based upon the results of the
characterization studies described in Attachment N.
5. All Materials Diverted by Contractor. Statement showing types of materials and
quantities sold (in Tons).
6. Number of Tons of MSW Disposed during the month from both Contractor's Collection
routes and Tons of Residue Disposed from each Processing Facility used by Contractor
to process Recyclable Materials, and Co -collected Food Scraps and Green Waste for
materials from City. The report shall include backup documentation showing how the
Tons of Residue from each Facility were calculated and allocated to City. The report
shall also include the name, telephone number and e-mail address of the contact person
Attachment K
Page 1 of 5
20-407
ATTACHMENT K
Reports to be Submitted to City
at each Processing Facility that the City can contact with questions about the allocations
and/or reported Residue percentages and/or the number of Tons processed from City.
7. Narrative summary of problems encountered including scavenging, incidents of
Contamination found during on-site field Container Contamination audits, including a
listing of specific location addresses for each and actions taken with recommendations
for the City, as appropriate.
8. Summary of service complaints, with a description of the nature of the complaint and
how it was resolved. Reports shall include customer service metrics such as number of
inbound customer service calls, average time spent per call with customer, average
monthly hold time for customers, average number of rings before a call was answered,
number of instances of a customer selecting and receiving a call-back in lieu of a hold,
number of escalations to a customer service manager, and number of calls that were not
answered.
9. Summary, and type, of Customers that cancelled Recycling and/or Co -collected Green
Waste and Food Scraps service. The reasons for cancelled service must be provided
with report.
10. Recycling Coordinators' activity, showing individual interactions with residences,
including the date, a description of, and the nature of each outreach/contact effort; status
of program implementation or educational efforts; issues with recycling such as
Contamination or overflow; objections to implementing Diversion programs; and other
information as directed by the City. The results from most recent on-site field Container
Contamination audits, as described in Attachment N, shall also be included in the
Tracking Spreadsheet for each account and for each line of service used by each
account.
11. The number of warning notices issued to Customers for Contamination and the account
information associated with these notices pursuant to the protocol in Attachment B.
12. The number of warning notices issued to Customers for Non -containerization and the
account information associated with these notices pursuant to the protocol in Attachment
B.
13. Monthly number of Bulky Items Collected and Tons of bulky items delivered for repair,
re -use, re -purposing, or recycling and Tons Disposed.
14. A listing of all accounts, in Excel format, including:
a. Customer number
b. Customer name
c. Street address
d. Billing address
e. All service information, including
i. Line of service (i.e. MSW, Food Scraps, Recyclable Materials)
ii. Container inventory
iii. Container size
f. Service Contact name
Attachment K Page 2 of 5
20-408
g. Service Contact number
h. Billing Contact Name
i. Billing Contact Number
15. Number of Customers NOT participating in Diversion programs provided by Contractor
(i.e., Single Stream Recyclable Materials Collection Program, Co -collected Green Waste
and Food Scraps Diversion Program). This section of the report must also include the
total number of Carts in use for Single Stream Recyclables, Co -collected Green Waste
and Food Scrap Diversion, and MSW Collection/Disposal service.
16. Number of Residential accounts with Extra Cart service for all streams (MSW,
Recyclables, and Co -collected Green Waste and Food Scraps).
17. Number of Residential accounts participating in valet service and any other Extra service
as described in Attachment D-2.
18. Number of sharps containers distributed, collected and number of pre -paid mailer sharps
kits distributed to residents during the prior calendar month. Location in City that
Customers can pick up kits (in addition to having them mailed to homes).
19. HHW monthly report per Section 3 of Attachment B.
20. Inventory of Residential curbside Containers by size and stream
21. The number of kitchen pails distributed during the reporting period
22. A summary table of SB 1383 compliance information, including the following items:
a. The total number of Customers that have a Recyclable Materials Program, Co -
collected Green Waste/Food Scrap Diversion Program provided by Contractor.
b. The number of Customers that do not have a Recyclable Materials Program or a
Co -collected Green Waste/Food Scrap Diversion Program provided by
Contractor.
c. The number of Customers that have refused service.
23. Written record of all Hazardous Waste discovered through the Hazardous Waste
exclusion program described in Article 4 of the Agreement.
Quarterly Reports
Within 30 days after the completion of each quarter of the Calendar Year, Contractor shall
submit a Quarterly Report. The report shall provide a quarterly summary of the monthly reports
in addition to the following at a minimum:
1. Report of any Characterization Studies completed during the reporting quarter as
described in Attachment N.
2. Copies of promotional and public education materials sent during the quarter.
3. A narrative description of problems encountered, and actions taken, including efforts to
deter and prevent Scavenging and Contamination of Recyclable Materials, and Green
Attachment K Page 3 of 5
20-409
Waste/Food Scraps. The narrative is to include a description of Tons rejected for sale
after processing (type of material, tonnage), reason for rejection, and Contractor's
Disposal method for the rejected materials.
4. Recycling sales revenue by type of material marketed on a gross and net basis.
5. Tons into each composting facility, Tons of final product sold and end-users/markets for
finished compost.
6. A list and narrative description of monthly trainings held on prevention of spills of fluids
from Collection vehicles, including employee group(s) trained, the trainer that presented
each training and the topics covered.
7. Compost giveaway events — report within 30 days of event with number of participants
and quantity of mulch or compost distributed and origin of compost.
8. Shredding events (2 per year) report on number of customers served, tons of paper
diverted, and location.
Annual Reports
On or before March 15, 2022, and on or before the same date in all subsequent years of the
Term, Contractor shall submit to the City a written year-end Annual Report, in a form approved
by the City. The annual report shall include information as to timely compliance with
Contractor's Diversion obligations and MSW Collection and the following information for the
Calendar Year then ending (Note: the report to be submitted on or before March 15, 2022 shall
be for calendar year 2021 during which Contractor provided to City Residential Divertable
Materials Collection and processing services and Residential Municipal Solid Waste Collection
and Disposal services pursuant to a prior contract with the City. Data in the 2021 report is
required by City in order to comply with CalRecycle annual reporting requirements):
1. Annual SB 1383 compliance status report, with a detailed work plan to meet minimum
performance standards and earning of extension(s) set forth in Article 6 of the
Agreement.
2. A report of the previous Calendar Year's activities in the City, including a cumulative
summary of the Monthly and Quarterly Reports, and information and statistics with
respect to City's compliance with the Act.
3. A complete inventory of equipment used to provide all services, including listing of the
following items:
a. Vehicles in service
i. model year of the body for each vehicle in service
ii. model year of the chassis for each vehicle in service
iii. vehicle unit number for each vehicle in service
iv. VIN number for each vehicle in service
v. license plate number for each vehicle in service
vi. results of the average model year calculations described in Attachment F
b. Containers by size and material or waste stream type
4. Number of routes, type of route, and route hours per day.
Attachment K Page 4 of 5
20-410
5. Number of accounts and Cart information as requested in the Monthly reports.
6. Changes in Solid Waste management and Recycling/Diversion efforts, including
projections and proposed implementation dates and costs, recommended by Contractor
and recommended amendments to the City's Source Reduction and Recycling Element
based on developments in technology or additional Diversion opportunities identified by
Contractor. Contractor's recommendations with respect to compliance with the Act and
other Diversion requirements shall state the specific requirement that the implementation
of the recommendation(s) is intended to satisfy.
7. Number of sharps containers distributed, collected and number of pre -paid mailer sharps
kits distributed to residents during the prior calendar year. Samples and copies of public
education materials and web site information on proper sharps disposal distributed
during the prior year.
8. Total number of Customers that used special collection programs, including number of
Residential Customers that requested Bulky item collection, a -waste collection, u -waste
collection, Freon collection, and sharps collection/mail-back programs.
9. Total number of customers that attended compost giveaway event(s) and the number of
tons of compost distributed during the event(s).
10. Total number of customers that attended paper shredding event(s) and the number of
tons of paper collected and diverted during the event(s).
11. Total tons of Compost sold to the City during the previous year
12. SB 1383 reporting items
a. The number of total generators receiving Food Scraps/Green Waste Collection
service
b. Number of route reviews conducted
c. Number of waste characterizations conducted
d. Number of field Container Contamination audits conducted
e. Number of times notices or targeted education materials were issued by
Contractor
f. The number of notifications received from a solid waste facility operator
regarding materials Contamination
g. Number of households that do not have Food Scraps/Green Waste cart
h. Number of households that do not have Recyclable Materials cart
Attachment K Page 5 of 5
20-411
ATTACHMENT L
Performance Bond
KNOW ALL PERSONS BY THESE PRESENTS, that
hereinafter called the
PRINCIPAL, and
a corporation duly organized
under the laws of the State of having its principal place of business at
, in the State of ,
and authorized to do business as an admitted surety insurer in the State of California, hereinafter
called the SURETY, are held and firmly bound to the City of NEWPORT BEACH, a municipal
corporation in the State of California, hereinafter called the OBLIGEE, in the sum of
Dollars ($ ) lawful money of the United States, for the
payment of which, well and truly to be made, we bind ourselves, our heirs, executors,
administrators and successors, jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION IS SUCH THAT:
WHEREAS, the PRINCIPAL has entered into a Contract with the OBLIGEE for the Collection,
Transportation Processing and Diversion of Recyclable Materials, Food Scraps and Green Waste
and For the Collection, Transportation and Disposal of Municipal Solid Waste
("Contract") and said PRINCIPAL is required under the terms of said Contract to furnish a bond
of faithful performance of said Contract.
NOW, THEREFORE, if the PRINCIPAL shall well and truly perform and fulfill all of the
undertakings, covenants, terms and agreements of said Contract, and any modification thereto
made as therein provided, at the time and in the manner therein specified, then this obligation
shall become null and void, otherwise it shall be and remain in full force and virtue.
The SURETY, for value received, hereby agrees that no change, extension of time, alteration or
addition to the terms of the Contract or to the work to be performed there under, or the
specifications incorporated therein shall impair or affect its obligations and its bond, and it hereby
waives notice of any such change, extension of time, alteration or addition to the terms of the
Contract or the work or the specifications.
PROVIDED, however, that the SURETY shall not be liable (1) as respects to any obligations
related to said Contract occurring after one (1) year from (MONTH), 2021, unless this Bond is
extended, (2) as respects to PRINCIPAL'S obligation to procure a replacement performance
bond, as provided for in Section 11.03 of the Contract. This Bond may be extended after
(MONTH) 2022 in the sole discretion of the SURETY by means of a continuation certificate signed
at least ninety (90) days prior to (MONTH), 2022 and thereafter at least ninety (90) days prior to
the expiration of the Bond as extended.
In the event suit is brought upon this Bond by the OBLIGEE and said OBLIGEE is the prevailing
party, the SURETY shall pay, in addition to the sums set forth above, all costs
Attachment L
Page 1 of 2
20-412
ATTACHMENT L
Performance Bond
incurred by the OBLIGEE in such suit, including reasonable attorneys' fees to be fixed by
the court.
IN WITNESS WHEREOF, the above bounded parties have executed this instrument this
day of , 2021, the name and corporate seal of each corporate party
being hereto affixed and these presents duly signed by its undersigned representative,
pursuant to authority of its governing body.
By:
SURETY:
By:
Attorney -I n- Fact
Note: To be considered complete, both the principal and surety must sign this
performance bond. In addition, the surety's signature must be notarized and a
copy of the surety's power of attorney must be attached
20-413
ATTACHMENT M
Bond Continuation Certificate
In consideration of the premium charged,
hereby continues in force:
Bond #:
Dated:
In the amount of:
Newport Beach, for the period:
Beginning:
And Ending:
conditions of said Bond, PROVIDED that the liability of:
(NAME OF SURETY)
on behalf of the City of
subject to all terms and
shall not exceed in the aggregate the amount above written, whether the loss
shall have occurred during the term of said bond or during any continuation or
continuations thereof, or partly during said term and partly during any
continuation or continuations thereof.
20-414
Signed and Sealed:
ATTACHMENT M
Bond Continuation Certificate
Attorney -In -Fact
[ACKNOWLEDGEMENT]
(date)
20-415
Attachment N
Characterizations of Divertible Materials and MSW and Periodic Onsite Field Cart
Contamination Audit Protocols
Contractor shall conduct periodic characterizations of Divertible Materials and MSW and
periodic on-site field Contamination audits to determine the levels of Contamination in the
MSW, Recyclable Materials, and Co -collected Food Scrap/Green Waste Carts.
The characterizations are of (a) Divertible Materials that will be delivered to Processing
Facilities; and (b) MSW that will be delivered to a Disposal Site. The on-site field
Contamination audits are of Carts on routes Collecting Divertible Materials and MSW.
The purposes of the characterizations and audits are as follows:
(i) City compliance with CCR Title 14, Division 7, Chapter 12 Section 18984.5
for container Contamination minimization;
(ii) Measuring Contractor's progress toward earning the extensions of the Term
described in Section 6.06; and
(iii) Determining the quantities and types of Contamination in Divertible
Materials and MSW being Collected in the City in order to identify sources
of the Contamination and to reduce the levels of Contamination through
additional public outreach, training, and enforcement of local, state and
federal laws and regulations regarding Contamination.
The characterizations described herein are not intended to fulfill the requirements of, nor
substitute for, the procedures described in CCR Title 14 Division 7, Chapter 3 Section
17409.5 et seq. that must be performed at Processing Facilities by the owner/operator.
Table 1 provides a summary of the characterizations and audits required in each year of
the Term. The specific protocols that shall be used to conduct the characterizations and
audits are also included in this Attachment N. The City or its representative may be
present for any characterization or field Contamination audit described in this Attachment
N. Contractor shall provide no less than thirty (30) calendar days advance notice to the
City of when each characterization and audit is scheduled.
Attachment N Page 1 of 29
20-416
Attachment N
Characterizations of Divertible Materials and MSW and Periodic Onsite Field Cart
Contamination Audit Protocols
Table of Contents
1. Characterization Protocols for Divertible Materials and MSW..........................................3
1a. Characterization Protocol for Recyclable Materials Being Delivered to Clean MRF
.....................................................................................................................................................
3
Timing: ...................................................................................................................................
3
Methodology: ..........................................................................................................................
4
1 b. Characterization Protocol for Co -collected Food Scraps/Green Waste....................7
Being Delivered to Processing Facilities...............................................................................7
Timing: ...................................................................................................................................
7
Methodology: ..........................................................................................................................
7
1c. Characterization Protocol for MSW Being Delivered to Disposal Site.....................I
l
Timing: .................................................................................................................................
I I
Methodology: ........................................................................................................................
I I
l.d. Requirements if Contamination exceeds 25%: .......................................................................
14
2. Residential On-site Field Cart Contamination Audits.......................................................14
Timing: ......................................................................................................................................
14
Methodology.........................................................................................................................15
Reporting..................................................................................................................................16
3. Assessment of Phase 1 and Phase 2 Performance Metrics...........................................18
Phase1 timing: .........................................................................................................................
18
Phase2 timing: .........................................................................................................................
18
3.a. Assessment of Phase 1 Performance Metrics...........................................................18
3.b. Assessment of Phase 2 Performance Metrics...........................................................19
Attachment N Page 2 of 29
20-417
Attachment N
Characterizations of Divertible Materials and MSW and Periodic Onsite Field Cart
Contamination Audit Protocols
Table 1. Summary Table of Characterizations and On-site Field Contamination
Audits in Attachment N
1. Characterization Protocols for Divertible Materials and MSW
Note: As used herein "Residential" includes all Residences that are provided Collection
service of wheeled Carts by Contractor including, but not limited to, single family homes,
Gated Developments, HOA's and Mobile Home Parks. "Stream" refers to the type of
material: Recyclable Materials, Co -collected Food Scraps/Green Waste, and MSW.
1 a. Characterization Protocol for Recyclable Materials Being Delivered to Clean
MRF
The following protocol shall be used to conduct characterizations of Recyclable Materials
being delivered to the Clean MRF prior to processing.
Timing: Characterization studies shall be conducted two (2) times each year of the Term
(including any extensions described in Article 6) for the Recyclable Materials stream so
that each study selects a sample during the `high season' (June through September) and
during the low season (October through May) as shown in the table provided as Exhibit
N-1 to this Attachment (Note: The quarters refer to calendar year quarters as noted in the
footnote in Exhibit N.1). The first characterization shall take place beginning Quarter 1,
2022. The timing for when the characterization studies are conducted shall be staggered
so that after two (2) years, one (1) characterization shall have taken place during each
calendar quarter, with two (2) characterizations completed during the high season and
two (2) during the low season. For example, for contract year 1 (1/15/2022 —12/31/2022),
the Contractor shall conduct one (1) characterization study of Recyclable Materials in
Calendar Quarter 1, 2022 (low season) and Calendar Quarter 3, 2022 (high season). In
Attachment N Page 3 of 29
20-418
Required Frequency of
Performance Requirements
Characterizations & Audits
sector
Diversion Program
Divertible
On-site Field
Phase 1
Phase 2
Materials & MSW
Cart
Contamination
Contamination
Characterizations
Contamination
Cap by 2024
Cap by 2026
Audit
Recyclable
2x/year
4x/year
25%
15%
Materials
Co -collected Food
Scraps/Green
2x/year
4x/year
25%
15%
Waste
Residential
MSW
2x/year
4x/year
25%
15%
1. Characterization Protocols for Divertible Materials and MSW
Note: As used herein "Residential" includes all Residences that are provided Collection
service of wheeled Carts by Contractor including, but not limited to, single family homes,
Gated Developments, HOA's and Mobile Home Parks. "Stream" refers to the type of
material: Recyclable Materials, Co -collected Food Scraps/Green Waste, and MSW.
1 a. Characterization Protocol for Recyclable Materials Being Delivered to Clean
MRF
The following protocol shall be used to conduct characterizations of Recyclable Materials
being delivered to the Clean MRF prior to processing.
Timing: Characterization studies shall be conducted two (2) times each year of the Term
(including any extensions described in Article 6) for the Recyclable Materials stream so
that each study selects a sample during the `high season' (June through September) and
during the low season (October through May) as shown in the table provided as Exhibit
N-1 to this Attachment (Note: The quarters refer to calendar year quarters as noted in the
footnote in Exhibit N.1). The first characterization shall take place beginning Quarter 1,
2022. The timing for when the characterization studies are conducted shall be staggered
so that after two (2) years, one (1) characterization shall have taken place during each
calendar quarter, with two (2) characterizations completed during the high season and
two (2) during the low season. For example, for contract year 1 (1/15/2022 —12/31/2022),
the Contractor shall conduct one (1) characterization study of Recyclable Materials in
Calendar Quarter 1, 2022 (low season) and Calendar Quarter 3, 2022 (high season). In
Attachment N Page 3 of 29
20-418
Attachment N
Characterizations of Divertible Materials and MSW and Periodic Onsite Field Cart
Contamination Audit Protocols
Contract Year 2 (1/1/2023 — 12/31/2023), the contractor shall conduct one (1)
characterization study of Recyclable Materials in June of Calendar Quarter 2, 2023 (high
season) and Calendar Quarter 4, 2023 (low -season). See Exhibit N.1. for the schedule of
characterization studies that shall be conducted during the Term of the Agreement.
Methodology:
Sampling protocol: For each characterization study, loads shall be sampled only from
Recyclable Materials Collected from Residences.
Each characterization shall be done by hand (i.e. a manual sort not a mechanized sort)
and total load weights shall be established for each load sampled. One sample shall
represent the entirety of the contents of a Residential Recyclable Materials Cart. Samples
shall be collected on the regular service day of the route being sampled. Contractor shall
sample only full Residential Carts. A `full' cart is defined as seventy-five percent (75%)
or more Cart capacity utilization. Samples shall be collected using one of the following
options:
1) a box truck;
2) a flat-bed vehicle, or;
3) a dedicated side -loader during the service day for that geographic area that only
collects samples for the purposes of conducting the characterization study.
NOTE: If Contractor is using a box truck or flat-bed vehicle to collect samples and will be
removing the Cart from the premises (options 1 and 2 above), Contractor shall
immediately replace each full Residential Cart that is Collected, with a clean Cart of the
identical size, type and color. The clean replacement cart shall include a 'hang -tag'
notifying the resident that their Cart was taken by Contractor and replaced with an
identical Cart on the day of the characterization study and the reason why the Contractor
is conducting the characterization. The notice(s) shall include Contractor's telephone
number, web site address, assurances that any of the Residents' private information that
may be found in the Cart will be kept confidential by Contractor, and at least one (1) social
media method for Residents to obtain additional information, ask questions and receive
answers from Contractor concerning the characterization. The protocols described herein
for Cart removal and 'hang tags' are not required if the Contractor chooses to collect
samples using methodology 3 above (a dedicated side -loader to collect samples).
The following number of samples (i.e. full Carts) per sampled route shall be Collected:
1. For routes that service less than 1,500 generators per week the study shall
include a minimum of 25 samples.
2. For routes that service 1,500-3,999 generators per week the study shall
include a minimum of 30 samples.
3. For routes that service 4,000- 6,999 generators per week the study shall
include a minimum of 35 samples.
Attachment N
Page 4 of 29
20-419
Attachment N
Characterizations of Divertible Materials and MSW and Periodic Onsite Field Cart
Contamination Audit Protocols
4. For routes that service 7,000 or more generators per week the study shall
include a minimum of 40 samples.
The characterization study shall include samples taken from different areas in the City
along the sampled route that are representative of different neighborhoods in the City.
Samples (i.e. "full" Carts as defined herein) may be gathered on a single day or on
multiple service days over the course of the week, provided the above-described total
minimum number of samples are collected from the route. A minimum of thirty (30)
calendar days in advance of each characterization, Contractor shall provide City with a
list and/or map of Residences (with addresses) identified for sampling during the
upcoming characterization in order for City to review and make sure the samples will be
taken from different areas of the City as described herein.
Sorting protocol: All of the material collected for sampling must be transported to a
sorting area at a permitted solid waste facility where the presence of prohibited
Contaminants for the Recyclable Materials stream is measured to determine the ratio of
prohibited Contaminants present by weight. To determine the ratio of prohibited
Contaminants after the field sample selection process is complete, the Contractor shall
use the following protocol:
1. Take one sample of at least 200 pounds from the material collected from the
Recyclable Materials stream for sampling (e.g. a 200 pound sample taken from the
contents of all of the blue -lidded Carts collected for sampling).
2. The 200 -pound sample shall be randomly selected from different areas of the pile
of Recyclable Materials. Materials shall be collected for sorting from the sample
pile using a grid method and shall be hand collected. The grid method assigns an
imaginary XY axis over the load after it is dumped on the tipping floor. Four random
number pairings between 0-20 (for the long dimension of the load i.e. length) and
0-10 (for the shorter dimension of the load i.e. width) shall be generated to identify
the location of the samples on the load. Each sample shall weigh at least 50 lbs.
and shall be collected by hand in a 60- to 90 -gallon Cart.
3. For the 200 -pound sample, remove any prohibited Contaminants and sort
Recyclable Materials by commodity type. Place Contaminants and sorted
Recyclable commodities into separate Carts. Determine the weight of prohibited
Contaminants and sorted Recyclable commodities by weighing each Cart and
deducting the Cart tare weight. Note the gross weight, and net weight for
Contaminants manually using the worksheet provided in Exhibit N.2.
4. Calculate the composition percentage of both Contaminants and Recyclable
commodities in the sample. To determine the ratio of prohibited Contaminants in
the sample, divide the total net weight of prohibited Contaminants by the total
weight of the sample. To determine the ratio of Recyclable commodities in the
sample, divide the total net weight of each Recyclable commodity by the total
weight of the sample.
Attachment N
Page 5 of 29
20-420
Attachment N
Characterizations of Divertible Materials and MSW and Periodic Onsite Field Cart
Contamination Audit Protocols
Analysis: The results of the samples shall then be used to produce a characterization
that shall be used to establish the percentage Diversion and the amount of Contaminants
for Newport Beach's Recyclable Materials routes. This characterization process shall be
repeated twice annually to establish the next six -months' tonnage allocation (e.g. percent
Diverted and percent that is Contaminants) to account for seasonal fluctuations. Said
tonnage allocation shall be used in and included in the tonnage reports described in
Attachment K.
The Recyclable commodities sampled and sorted during this process shall be paper,
cardboard, newsprint, mixed paper, plastics (numbers 1 & 2), mixed plastics, non-ferrous
metals, tin, aluminum, and other Recyclable Materials as directed by the City. Exhibit N.2
includes the characterization data collection sheet that shall be used during the
characterization.
Calculating Density on Service: For purposes of determining the average densities of
components Collected, and as a metric to evaluate Collection efficiencies and Cart
capacity utilization, the Contractor shall perform the following calculation:
The net tonnage of the Recyclable Materials Collected in the sampled trucks (or
sampled Carts) shall be calculated by dividing the total tons Collected of
Recyclable Materials by the total on -service cubic yards Collected to calculate a
density for the Recyclable Materials stream.
For example, if one load sampled weighed a total of 5 Tons and was Collected
from 100 cubic yards on service, the average "material on service density" for this
stream would be 100 lbs. per cubic yard. Cubic yards on service shall be calculated
using actual route data (i.e. if one route sampled collected 100 64 -gal carts, the
yards on service for that route would be 6,400 gallons, or 31.7 cubic yards).
Reporting: Contractor shall submit a written report to the City semi-annually beginning
with Contractor's first Quarterly report in 2022. The report will summarize the results of
the characterization study, including a summary of the characterization results; the
measured weights for each commodity; the percent of each commodity found in each
sample and in aggregate; a description and photographs of the types of Contaminant
materials found during the characterization study; the average density on -service for the
materials sampled (i.e. load weights divided by yards collected); locations where the
samples were collected; and any other data requested by the City. Upon approval by the
City, the results of the characterization study shall be applied to the Tons delivered to the
Clean MRF and Tons of Contaminants delivered to the Landfill from the Clean MRF in
subsequent monthly reports and shall be in effect until the results of the next
characterization study are approved by the City.
Attachment N Page 6 of 29
20-421
Attachment N
Characterizations of Divertible Materials and MSW and Periodic Onsite Field Cart
Contamination Audit Protocols
1 b. Characterization Protocol for Co -collected Food Scraps/Green Waste
Being Delivered to Processing Facilities
The following protocol shall be used to conduct characterizations of the Residential Co -
collected Food Scraps/Green Waste. Due to the distance to the City -approved Compost
Facility in Attachment P, characterizations shall be conducted at the transfer station or
at another permitted solid waste facility in Orange County selected by Contractor and
approved by City.
Timing: Characterization studies shall be conducted two (2) times each contract year for
the Food Scrap/Green Waste stream so that each study selects a sample during the `high
season' (June through September) and during the low season (October through May) as
shown in the table provided as Exhibit N-1 to this Attachment N. (Note: The quarters refer
to calendar year quarters as noted in the footnote in Exhibit N.1). The first characterization
shall take place beginning calendar Quarter 1, 2022. The timing for when the
characterization studies are conducted shall be staggered so that after two (2) years, one
(1) characterization shall have taken place during each calendar quarter, with two (2)
characterizations completed during the high season and two (2) during the low season.
For example, for Contract Year 1 2022 (1/15/2022 — 12/31/2022), the Contractor shall
conduct one characterization study of the Co -Collected Food Scraps/Green Waste
stream in Calendar Quarter 1, 2022 (low season) and Calendar Quarter 3, 2022 (high
season). In Contract Year 2 (1/1/2023 — 12/31/2023), the Contractor shall conduct one
characterization study of the Co -Collected Food Scraps/Green Waste stream in June of
Calendar Quarter 2, 2023 (high season) and Calendar Quarter 4, 2023 (low -season). See
Exhibit N.1. for the schedule of characterization studies that shall be conducted over the
Term of the Agreement.
Methodology:
Sampling protocol: For each characterization study, loads shall be sampled only for Co -
Collected Food Scraps/Green Waste Collected from Residences.
Each characterization shall be done by hand (i.e. a manual sort not a mechanized sort)
and total load weights shall be established for each load sampled. One sample shall
represent the entirety of the contents of a Residential Co -Collected Food Scrap/Green
Waste. Samples shall be collected on the regular service day of the route being sampled.
Contractor shall sample only full Carts. For Food Scraps/Green Waste, a `full' cart is
defined as fifty percent (50%) or more Cart capacity utilization. Sampling shall be
collected using one of the following options:
1) a box truck;
2) a flat-bed vehicle, or;
3) a dedicated side -loader during the service day for that geographic area that only
collects samples for the purposes of conducting the characterization study.
Attachment N
Page 7 of 29
20-422
Attachment N
Characterizations of Divertible Materials and MSW and Periodic Onsite Field Cart
Contamination Audit Protocols
NOTE: If Contractor is using a box truck or flat-bed vehicle to collect samples and will be
removing the Cart from the premises (options 1 and 2 above), Contractor shall
immediately replace each full Residential Cart that is Collected, with a clean Cart of the
identical size, type and color. The clean replacement cart will include a `hang -tag' notifying
the resident that their Cart was taken by Contractor and replaced with an identical Cart
on the day(s) the characterization study and the reason why the Contractor is conducting
the waste characterization. The notice(s) shall include Contractor's telephone number,
web site address, assurances that any of the Residents' private information that may be
found in the Cart will be kept confidential by Contractor, and at least one (1) social media
method for Residents to obtain additional information, ask questions and receive answers
from Contractor concerning the characterization. The protocols described herein for Cart
removal and `hang tags' are not required if the Contractor chooses to collect samples
using methodology 3 above (a dedicated side -loader to collect samples).
The following number of samples (i.e. full Carts) per sampled route shall be Collected:
1. For routes that service less than 1,500 generators per week the study shall
include a minimum of 25 samples.
2. For routes that service 1,500-3,999 generators per week the study shall
include a minimum of 30 samples.
3. For routes that service 4,000- 6,999 generators per week the study shall
include a minimum of 35 samples.
4. For routes that service 7,000 or more generators per week the study shall
include a minimum of 40 samples.
The characterization study shall include samples taken from different areas in the City
along the sampled route that are representative of Co -Collected Food Scraps/Green
Waste in different neighborhoods throughout the City. Samples (i.e. full Carts) may be
gathered on a single day or on multiple service days over the course of the week provided
the above-described total samples are collected from the route. A minimum of thirty (30)
calendar days in advance of each characterization, Contractor shall provide City with a
list and/or map of Residences (with addresses) identified for sampling during the
upcoming characterization in order for City to review and make sure the samples will be
taken from different areas of the City as described herein.
Sorting protocol: All of the material collected on -route for sampling must be transported
to a sorting area at a permitted solid waste facility where the presence of prohibited
Contaminants in the Co -collected Food Scraps/Green Waste are measured to determine
the ratio of prohibited Contaminants present in each Cart by type and weight. To
determine the ratio of prohibited Contaminants the Contractor shall use the following
protocol:
1. Take one sample of at least 200 pounds from the material collected from the
Residential Co -collected Food Scraps/Green Waste stream for sampling (e.g. a
Attachment N
Page 8 of 29
20-423
Attachment N
Characterizations of Divertible Materials and MSW and Periodic Onsite Field Cart
Contamination Audit Protocols
200 -pound sample taken from the contents of all of the Food Scraps/Green Waste
Carts collected for sampling).
2. The 200 -pound sample shall be randomly selected from different areas of the pile
of Residential Food Scraps/Green Waste. Materials shall be collected for sorting
from the sample pile using a grid method and shall be hand collected. The grid
method assigns an imaginary XY axis over the load after it is dumped on the tipping
floor. Four random number pairings between 0-20 (for the long dimension of the
load i.e. length) and 0-10 (for the shorter dimension of the load i.e. width) shall be
generated to identify the location of the samples on the load. Each sample shall
weigh at least 50 lbs. and shall be collected by hand in a 60 -to 90 -gallon Cart.
3. For the 200 -pound sample, remove any prohibited Contaminants and sort
materials by the commodity types indicated in the `sorting Categories' section
below (Processing Facility Categories 1 and 2). Place Contaminants and sorted
materials into separate Carts. Determine the weight of prohibited Contaminants
and of the sorted materials by weighing each Cart and deducting the Cart tare
weight. Record the gross weight and net weight for Contaminants and Divertible
Food Scraps/Green Waste manually using the worksheet provided in Exhibit N.2.
4. Calculate the composition percentage of both Contaminants and Divertible Food
Scraps/Green Waste in the sample. To determine the ratio of prohibited
Contaminants in the sample, divide the total net weight of prohibited Contaminants
by the total weight of the sample. To determine the ratio of Divertible Food
Scraps/Green Waste in the sample, divide the total net weight of the Food
Scraps/Green Waste by the total weight of the sample.
Sorting Categories: Materials shall be sorted into the categories below and shall be
weighed:
Processing Facility Category 1 — Materials Accepted at the City -designated
Composting Facility in Attachment P
Processing Facility Category 2 - Contamination: Materials that are considered
Contamination and that are not accepted by the City -designated Composting
Facility in Attachment P.
Category 1 acceptable materials include: Food Scraps, Food Soiled Paper, Green Waste,
prunings, leaves, other yard trimmings, grass clippings and all other acceptable materials
listed under the category "Co -Collected Food Scraps/Green Waste" in Attachment B,
Section 5.
Category 2 non -acceptable material types include: MSW, Recyclable Materials, glass,
plastics, and all other material types listed as "Contamination" for Food Scraps/Green
Waste in Attachment B, Section 5.
Exhibit N-3 includes the characterization data collection sheet that shall be used during
these characterization studies.
Attachment N
Page 9 of 29
20-424
Attachment N
Characterizations of Divertible Materials and MSW and Periodic Onsite Field Cart
Contamination Audit Protocols
The Category 2 non -accepted materials shall also be separated manually and weighed
by material type (e.g. plastics, glass, metals, non-compostable packaging, etc.). The type
and weight of each non-Divertible material type shall be recorded and also carefully
photo -documented and included in the Contractor's report to the City.
Analysis: The results of the samples shall then be used to produce a characterization
that shall be used to establish the percentage Diversion and the amount of Contaminants
for Newport Beach's Co -Collected Food Scrap/Green Waste routes. This characterization
process shall be repeated twice annually to establish the next six -months' tonnage
allocation (e.g. percent Diverted and percent that is Contaminants) to account for
seasonal fluctuations. Said tonnage allocation shall be used in and included in the
tonnage reports described in Attachment K. In the case of a significant rain event,
characterizations of Co -Collected Food Scraps/Green Waste shall be delayed until dry
conditions have returned for a one (1) week period and Contractor shall immediately notify
the City of the delay, the reason for the delay and of the new characterization date(s).
Calculating Density on Service: For purposes of determining the average density of Food
Scraps/Green Waste Collected, and as a metric to evaluate Collection efficiencies and
Cart capacity utilization, the Contractor shall perform the following calculation:
The net tonnage of the Food Scraps/Green Waste Collected in the sampled trucks
(or sampled Carts) shall be calculated by dividing by the total tons Collected of
Food Scraps/Green Waste by the total on -service cubic yards Collected to
calculate a density for this stream. The results shall be recorded and reported in
the audit.
For example, if one (1) load sampled weighed a total of 5 Tons and was Collected
from 100 cubic yards on service, the average "material on service density" for this
stream would be 100 lbs. per cubic yard. Cubic yards on service shall be calculated
using actual route data (i.e. if one route sampled collected 100 64 -gal Carts, the
yards on service for that route would be 6400 gallons, of 31.7 cubic yards).
Reporting: Contractor shall submit a written report to the City semi-annually beginning
with Contractor's first Quarterly report in 2022. The report will summarize the results of
the characterization study, including a summary of characterization results; the measured
weights for each commodity or category; the percent of each commodity/category found
in each sample and in aggregate; a description and photographs of the types of
Contaminants materials found during the characterization study; the average density on -
service for the materials sampled (i.e. load weights divided by yards serviced); locations
where the samples were collected; and any other data requested by the City. Upon
approval by the City, the results of the characterization study shall be applied to the Tons
delivered to the Food Scraps/Green Waste Processing Facility and Tons of Contaminants
delivered to the Landfill from the Food Scrap/Green Waste Processing Facility in
Attachment N Page 10 of 29
20-425
Attachment N
Characterizations of Divertible Materials and MSW and Periodic Onsite Field Cart
Contamination Audit Protocols
subsequent monthly reports and shall be in effect until the results of the next
characterization study are approved by the City.
1c. Characterization Protocol for MSW Being Delivered to Disposal Site
The following protocol will be used to conduct characterization studies at the City -
designated Disposal Site for MSW.
Timing: Characterization studies shall be conducted two (2) times each Contract year for
the MSW stream so that each study selects a sample during the `high season' (June
through September) and during the low season (October through May) as shown in the
table provided as Exhibit N-1 to this Attachment. (Note: The quarters refer to calendar
year quarters as noted in the footnote in Exhibit N.1). The first characterization shall take
place beginning early in calendar Quarter 1 2022 in order to obtain a baseline MSW
characterization study prior to the full implementation of the Co -Collected Food
Scraps/Green Waste Diversion program. The timing for when the characterization studies
are conducted shall be staggered so that after two (2) years, one (1) characterization shall
have taken place during each calendar quarter, with two (2) characterizations completed
during the high season and two (2) during the low season. For example, for Contract Year
1 (1/15/2022 — 12/31/2022), the Contractor shall conduct one (1) characterization study
of MSW in Calendar Quarter 1, 2022 (low season) and Calendar Quarter 3, 2022 (high
season). In Contract Year 2 (1/1/2023-12/31/2023), the Contractor shall conduct one (1)
characterization study of MSW in June of Calendar Quarter 2, 2023 (high season) and
Calendar Quarter 4, 2023 (low -season). Please see Exhibit N.1. for the schedule of
characterization studies that shall be conducted during the Term of the Agreement.
Methodology:
Sampling protocol: For each characterization study, loads shall be sampled only from
the Residential MSW stream.
Each characterization shall be done by hand (i.e. a manual sort not a mechanized sort)
and total load weights shall be established for each load sampled. One sample shall
represent the entirety of the contents of a Residential MSW Cart. Samples shall be
collected on the regular service day of the route being sampled. Contractor shall sample
only full Carts. A `full' Cart is defined as seventy-five percent (75%) or more Cart capacity
utilization. Sample shall be collected using one of the following options:
1) a box truck;
2) a flat-bed vehicle, or;
3) a dedicated side -loader during the service day for that geographic area that only
collects samples for the purposes of conducting the characterization study.
Attachment N
Page 11 of 29
20-426
Attachment N
Characterizations of Divertible Materials and MSW and Periodic Onsite Field Cart
Contamination Audit Protocols
NOTE: If Contractor is using a box truck or flat-bed vehicle to collect samples and will be
removing the Cart from the premises (options 1 and 2 above), Contractor shall
immediately replace each full Residential Cart that is Collected, with a clean Cart of the
identical size, type and color. The clean replacement cart will include a `hang -tag' notifying
the resident that their Cart was taken by Contractor and replaced with an identical Cart
on the day(s) the characterization study and the reason why the Contractor is conducting
the MSW characterization. The notice(s) shall include Contractor's telephone number,
web site address, assurances that any of the Residents' private information that may be
found in the Cart will be kept confidential by Contractor, and at least one (1) social media
method for Residents to obtain additional information, ask questions and receive answers
from Contractor concerning the characterization. The protocols described herein for Cart
removal and 'hang tags' are not required if the Contractor chooses to collect samples
using methodology 3 above (a dedicated side -loader to collect samples).
The following number of samples (i.e. full Carts) per sampled route shall be Collected:
1. For routes that service less than 1,500 generators per week the study shall
include a minimum of 25 samples.
2. For routes that service 1,500-3,999 generators per week the study shall
include a minimum of 30 samples.
3. For routes that service 4,000- 6,999 generators per week the study shall
include a minimum of 35 samples.
4. For routes that service 7,000 or more generators per week the study shall
include a minimum of 40 samples.
The characterizations shall include samples taken from different areas in the City along
the sampled route that are representative of the City's MSW stream. Samples (i.e. full
Carts) may be gathered on a single day or on multiple service days over the course of
the week provided the above-described total samples are collected from the route. A
minimum of thirty (30) calendar days in advance of each characterization, Contractor
shall provide City with a list and/or map of Residences (with addresses) identified for
sampling during the upcoming characterization in order for City to review and make sure
the samples will be taken from different areas of the City as described herein.
Sorting protocol: All MSW collected for sampling must be transported to a sorting area at
a permitted solid waste facility where the presence of prohibited Contaminants in the
MSW are measured to determine the ratio of prohibited Contaminants present by type
and weight. To determine the ratio of prohibited Contaminants after the field sample
selection process is complete, the Contractor shall use the following protocol:
1. Take one sample of at least 200 pounds from the material collected from the
Residential MSW stream for sampling (e.g. a 200 -pound sample taken from the
contents of all of the MSW Carts collected for sampling).
2. The 200 -pound sample shall be randomly selected from different areas of the pile
of MSW. MSW shall be collected for sorting from the sample pile using a grid
Attachment N
Page 12 of 29
20-427
Attachment N
Characterizations of Divertible Materials and MSW and Periodic Onsite Field Cart
Contamination Audit Protocols
method and shall be hand collected. The grid method assigns an imaginary XY
axis over the load after it is dumped on the tipping floor. Four random number
pairings between 0-20 (for the long dimension of the load i.e. length) and 0-10 (for
the shorter dimension of the load i.e. width) shall be generated to identify the
location of the samples on the load. Each sample shall weigh at least 50 lbs. and
shall be collected by hand in a 60- to 90 -gallon Carts.
3. For the 200 -pound sample, remove any prohibited Contaminants and sort
materials by the four categories indicated below (Categories 1, 2, 3, and 4). Place
Contaminants and sorted materials into separate Carts. Determine the weight of
each category type by weighing each Cart and deducting the Cart tare weight.
Note the gross weight and net weight for each category manually using the
worksheet provided in Exhibit N.2.
4. Calculate the composition percentage of each category in the sample by dividing
the total net weight of each category by the total weight of the sample.
Sorting Categories: Materials shall be sorted into the categories below and shall be
weighed:
Category 1: Food Scrap or Green Waste materials accepted in the Co -collected
Food Scrap/Green Waste program as listed in Attachment B, Section 5.
Category 2: Recyclable Materials accepted in the Recyclable Materials Collection
program as listed in Attachment B, Section 5.
Category 3: MSW
Category 4: HHW, E -waste, U -waste, automobile parts and other materials that
should not be placed in the MSW Cart
Analysis: The results of the samples shall then be used to produce a characterization
that shall be used to assess the recoverability of materials in the MSW Cart. This
characterization process shall be repeated twice annually to assess MSW recoverability
over time.
Calculating Density on Service: For purposes of determining the average densities of
MSW Collected, and as a metric to evaluate Collection efficiencies and Cart capacity
utilization, the Contractor shall perform the following calculation:
The net tonnage of MSW Collected in the sampled trucks (or Carts) shall be
calculated by dividing by the total tons Collected of MSW by the total on -service
cubic yards Collected to calculate a density for the MSW stream and the results
shall be recorded and reported in the audit.
For example, if one (1) load sampled weighed a total of 5 Tons and was Collected
from 1000 cubic yards on service, the average "material on service density" for the
MSW stream would be 100 lbs. per cubic yard. Cubic yards on service shall be
calculated using actual route data (i.e. if one route sampled collected 100 64 -gal
Attachment N
Page 13 of 29
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Attachment N
Characterizations of Divertible Materials and MSW and Periodic Onsite Field Cart
Contamination Audit Protocols
carts, the yards on service for that route would be 6,400 gallons, or 31.7 cubic
yards).
Exhibit N-4 includes the characterization data collection sheet that shall be used for the
MSW characterization studies.
Reporting: Contractor shall submit a written report to the City semi-annually beginning
with Contractor's first Quarterly report in 2022. The report will summarize the results of
the characterization study, including a summary of the characterization results; the
measured weights for each commodity or category; the percent of each
commodity/category found in each sample and in aggregate; locations where the samples
were collected; a description and photographs of the types of Contaminants found during
the characterization study; the average on -service density for the materials sampled (i.e.
load weights divided by yards serviced); and any other data requested by the City.
1.d. Requirements if Contamination exceeds 25%:
If the sampled weight of prohibited Contaminants exceeds twenty-five percent (25%) of
the measured sample for any material type (MSW, Recyclable Materials and/or Food
Scraps/Green Waste), the Contractor shall perform the following:
(A) Notify all Residents on the sampled Collection route(s) of the requirement to
properly separate materials into the appropriate Carts. The Contractor may provide
this information by placing a notice on the Residents' Cart(s), gate, or door, and/or by
mail, e-mail, or electronic message to the Resident. All notifications distributed to
Residents must be approved by the City prior to distribution.
(B) During the quarter after the characterization where a Contamination rate of 25%
or more was found for any stream (MSW, Recyclable Materials and/or Food
Scraps/Green Waste), Contractor shall target the high -Contamination route(s) for
each such stream to be audited in the regularly -scheduled, quarterly on-site field Cart
Contamination audits described in Section 2 of this Attachment N.
2. Residential On-site Field Cart Contamination Audits
The following methodology shall be used to conduct on-site field Contamination audits of
the following materials:
• Recyclable Materials
• Co -collected Food Scraps/Green Waste
• MSW
Timing: On-site field Contamination audits shall be conducted four (4) times each
calendar year on a quarterly basis.
Attachment N Page 14 of 29
20-429
Attachment N
Characterizations of Divertible Materials and MSW and Periodic Onsite Field Cart
Contamination Audit Protocols
Methodology:
Before the on-site field Contamination audits are conducted, the Contractor shall
coordinate with the City to target specific Residential neighborhoods throughout the City.
Contractor shall target routes for audits that were found to have a 25% or higher
Contamination rate based on characterizations conducted the previous quarter as
described in Section 1 d of this Attachment N. Each quarterly on-site field Contamination
audit shall target a minimum of three percent (3%) of the Residences served by the
Contractor in the City (approximately 810 accounts per audit). The Contractor may
conduct the audit over the course of several days or complete the audit in a single day,
provided it allocates adequate staffing to complete the methodology herein in a diligent
and workmanlike fashion. Per Section 18984.5(b) of the SB 1383 regulations, audits shall
be conducted in a manner that results in Carts along all Contractor routes being audited
annually. The audits shall be conducted on Carts placed at curbside or in the alley by the
Resident for Collection by Contractor (e.g. MSW, Recyclable Materials, and Co -Collected
Food Scraps/Green Waste) before the Carts are Collected on the regular service day, in
order to observe full Carts. As of the Effective Date, Contractor's compensation in
Attachment D-1 includes fifteen (15) minutes of Contractor personnel auditing time per
Residence to gather the information described below. The specific methodology for
conducting the audit of each Cart shall be as follows:
1. Upon arrival at a Residence, note Cart serial number(s) (if the carts have a serial
number), the material -type for each Cart (MSW, Recyclable Materials, or Food
Scraps/Green Waste), the size of the Cart, and number of carts set out for service.
2. Flip lid of each Cart and note fullness of each Cart. Using a tool, prod around to
reposition materials in Cart to visually assess maximum amount of the contents of
the Cart. Open bags if most of the contents in the Cart are bagged. Note and
photograph any Contamination observed in any Cart audited. Note photo numbers
on audit sheet and if materials are bagged. Estimate percentage, by volume, of
specific Contamination materials observed (e.g. glass or plastics in Food
Scraps/Green Waste Cart; leaves in Recyclable Materials Cart; aluminum cans in
MSW Cart) and note them on audit sheet.
3. If Contaminants are observed, place a `hang tag' on the Contaminated Cart noting
the unacceptable material that was found in the Cart and provide public education
materials reminding the Customer of what materials are acceptable in which Carts
(as further described below). If non -containerization is observed (i.e. overflowing
MSW, Recyclable Materials, or Green Waste/Food Scraps, bags of materials on
the ground, etc.), place a separate `hang tag' as described in Attachment B,
Section 2.7, on the container(s).
4. Once per year, for twenty percent (20%) of the Food Scrap/Green Waste Carts
audited, place the Cart on a scale and note total weight. Record standard tare
weights based on Cart size and subtract the tare weight from the total Cart weight
to obtain the net Cart weight. Record the net Cart weight. The weighing of Food
Scrap/Green Waste carts shall take place during different quarters each year so
Attachment N
Page 15 of 29
20-430
Attachment N
Characterizations of Divertible Materials and MSW and Periodic Onsite Field Cart
Contamination Audit Protocols
that after 4 years, the Contractor will have weighed Food Scrap/Green Waste Carts
during each calendar quarter during the previous four years.
During the audits, the Contractor shall note all the following attributes on the data
collection form in Exhibit N-5:
• Fullness of each of the Carts set out for Collection (percent full — by volume)
• Percentage, by volume, of observed Contamination in each of the Carts set out
for Collection (i.e., MSW or Food Scraps in Carts for Recyclable Materials;
Recyclable Materials, Food Scraps, and/or Green Waste in MSW Cart;
Recyclable Materials and MSW in a Co -collected Food Scraps/Green Waste
Cart)
• Descriptions of specific Contaminants found in each Cart
• Participation of Residents in Co -collection program (i.e., the presence of Co -
Collected Green Waste/Food Scrap Cart set out for Collection)
• Curbside/alley placement rates (i.e., the absence of a Recyclable Materials or
Food Scraps/Green Waste Cart when an MSW Cart is present at the curb or in
the alley)
• The presence of bagged materials in Recyclable Materials and/or Food
Scraps/Green Waste Carts
• Total weight of each Cart for at least 20% of the Food Scrap/Green Waste Carts
audited (weigh using portable scale) if the annual weighing requirement occurred
during the quarterly audit that is being performed and reported
If there is any observable Contamination in any Cart, the Contractor shall place a `hang
tag' on the Cart notifying the Customer of the Contamination incident and how to correct
it. The `hang tag' shall indicate 1) the type of Contaminant(s) observed by Contractor's
staff during the audit and 2) the appropriate Cart in which the prohibited Contaminant(s)
should be placed. The notification shall include information regarding the Resident's
requirement to properly separate materials into the appropriate Carts. The City shall
approve of the `hang tag' before it is placed into use. The Contamination items and
quantities shall be noted and photographed. The photo number and Contamination
item(s) shall be noted in the field data collection sheet.
Reporting: Contractor shall submit a written report to the City quarterly beginning with
the first quarterly report in calendar year 2022 covering the January 15, 2022 — March 30,
2022 reporting period. The report shall summarize the results of the auditing program,
the number of households audited, the number of non -participants for each Diversion
program (Recyclable Materials and Food Scraps/Green Waste), Contamination incidents
for each quarterly audit, the average fullness levels of each type of Residential Cart
(MSW, Recyclable Materials and Food Scraps/Green Waste), the average weights of
Food Scraps/Green Waste Carts, the average observed Contamination levels for MSW,
Recyclable Materials and Food Scraps/Green Waste Carts, locations where on-site
Contamination audits were conducted, addresses of Residents where prohibited
Attachment N Page 16 of 29
20-431
Attachment N
Characterizations of Divertible Materials and MSW and Periodic Onsite Field Cart
Contamination Audit Protocols
Contaminants were observed, addresses where Recyclable Materials and/or Food
Scraps/Green Waste program non -participation was observed (i.e. Recyclable Materials
or Food Scraps/Green Waste Carts were not rolled out to the curb or placed in the alley
for Collection), descriptions of specific Contaminants found in each type of Cart (MSW,
Recyclable Materials and Food Scraps/Green Waste Carts), photos supporting the
findings. If the audit data shows that, during Phase 1 (January 15, 2022 — December 31,
2024 as described in Article 6), the observed Contamination levels, by volume, for any
stream (MSW, Recyclable Materials, and/or Food Scraps/Green Waste) exceed 25%,
CR&R shall submit an action plan to reduce Contamination as part of its report. If the
audit data shows that, after January 1, 2025 and for the remainder of the Agreement
Term, that the observed Contamination levels, by volume, for any stream exceed 15%,
CR&R shall submit an action plan to reduce Contamination as part of its report. The
Contamination Reduction Action Plans submitted by CR&R shall include a detailed plan
to reduce Contamination for the neighborhoods where high levels of Contamination were
observed during the audits. The plan may include presentations at neighborhood
association meetings, door-to-door canvassing by Recycling Coordinators, the
distribution of written materials to all households on the route where high levels of
contamination were encountered, targeted social media posts, etc.
Attachment N Page 17 of 29
20-432
Attachment N
Characterizations of Divertible Materials and MSW and Periodic Onsite Field Cart
Contamination Audit Protocols
3. Assessment of Phase 1 and Phase 2 Performance Metrics
In order to determine whether Contractor has earned the Phase 1 and/or Phase 2
Extension Incentive(s) described in Article 6 of the Agreement, the City will utilize the
assessments described below. A summary of the timing of Phase 1 and 2 are included
below.
Phase 1 timing; As described in Article 6 of the Agreement, the Phase 1 implementation
period will be between January 15, 2022 and December 31, 2024. The Phase 1 evaluation
period will be between December 1, 2024 and April 30, 2025. The Contractor shall be
notified of the Contamination level achieved during Phase 1, and whether or not
Contractor earned the 1 -year extension, on or before May 1, 2025.
Phase 2 timing: As described in Section 6 of the Agreement, the Phase 2 period will be
from January 1, 2025 through December 31, 2026. The Phase 2 evaluation period will be
between December 1, 2026 and April 30, 2027. The Contractor shall be notified of the
Contamination level achieved during Phase 2, and whether or not Contractor earned the
1 -year extension, on or before May 1, 2027.
3.a. Assessment of Phase 1 Performance Metrics
1. Achievement of Phase 1 Contamination Caps for Residential Streams
Attachment N
a. During calendar year 2024, using the protocols included in Subparts 1 a, 1 b
and 1c of this Attachment N, the Contractor will conduct regular, recurring
weight -based characterization studies of the following materials streams to
determine the level of Contamination and whether Contractor has met the
Contamination caps required for the Phase 1 Extension Incentive. The
characterizations shall be conducted by Contractor during calendar year
2024, as normally scheduled per this Attachment N. The Phase 1
Contamination caps (maximum allowed Contamination by weight) are
included below for each stream:
1. Recyclable Materials Phase 1 Contamination Maximum: 25%
2. MSW Phase 1 Contamination Maximum: 25%. (Note: The
25% Contamination Maximum includes the combined weight
of Recyclable Materials, Green Waste and Food Scraps found
in MSW)
3. Co -Collected Food Scraps/Green Waste Phase 1
Contamination Maximum: 25%
b. The City, or its representative, will be present for these characterization
studies to verify that the Contractor has properly conducted the
characterization studies, and to observe the calculations, weighing of
materials and the results of the characterization. Contractor shall provide
Page 18 of 29
20-433
Attachment N
Characterizations of Divertible Materials and MSW and Periodic Onsite Field Cart
Contamination Audit Protocols
no less than 30 -days advance notice to the City of the dates for each
characterization. Contractor shall submit the results of the 2024
characterizations on a quarterly basis as described in Section 1 of this
Attachment N. On or before December 1, 2024, Contractor shall submit the
aggregated results of the six characterizations conducted on the three
Residential streams during 2024 showing the total annual composite
Contamination levels for each stream for 2024. Refer to Exhibit N.6 for the
protocol for calculating the composite Contamination levels. City will notify
Contractor of its decision about which Contamination caps have been
achieved and which, if any, have not been met, on or before December 15,
2024.
c. If Contractor has failed to meet any of the Contamination caps required to
earn the Phase 1 Extension Incentive, the following process shall be
followed. For any stream (MSW, Recyclable Materials and/or Co -Collected
Food Scraps/Green Waste) where the characterization study showed that
the Contamination cap was exceeded, the Contractor may, at Contractor's
sole expense, conduct one (1) additional characterization study for each of
the failed streams on or after January 15th, 2025. The City or its
representative shall be notified by Contractor no less than 30 calendar days
in advance of the date(s) when each additional characterization is
scheduled so City representatives or staff can be present to verify that the
Contractor has properly conducted the additional characterization
study(ies), and to observe the calculations, weighing of materials and the
results of the characterization. The results of the additional characterization
shall be averaged with the 2 regularly -scheduled characterizations of the
same material stream to calculate a composite Contamination percentage
that includes the results of all three characterizations for the specific stream
(i.e. MSW, Recyclable Materials, or Co -collected Food Scraps/Green
Waste). Refer to Exhibit N.6 for the protocol for calculating the composite
Contamination levels. All subsequent, additional characterization studies for
those streams(s) exceeding the Contamination cap(s) must be completed
on or before March 30, 2025 and the results submitted to the City on or
before April 15, 2025. Example: The Contractor completed its
characterization of the Recyclable Materials (or Co -collected Food
Scraps/Green Waste or MSW) for Calendar Year 2024 and found a
Contamination rate in excess of 25% for one or more of the streams. The
Contractor could conduct one (1) additional characterization study of each
of the stream(s) that exceeded the 25% contamination cap on or before
March 30, 2025 and submit the results to the City on or before April 15,
2025.
3.b. Assessment of Phase 2 Performance Metrics
1. Achievement of Phase 2 Contamination Caps for Residential Streams
Attachment N
Page 19 of 29
20-434
Attachment N
Characterizations of Divertible Materials and MSW and Periodic Onsite Field Cart
Contamination Audit Protocols
Attachment N
a. During calendar year 2026, using the protocols included in Subparts 1 a, 1 b
and 1c of this Attachment N, the Contractor shall conduct regular recurring
weight -based characterization studies of the following material streams to
determine the level of Contamination and whether Contractor has met the
Contamination caps required for the Phase 2 Extension Incentive. The
characterizations shall be conducted by Contractor during calendar year
2026, as normally scheduled per this Attachment N. The Phase 2
Contamination caps (maximum allowed Contamination by weight) are
included below for each stream:
1. Recyclable Materials Phase 2 Contamination Maximum: 15%
2. MSW Phase 2 Contamination Maximum: 15% (Note: The
15% Contamination Maximum includes the combined weight
of Recyclable Materials, Green Waste and Food Scraps found
in MSW)
3. Co -Collected Food Scraps/Green Waste Phase 2
Contamination Maximum: 15%
b. The City, or its representative, will be present for these characterization
studies to verify that the Contractor has properly conducted the
characterization study(ies), and to observe the calculations, weighing of
materials and the results of the characterization. Contractor shall provide
no less than 30 calendar days advance notice to the City of when each
characterization is scheduled. Contractor shall submit the results of the
2026 characterizations on a quarterly basis as described in Section 1 of this
Attachment N. On or before December 1, 2026, Contractor shall submit the
aggregated results of the six characterizations conducted on the three
Residential streams during 2026 showing the total composite contamination
levels for each stream. Refer to Exhibit N.6 for the protocol for calculating
the composite contamination levels. City will notify Contractor of its decision
about which Contamination caps have been achieved and which, if any,
have not been met, on or before December 15, 2026.
c. If Contractor has failed to meet the any of the Contamination caps required
to earn the Phase 2 Extension Incentive the following process shall be
followed. For any stream where the characterization study showed that the
Contamination cap was exceeded, the Contractor may, at Contractor's sole
expense, conduct one (1) additional characterization study for each of the
failed streams. The City or its representative shall be notified by Contractor
no less than 30 calendar days in advance of the date(s) when each
additional characterization is scheduled so City representatives or staff can
be present to verify that the Contractor has properly conducted the
additional characterization study(ies), and to observe the calculations,
weighing of materials and the results of the characterization. The results of
the additional characterization shall be averaged with the results of the 2
regularly -scheduled characterizations for the same stream, to calculate a
composite Contamination percentage that includes the results of all three
Page 20 of 29
20-435
Attachment N
Characterizations of Divertible Materials and MSW and Periodic Onsite Field Cart
Contamination Audit Protocols
Attachment N
characterizations for the specific stream (i.e. MSW, Recyclable Materials,
or Co -collected Food Scraps/Green Waste). Refer to Exhibit N.6 for the
protocol for calculating the composite Contamination levels when using a
supplemental characterization study. All subsequent characterization
studies for those stream(s) exceeding the Contamination cap(s) must be
completed on or before March 30, 2027 and the results submitted to City on
or before April 15, 2027. Example: The Contractor completed its
characterization of the Recyclable Materials (or Co -collected Food
Scraps/Green Waste or MSW) for Calendar Year 2026 and found a
Contamination rate in excess of 15% for one or more of the streams. The
Contractor could conduct one (1) additional characterization study of each
of the stream(s) that exceeded the 15% contamination cap on or before
March 30, 2027 and submit the results on or before April 15, 2027.
Page 21 of 29
20-436
Attachment N
Characterizations of Divertible Materials and MSW and Periodic Onsite Field Cart
Contamination Audit Protocols
Exhibit N-1: Schedule of Characterization Studies to be Conducted During the
Term of the Agreement
Contract
YR 1
YR 2
YR 3
YR 4
YR 5
YR 6
YR 7
YR 8
YR 9**
YR 10**
Year*4
1/15/22—
1/1/23—
1/1/24—
1/1/25—
1/1/26—
1/1/27—
1/1/28—
1/1/29—
1/1/30—
/1/31-
1/1/31-
12/31/22
12/31/22
12/31/23
12/31/24
12/31/25
12/31/26
12/31/27
12/31/28
12/31/29
12/31/30
12/31/31
Q1 2022
Q2 2023
Q1 2024
Q2 2025
Q1 2026
Q2 2027
Q1 2028
Q2 2029
Q1 2030
Q2 2031
SS
(LO), Q3
(HI), Q4
(LO), Q3
(HI), Q4
(LO), Q3
(HI), Q4
(LO), Q3
(HI), Q4
(LO), Q3
(HI), Q4
RECYC
2022 (HI)
2023
2024 (HI)
2025
2026 (HI)
2027
2028 (HI)
2029
2030 (HI)
2031
�
LO
LO
LO
LO
LO
U)
Q1 2022
Q2 2023
Q1 2024
Q2 2025
Q1 2026
Q2 2027
Q1 2028
Q2 2029
Q1 2030
Q2 2031
m
GW/FS
(LO), Q3
(HI), Q4
(LO), Q3
(HI), Q4
(LO), Q3
(HI), Q4
(LO), Q3
(HI), Q4
(LO), Q3
(HI), Q4
Z
2022 (HI)
2023
2024 (HI)
2025
2026 (HI)
2027
2028 (HI)
2029
2030 (HI)
2031
L2
L2
L2
L2
L3
r
Q1 2022
Q2 2023
Q1 2024
Q2 2025
Q1 2026
Q2 2027
Q1 2028
Q2 2029
Q1 2030
Q2 2031
MSW
(LO), Q3
(2I), Q34
(LO), Q3
(2I0264
Q3
(2IO2Q74
(LO), Q3
(2I0294
(LO), Q3
(H ),3Q4
2022 (HI)
2024 (HI)
(LO),
2026 (HI)
2028 (HI)
2030 (HI)
LO
LO
LO
LO
LO
PHASE 1
PHASE 2
Key
SS = Source -Separated Recyclable Materials
GW/FS = Co -collected Green Waste and Food Scraps
MSW = Municipal Solid Waste
*The quarters referred to in this table follow the calendar year as follows:
Q1 = Jan 1 — March 31 (Except for 2022, use Jan 15 — March 31)
Q2 = April 1 — June 30
Q3 = July 1 — September 30
Q4 = October 1 — December 31
**If Contractor earns either or both extensions of the Term described in Article 6 of the
Agreement, the schedule for years 9 and/or 10 in the table above shall apply.
Attachment N
Page 22 of 29
20-437
Attachment N
Characterizations of Divertible Materials and MSW and Periodic Onsite Field Cart
Contamination Audit Protocols
Exhibit N-2: Characterization Form for Recyclable Materials Being Delivered to
Clean MRF
City
Day
Date
Time
Route
Origin
Truck Number
Total Sample Weight
Total Load Weight
Quadrate Locations X-axis
Y-axis Quadrate Number
A
Total Weight
B C D
Container Weight Net Wei ht(A-B=C) Percert
Flattened Corrugated Cardboard
Unflattened Corrugated Cardboard
Flat. Coated Corrugated Cardboard
Unflat. Coated Corrugated Cardboard
Newspaper
Office Paper
Colored Ledger Paper
Computer Paper
Mixed Paper
Clear Glass Bottles & Containers
Colored Glass Bottles & Containers
Ferrous Metals
Non Ferrous Metals
HDPE Plastic
PET Plastic
Film Plastic
Rigid Plastic
Wood
Tires
Household Hazardous
Total Recyclables
Textl le s
Remainder/Composite Plastic
Food
Yard/Landscape
RemainderIComposite Organic
Inerts
Special Waste
Remainder/Composite Metal
Flat Glass
RemaincleriComposite Glass
RemaindedComposite Paper
Mixed Residue
T ota I Conta min a nts
Total Sample Weight
Sample Diversion Percentage
Notes:
Attachment N
Page 23 of 29
20-438
Attachment N
Characterizations of Divertible Materials and MSW and Periodic Onsite Field Cart
Contamination Audit Protocols
Exhibit N-3: Characterization Form for Co -Collected Food Scraps/Green Waste
Being Delivered to Processing Facility
City
Day
Da to
Time
Route
Origin
Truck Number
Total Sample Weight
Total Load Weight
A
B
C
D
Total Weight
Container Weight
Net Weight (A -8=C)
Percentage
Category 1: Food Scraps
Category 1: Yard
Trimmings
Category 1: Food Soiled
Paper
Total Category 1
Organics
Category 2: MSW Items
Category 2: Recyclable
Items
_
Total Category 2
Contamination
Total (Cat 1 + Cat 2)
Load Diversion
Percentage
_
Nates / Notas:
Attachment N
Page 24 of 29
20-439
Attachment N
Characterizations of Divertible Materials and MSW and Periodic Onsite Field Cart
Contamination Audit Protocols
Exhibit N-4: Characterization Form for MSW
City
Day
Date
Time
Route
Origin
Truck Number
Total Sample Weight
Total Load Weight
A
B
C
D
Total Weight
Container Weight
Net Weight (A -B=C)
Percentage
Category 1: Food Scraps
Category 1: Yard
Trimmings
Category 1: Food Soiled
Paper
Total Category 1
Organics
Category 2: Recyclable
Fibers
Category 2: Recyclable
Plastics
Category 2: Recyclable
Metals
Category 2: Recyclable
Glass
Total Category 2
Recyclables
Total Category 3 MSW
Total (Cat 1 + Cat 2 +
Cat 3)
Load Recoverability
Percentage
Notes:
Attachment N
Page 25 of 29
V,
6M
Account
#
Address
g Bagged Set Out % %Divertale Green % Note type of Han Ba ed Weight
Date Bin # Bin Type for Fullness Divertable Waste/ Contamination contaminants if tag Materials (GW/FW Photo
Number(s) Notes
Service? Recyclables Food Scraps observed issued? Present? Carts)
N
O
N
0)
CU
0 -
Pi
c
E
s
U
El
20-441
Attachment N
Characterizations of Divertible Materials and MSW and Periodic Onsite Field Cart
Contamination Audit Protocols
Exhibit N6 — Protocol to Calculate Composite Characterization Contamination
Rate
Table N6.1: Form to be used to calculate composite characterization
contamination rate:
A B C D E
Scenario 1: Example Phase 1 Contamination Cap Achieved
Table N6.2: Sample calculations for if Phase 1 contamination cap is achieved
A B C D E
Total Composite
Total Composite
Annual
Supplemental
Characterization #1
Characterization #2
Annual
Characterization
Characterization
Characterization
with Supplemental
Characterization
Divertable Materials (Ibs).
154
210
364
Conta m i na ntsf I bs.1
45
65
110
Total Sample Weight (lbs.)
199
275
474
Contamination Percentage
23%
24%
23%
Scenario 1: Example Phase 1 Contamination Cap Achieved
Table N6.2: Sample calculations for if Phase 1 contamination cap is achieved
A B C D E
* Note: The numbers in the sample calculations in this Attachment N are for example only and do not
reflect the actual values of the sampling results.
Step 1. Enter weight (in lbs.) of Divertible materials from characterization #1 into Cell Al
and characterization #2 into Cell B1.
Step 2. Enter weight (in lbs.) of Contaminants from characterization #1 into Cell A2 and
characterization #2 into Cell B2.
Step 3. Sum total sample weight (in lbs.) of Divertible Materials (Al) and Contaminants
(A2) from characterization #1 into Cell A3 and sum Divertible Materials (131) and
Contaminants (132) from characterization #2 in Cell B3.
Step 4. Calculate Contamination rate in row 4 for each characterization by dividing the
Contamination weight (A2 characterization #1 and B2 for characterization #2) by the
total sample weight (A3 for characterization #1 and B3 for characterization #2). Enter
Attachment N Page 27 of 29
20-442
Total Composite
Total Composite
Annual
Supplemental
Characterization #1
Characterization #2
Annual
Characterization
Characterization
Characterization
with Supplemental
Characterization
Divertable Materials (Ibs).
154
210
364
Contaminantsflbs.l
45
65
110
Total Sample Weight (lbs.)
199
275
474
23%
24%
23%
Contamination Percentage
* Note: The numbers in the sample calculations in this Attachment N are for example only and do not
reflect the actual values of the sampling results.
Step 1. Enter weight (in lbs.) of Divertible materials from characterization #1 into Cell Al
and characterization #2 into Cell B1.
Step 2. Enter weight (in lbs.) of Contaminants from characterization #1 into Cell A2 and
characterization #2 into Cell B2.
Step 3. Sum total sample weight (in lbs.) of Divertible Materials (Al) and Contaminants
(A2) from characterization #1 into Cell A3 and sum Divertible Materials (131) and
Contaminants (132) from characterization #2 in Cell B3.
Step 4. Calculate Contamination rate in row 4 for each characterization by dividing the
Contamination weight (A2 characterization #1 and B2 for characterization #2) by the
total sample weight (A3 for characterization #1 and B3 for characterization #2). Enter
Attachment N Page 27 of 29
20-442
Attachment N
Characterizations of Divertible Materials and MSW and Periodic Onsite Field Cart
Contamination Audit Protocols
calculated contamination rate into cell A4 for characterization #1 and B4 for
characterization #2.
Step 5. Sum weight of Divertible Materials, Contaminants, and Total Sample Weight
from characterizations #1 and #2 in column C. Add cell Al plus cell B1 to calculate total
weight of Divertible Materials from both characterizations and enter sum into cell C1.
Add cell A2 plus cell B2 to calculate total weight of Contaminants from both
characterizations and enter sum into cell C2. Add cell A3 plus cell B3 to calculate Total
Sample Weight from both characterizations and enter sum into cell C3.
Step 6. Calculate Total Composite Annual Characterization Percentage in cell C4.
Dividing the combined Contamination weight for characterization #1 and #2 in cell C2 by
the total combined sample weights for characterization #1 and #2 in cell C3. Enter
composite Contamination percentage into cell C4 for characterization #1 and #2. In the
example provided above, no additional supplemental characterizations are needed as
the Contractor's Contamination percentage of 23% did not exceed the Phase 1
contamination cap of 25%. This calculation shall be done for all three streams (MSW,
Recyclable Materials and Co -Collected Food Scraps/Green Waste).
Scenario 2: Phase 1 Contamination Cap Achieved Using Supplemental
Characterizations
Table N6.3: Sample calculations if Phase 1 contamination cap is NOT met but a
supplemental characterization (Column D) is conducted and incorporated into the
averages and the cap is achieved
A B C D
* Note: The numbers in the sample calculations in this Attachment N are for example only and do not
reflect the actual values of the sampling results.
Step 1. Repeat steps 1 - 6 above to calculate Total Composite Annual Contamination
percentage in cell C4. If this amount exceeds the Contamination cap (in this case 25%),
the Contractor may conduct one (1) supplemental characterization and enter the results
into column D to calculate an updated Contamination percentage.
Attachment N Page 28 of 29
20-443
Total Composite
Total Composite
Annual
Supplemental
Characterization #1
Characterization #2
Annual
Characterization
Characterization
Characterization
With Supplemental
Characterization
Divertable Materials (Ibs).
154
210
364
150
514
ContaminantsIlbs.l
45
80
125
25
150
Total Sample Weight (lbs.)
199
290
489
175
664
23%
28%
26%
14%
23%
Contamination Percentage
* Note: The numbers in the sample calculations in this Attachment N are for example only and do not
reflect the actual values of the sampling results.
Step 1. Repeat steps 1 - 6 above to calculate Total Composite Annual Contamination
percentage in cell C4. If this amount exceeds the Contamination cap (in this case 25%),
the Contractor may conduct one (1) supplemental characterization and enter the results
into column D to calculate an updated Contamination percentage.
Attachment N Page 28 of 29
20-443
Attachment N
Characterizations of Divertible Materials and MSW and Periodic Onsite Field Cart
Contamination Audit Protocols
Step 2. Enter weight (in lbs.) of Divertible materials from supplemental characterization
into cell D1 and enter weight (in lbs.) of Contaminants from supplemental
characterization into cell D2.
Step 3. Sum total sample weight (in lbs.) of Divertible Materials (D1) and Contaminants
(D2) from supplemental characterization into Cell D3.
Step 4. Calculate Contamination percentage in cell D4 for supplemental
characterization by dividing the Contamination weight (cell D2) by the total sample
weight (cell D3). Enter calculated contamination percentage into cell D4 for
supplemental characterization.
Step 5. Add weight of composite Divertible Materials from cell C1 to Divertible Materials
from Supplemental Characterization in cell D1 and enter sum into cell E1. Add weight of
composite Contaminants from cell C2 to Contaminants from Supplemental
Characterization in cell D2 and enter sum into cell E2. Add weight of total sample from
cell C3 to Total Sample Weight from Supplemental Characterization in cell D3 and enter
sum into cell E3.
Step 6. Calculate Total Composite Annual Characterization with Supplemental
Characterization in cell E4 by dividing the combined Contamination weight for all
characterizations in cell E2 by the total combined sample weights for all
characterizations in cell E3. Enter composite Contamination percentage into cell E4 for
all characterizations. In the example provided above, with the supplemental
characterization, the Contractor's composite Contamination percentage of 23% did not
exceed the Phase 1 Contamination cap of 25%. This calculation shall be done for all
three streams to determine the Contamination percentage achieved for each stream
(MSW, Recyclable Materials and Co -Collected Food Scraps/Green Waste).
Attachment N Page 29 of 29
20-444
ATTACHMENT O
DESCRIPTION OF MATERIALS RECOVERY PROCESSING FACILITY— CLEAN MRF
Commingled Recyclables
Material Recovery Facility proposed to be used to process Single Material Separated
Recyclable Materials and Single Stream Recyclable Materials
The following facility is owned and operated by CR&R Incorporated:
Name & Location of Facility:
CR&R Intermediate Processing Center (Western Ave Clean MRF) 11291 Western
Avenue
Stanton, CA 90680
Contact: Bob Williams, Recycling Manager, 714.890.6300, ext. 2267
Solid Waste Information System (SWIS) Identification Number: 30 -AB -0013
Material to Be Processed:
• All Single Stream and Single Material Recyclable Materials
Waste Stream Origination:
Residential Single Stream Recyclable Materials Carts
Available, uncommitted processing capacity in Tons Per Day and Facilities Total permitted
Capacity in tons per day:
Contractor represents that the Western Ave Clean MRF facility has "unlimited volume by
regulation".
The facility currently operates with 2 shifts per day and has been as high as three shifts per day
with prior sort lines. The facility has been expanded to three lines and added sorters capable of
25 to 30 tons per hour.
2 shifts: 450-500 tpd
3 shifts: 700-720 tpd
This facility currently processes all single material and single stream recyclables collected from
the City of Newport Beach and has capacity for (i) future expanded recycling program
implementation and (ii) addition of neighborhoods listed in Attachment Z (if directed by City).
Current capacity reserved and guaranteed for City of Newport Beach: 10,000 tons per year
Permits:
Per Agreement Section 6, copies of all permits will be submitted to the City within 15 days of the
Effective Date of the Agreement.
Attachment O
20-445
ATTACHMENT P
COMPOST FACILITY TO BE USED FOR PROCESSING CO -COLLECTED GREEN
WASTE AND FOOD SCRAPS
Name & Location of Facility:
The following facility is owned and operated by CR&R Incorporated:
South Yuma County Landfill
19536 South Avenue 1 E
Yuma, AZ. 85365
Contact:
William Hunter, Manager, 928 341-9300
This is a fully permitted 30 -acre site on the South Yuma County Landfill. This facility currently
composts organics collected in the Yuma County, Arizona and Imperial County of California.
Capacity in tons per day:
Unlimited capacity. No tonnage restriction on Newport Beach amounts.
Material to Be Processed:
Co -collected yard trimmings and food scraps Food scrap
Current capacity reserved for Residential Food Scraps and Green Waste from Newport
Beach:
7,000 tons per year
Equipment:
Wheel loaders Caterpillar, 966 Vermeer- windrow turner, Vermeer trommel
Per Agreement Article 6, copies of all permits will be submitted to the City within 15 days of
Agreement execution.
Attachment P
20-446
Attachment Q: Map of Contractor's Entire Service Area
(as of Effective Date)
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20-448
Attachment S
Maps of Summer Saturday Service Areas in City
Route Map of Summer Saturday
Service on Balboa Peninsula to STR's and Non-STR's
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20-449
Attachment S
Maps of Summer Saturday Service Areas in City
Route Map of Summer Saturday
Service on Balboa Peninsula to STR's and Non-STR's
Northern Peninsula
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20-450
Attachment S
Maps of Summer Saturday Service Areas in City
Route Map of Summer Saturday
Service on Balboa Peninsula to STR's and Non-STR's
Northern Central Peninsula
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20-451
III
Attachment S
Maps of Summer Saturday Service Areas in City
Route Map of Summer Saturday
Service on Balboa Peninsula to STR's and Non-STR's
Central Peninsula
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20-452
Attachment S
Maps of Summer Saturday Service Areas in City
Route Map of Summer Saturday
Service on Balboa Peninsula to STR's and Non-STR's
Southern Peninsula
Hauler Route
Permanent STIR with Summer Saturday Service
Non-STR Residential Summer Saturday Service
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20-453
Ai
ATTACHMENT T
Guaranty
THIS GUARANTY (the "Guaranty") is given as of the day of
2021, by (hereafter "Guarantor"), to the CITY OF NEWPORT
BEACH, a public agency (hereafter "the City").
THIS GUARANTY is made with reference to the following facts and
circumstances:
A.
laws of the State of
is a corporation organized under the
("Contractor"). Guarantor is a
B. The City contemplates entering into a "Contract for the Collection,
Transportation, Processing and Diversion of Recyclable Materials, Food
Scraps/Green Waste and Other Materials and for the Collection, Transportation and
Disposal of Municipal Solid Waste " ("Agreement") under which Contractor is to
provide specified services to the City, its residents. A copy of this Agreement is
attached hereto and incorporated herein by this reference.
C. It is a requirement of the Agreement, and a condition to the City's
entering into the Agreement, that Guarantor guaranty Contractor's performance of
the Agreement.
D. Guarantor is providing this Guaranty to induce the City to enter into the
Agreement.
NOW, THEREFORE, in consideration of the foregoing, Guarantor agrees as
follows:
1. Guaranty of the Agreement. Guarantor hereby irrevocably and
unconditionally guarantees to the City the complete and timely performance,
satisfaction and observation by Contractor of each and every term and condition of
the Agreement, which Contractor is required to perform, satisfy or observe. In the
event that Contractor fails to perform, satisfy or observe any of the terms and
conditions of the Agreement, Guarantor will promptly and fully perform, satisfy or
observe them in the place of the Contractor. Guarantor hereby guarantees payment
to the City of any damages, costs or expenses, which might become recoverable by
the City from Contractor due to its breach of the Agreement.
2. Guarantor's Obligations Are Absolute. The obligations of the
Guarantor hereunder are direct, immediate, absolute, continuing, unconditional and
unlimited, and with respect to any payment obligation of Contractor under the
Agreement, shall constitute a guarantee of payment and not of collection, and are
not conditional upon the genuineness, validity, regularity or enforceability of the
Agreement.
3. Waivers. The Guarantor shall have no right to terminate this
Guaranty or to be released, relieved, exonerated or discharged from its obligations
under it for any reason whatsoever, including, without limitation: (1) the insolvency,
bankruptcy, reorganization or cessation of existence of the Contractor; (2) any
Page 144
20-455
ATTACHMENT T
Guaranty
amendment, modification or waiver of any provision of the Agreement; (3) the actual
or purported rejection by a trustee in bankruptcy of the Agreement, or any limitation
on any claim in bankruptcy resulting from the actual or purported termination of the
Agreement; (4) any waiver, extension, release or modification with respect to any of
the obligations of the Agreement guaranteed hereunder or the impairment or
suspension of any of the City's rights or remedies against Contractor; or (5) any
merger or consolidation of the Contractor with any other corporation, or any sale,
lease or transfer of any or all the assets of the Contractor. Without limiting the
generality of the foregoing, Guarantor hereby waives the rights and benefits under
California Civil Code Section 2819.
The Guarantor hereby waives any and all benefits and defenses under
California Civil Code Sections 2845, 2849 and 2850, including, without limitation, the
right to require the City to (a) proceed against Contractor, (b) proceed against or
exhaust any security or collateral the City may hold now or hereafter hold, or (c)
pursue any other right or remedy for Guarantor's benefit, and agrees that the City
may proceed against Guarantor for the obligations guaranteed herein without taking
any action against Contractor or any other guarantor or pledgor and without
proceeding against or exhausting any security or collateral the City may hold now or
hereafter hold. Guarantor agrees that the City may unqualifiedly exercise in its sole
discretion any or all rights and remedies available to it against Contractor or any
other guarantor or pledgor without impairing the City's rights and remedies in
enforcing this Guarantee.
The Guarantor hereby waives and agrees to waive at any future time at the
request of the City, to the extent now or then permitted by applicable law, any and all
rights which the Guarantor may have or which at any time hereafter may be
conferred upon it, by statute, regulation or otherwise, to avoid any of its obligations
under, or to terminate, cancel, quit or surrender this Guaranty. Without limiting the
generality of the foregoing, it is agreed that the occurrence of any one or more of the
following shall not affect the liability of the Guarantor hereunder: (a) at any time or
from time to time, without notice to the Guarantor, the time for Contractor's
performance of or compliance with any of its obligations under the Agreement is
extended, or such performance or compliance is waived; (b) the Agreement is
modified or amended in any respect; (c) any other indemnification with respect to
Contractor's obligations under the Agreement or any security therefore is released or
exchanged in whole or in part or otherwise dealt with; or (d) any assignment of the
Agreement is effected which does not require the City's approval.
The Guarantor hereby expressly waives diligence, presentment, demand for
payment or performance, protest and all notices whatsoever, including, but not
limited to, notices of non-payment or non-performance, notices of protest, notices of
any breach or default, and notices of acceptance of this Guaranty. If all or any
portion of the obligations guaranteed hereunder are paid or performed, Guarantor's
obligations hereunder shall continue and remain in full force and effect in the event
that all or any part of such payment or performance is avoided or recovered directly
or indirectly from the City as a preference, fraudulent transfer or otherwise,
irrespective of (a) any notice of revocation given by Guarantor or Contractor prior to
Page 2 of 4
20-456
ATTACHMENT T
Guaranty
such avoidance or recovery, and (b) payment in full of any obligations then
outstanding.
4. Term. This Guaranty is not limited to any period of time, but shall
continue in full force and effect until all of the terms and conditions of the Agreement
have been fully performed by Contractor, and Guarantor shall remain fully
responsible under this Guaranty without regard to the acceptance by the City of any
performance bond or other collateral to assure the performance of Contractor's
obligations under the Agreement. Guarantor shall not be released of its obligations
hereunder so long as there is any claim by the City against Contractor arising out of
the Agreement based on Contractor's failure to perform which has not been settled
or discharged.
5. No Waivers by City. No delay on the part of the City in exercising
any rights under this Guaranty or failure to exercise such rights shall operate as a
waiver of such rights. No notice to or demand on Guarantor shall be a waiver of any
obligation of Guarantor or right of the City to take other or further action without
notice or demand. No modification or waiver by City of any of the provisions of this
Guaranty shall be effective unless it is in writing and signed by the City and by
Guarantor, nor shall any waiver by City be effective except in the specific instance or
matter for which it is given.
6. Attorney's Fees. In addition to the amounts guaranteed under this
Guaranty, Guarantor agrees to pay actual attorney's fees and all other costs and
expenses incurred by the City in enforcing this Guaranty, or in any action or
proceeding arising out of or relating to this Guaranty, including any action instituted
to determine the respective rights and obligations of the parties hereunder.
7. Governing Law; Jurisdiction. This Guaranty is and shall be deemed
to be a contract entered into in and pursuant to the laws of the State of California
and shall be governed and construed in accordance with the laws of California
without regard to its conflicts of laws rules for all purposes, including, but not limited
to, matters of construction, validity and performance. Guarantor agrees that any
action brought by the City to enforce this Guaranty may be brought in any court of
the State of California and Guarantor consents to personal jurisdiction over it by
such courts. Guarantor appoints the following person as its agent for service of
process in California:
(Name)
(Address, City, State, Zip)
8. Severability. If any portion of this Guaranty is held to be invalid or
unenforceable, such invalidity shall have no effect upon the remaining portions of
this Guaranty, which shall be severable and continue in full force and effect.
9. Binding on Successors. This Guaranty shall inure to the benefit of
the City and its successors and shall be binding upon Guarantor and its successors,
including transferee(s) of substantially all of its assets.
Page 3 of 4
20-457
ATTACHMENT T
Guaranty
10. Authority. Guarantor represents and warrants that it has the
corporate power and authority to give this Guaranty, that its execution of this
Guaranty has been authorized by all necessary action under its Articles of
Incorporation and By -Laws, and that the person(s) signing this Guaranty on its
behalf has the authority to do so. [For personal guaranty by owner omit this Section
10.]
11. Subordination. Any claims Guarantor may have against Contractor
are hereby subordinated to any and all claims of the City against Contractor until
such time as the obligations of Contractor to the City are fully satisfied and
discharged.
12. Notices. Notice shall be given in writing, deposited in the U.S. mail,
registered or certified, first class postage prepaid, addressed as follows:
To the City: City of Newport Beach
Attention: City Manager
300 Centennial Way
Tustin, California 92780
With a copy to the City Attorney at the same address.
To Guarantor: Name
Street Address
City, State, Zip Code
The parties may change the address to which notice is to be sent by giving
the other party notice of the change as provided in this Section.
IN WITNESS WHEREOF, Guarantor has executed this Guaranty on the day
and year first above written.
By:
Name:
Title:
By:
Name:
Title:
Page 4 of 4
20-458
ATTACHMENT U
Minimum Required Duties of Recycling Coordinators
Number of Recycling Coordinators
Pursuant to Section 7.05.1-1 of the Agreement, Contractor shall provide two (2) full-time
Recycling Coordinators (herein "Coordinator(s)") for the period of January 15, 2022
through March 31, 2023. Effective April 1, 2023, Contractor shall provide one (1) full-time
Recycling Coordinator.
Summary of Duties
The Recycling Coordinator(s) shall provide waste reduction and Recycling education to
Residents; support and assist with Processing Facility characterizations described in
Attachment N; perform the on-site field Cart Contamination audits described in
Attachment N; and perform quantitative analyses of the results of such characterizations
and audits. The Coordinator(s) shall provide assistance to the City and Customers with
regard to chronic complaints, persistent billing and/or payment issues and disputes,
ongoing problems or issues with Diversion program implementation, outreach,
Contamination of Recyclable Materials and/or Food Scraps/Green Waste, and other
troubleshooting and issues as directed by the City. The Recycling Coordinator(s) shall be
responsible for completing reports to the City as required by this Agreement. The
Recycling Coordinator(s) shall assist with developing social media posts for distribution
via the City's social media channels as a means to increase participation in, and awareness
of, Diversion programs. The Recycling Coordinator(s) shall possess and demonstrate the
following skills, judgment, maturity and experience in performing the duties described
herein: (a) understand that successful resolution of complaints, billing disputes and other
problems requires excellent listening skills, diplomacy, tact, and perseverance; (b) utilize
said skills when interacting with Residents and other members of the public, City staff and
City's agents, and all other Persons; (c) demonstrate enthusiasm when explaining the
Diversion programs to Residents and other Persons; (d) demonstrate empathy and
understanding of Residents' concerns, problems, gaps in understanding about Diversion
programs and utilize creativity and inventiveness to relate information to Residents to
address the issues they express; (e) take a positive, self-starting approach to proactively
address potential problems and issues and to resolve such issues and problems; (f)
maintain clear communication with City and City's agents concerning all work performed.
Primary job responsibilities for the Recycling Coordinator positions are:
1. General Duties
a. Spend at least eighty percent (80%) of time in field work (out -of -office)
providing: outreach to individual Residents and community associations;
performing on-site field Cart Contamination audits for MSW, Recyclable
Materials, and Food Scrap/Green Waste as described in Attachment N;
providing on-site inspections; photo documentation of Collection
problems and subsequent resolution of problems; discussions with
Attachment U Page 1 of 4
20-459
ATTACHMENT U
Minimum Required Duties of Recycling Coordinators
Contractor's operations and Collection drivers, dispatchers, and other
personnel, and Residents or Authorized Customer Representatives
(owners and managers) at Customer locations that are experiencing
difficulties with Collection, billing or other issues; and other duties as
needed.
b. Have an understanding of SB 1383 and all AB 939 requirements and how
each relates to implementation of Diversion programs.
c. Conduct quantitative analyses, including development and use of
spreadsheets and databases.
d. Utilize MS Word, MS Excel, and MS PowerPoint to create and deliver
professional and informative reports that satisfy the requirements in the
Agreement and clearly report and track progress in Diversion programs,
problems with Contamination, and pinpoint source(s) of Contamination
and/or lack of Resident participation in the Diversion programs and
provide and implement solutions.
e. Participate in meetings with City to develop solutions that advance the
City's Diversion objectives.
f. Perform related support duties as required by City
g. Serve as a community resource with regard to Recycling and Diversion
programs.
h. Work in a full and transparent manner with City and its agents in
troubleshooting and implementing diversion programs including working
on and providing information on Processing Facility characterizations and
on-site field Cart Contamination audits and plans, materials processing,
materials marketed, prices received, processing costs and challenges for
sorting, processing and/or marketing recyclable materials, Compost
created from Green Waste and Food Scraps, and markets for other
products and by-products of the processing of Diverted materials.
Operational Duties
a. Make site visits and/or telephone calls to Residents that have recurring
Contamination in any stream(s) (i.e. MSW, Recyclable Materials and/or
Food Scraps/Green Waste) and/or overflowing Carts or Uncontainerized
MSW or Divertable Materials to educate the Resident about City
ordinance requirements and options for source reduction and additional
Carts.
b. Conduct site visits and/or telephone calls to Residents with repeated
service issues to troubleshoot.
c. Perform all of the required on-site field Cart Contamination audits and
follow-up items set forth in Attachment N.
d. Monitor Diversion program participation as required by Attachment B.
Attachment U Page 2 of 4
20-460
ATTACHMENT U
Minimum Required Duties of Recycling Coordinators
3. Outreach Duties
a. Assist with the door-to-door distribution of kitchen pails to Residents
during the Food Scrap/Green Waste program roll-out in 2022 and with
the distribution of kitchen pails for Residents who request them
thereafter. Engage in conversations with Residents to describe the
program and to answer questions.
b. Conduct required annual follow-up to Residents that have rejected
Recyclable Materials Carts and Collection service or Food Scrap/Green
Waste Carts and Collection service or have rejected the kitchen pail.
Provide reports to City regarding the results of these interactions to assist
the City with potential enforcement its ordinances and to tailor additional
public education and information to the concerns, questions, fears and
problems expressed by Residents.
c. Distribute the public education and outreach materials required by
Attachment N and Attachment X for routes that exceed 25%
contamination. Assist with the production of training videos for
Residents, as needed.
d. Assist with the development of social media postings for distribution via
the City's social media channels.
e. Assist with the development and distribution of targeted written
outreach materials to Residents and community associations such as
letters, flyers, brochures, infographics, etc.
f. Assist with developing webpage content regarding the Recyclable
Materials and Food Scrap/Green Waste Collection programs and other
topics as required by SB 1383 for inclusion on Contractor's and/or City's
website
g. Independently schedule and conduct meetings with Authorized Customer
Representatives at HOAs that receive Residential Cart service and
community groups to secure participation in increased recycling efforts,
including Food Scrap Diversion and to reduce Contamination.
h. Train Residents regarding implementing Diversion of Recyclable Materials
and Green Waste/Food Scraps and provide technical assistance in
developing logistics and troubleshooting at the community association
level and at individual Residences.
i. Prepare public outreach and education materials as required by the
Agreement.
j. Attend all City -sponsored special events where Recycling and/or the
environment are the theme or topic. Staff a booth, tabletop or other
appropriate method to disseminate educational materials, show videos
and provide public information on Diversion programs, preventing
Contamination, and other related topics.
Attachment U Page 3 of 4
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ATTACHMENT U
Minimum Required Duties of Recycling Coordinators
k. Plan and implement Recycling programs at all City -sponsored special
events to divert cardboard, glass, mixed paper, aluminum cans, plastic
and other beverage containers, newspaper, Food Scraps and any other
materials that can be diverted.
I. Speak and make presentations to community groups, schools,
homeowners associations, and other organizations about the City's
Diversion programs.
4. Customer Service Duties
a. Provide training, troubleshooting, education and answers to questions to
Residential Customers.
b. Proactively troubleshoot and provide Customer -friendly resolutions to
service, billing and other chronic or persistent problems in coordination
with the City staff representative(s).
c. Proactively and quickly respond to questions, problems and issues from
City staff representative and provide prompt feedback on resolution of
issues.
d. Coordinate and interface with other agencies, organizations, companies,
City and City representatives.
Attachment U Page 4 of 4
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ATTACHMENT V
Sure Close Food Scrap Container
Photo of Sure Close Container
Specifications of Sure Close Container
Volume
1.9 gallons (7.1 liters)
Weight
1.1 lbs. 0.5 k
Width 11"
Dimensions
Height 9.5"
Depth 8.5"
Hinged, stay open, odor seal, and
Lid
fly and insect seal
Dishwasher safe
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Attachment W
TRANSFER STATION OPERATING AGREEMENT
THIS TRANSFER STATION OPERATING AGREEMENT ("Agreement") is made and entered into as
of this _ day of , 2022, by and between the City of Newport Beach, a charter city and
municipal corporation ("City"), and CR&R Incorporated, a California corporation whose address is
11292 Western Avenue, Stanton, California 90680, ("Operator"). City and Operator are at times
individually referred to as "Party," and collectively as "Parties" herein.
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws of the State of
California with the power to carry on its business as it is now being conducted under the
statutes of the State of California and the Charter of City.
B. City owns a small one (1) acre transfer station at its eight point two (8.2) acre Corporation Yard
located at 592 Superior Avenue in Newport Beach and legally described and depicted in Exhibit
"A", attached hereto and incorporated by reference ("Station").
C. The Station is currently operated by Operator pursuant to the "Transfer Station Operating
Agreement" dated , 2013. The station is operated under Solid Waste Facility Permit No.
30 -AB -0361, attached hereto as Exhibit "B" and incorporated herein by reference.
D. Since 1972, this Station has been the collection point for beach, street, and park debris from
throughout the City. The Station receives small loads of beach cleaning wastes collected in City
pickup trucks. The station also receives Municipal Solid Waste and Recyclable Materials
Collected by Operator in the City of Newport Beach and in other jurisdictions. Recyclable
Materials are consolidated into larger loads and hauled to processing facilities for sorting.
Municipal Solid Waste is consolidated into large transfer trucks and transported to the Orange
County Landfill System for Disposal.
E. As the operator of the station for the past eight (8) years, Operator is familiar with the existing
conditions and operations of the Station and accepts the Station under this Agreement in its
current "AS -IS" condition.
F. The City and Operator have entered into an agreement entitled "Agreement for the Collection,
Transportation, Processing and Diversion of Residential Recyclable Materials, Food Scraps,
Green Waste and for the Collection, Transportation and Disposal of Municipal Solid Waste" dated
January 1_, 2022 ("Residential Agreement"). The Residential Agreement contemplates
Operator's continued use and operation of the Station as described in this Transfer Station
Operating Agreement.
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NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as follows:
AGREEMENT
1. Term
1.1 Effective Date
The "Effective Date" of this Agreement shall be January 15, 2022.
1.2 Initial Term
The term of this Agreement shall commence on January 15, 2022, and expire on December 31, 2029,
subject to extension as provided in Section 1.4 ("Term"). Notwithstanding the foregoing, this
Agreement shall automatically terminate, without further action by the Parties, upon the expiration or
termination of the Residential Agreement.
1.3 City's Option to Extend Term
City may, in its sole discretion, extend the Term for two (2) one-year periods to match the term of the
Residential Agreement, which has the same initial eight (8) year term and may be extended pursuant
to provisions in the Residential Agreement. In such event, City shall give Operator written notice of
such extension a minimum of six (6) months prior to the end of the initial or extended Term.
2. Compensation
2.1 Annual Compensation
Operator shall pay City Four Hundred Seventy -Two Thousand, Eight Hundred Dollars ($472,800) per
calendar year ("Compensation") during the term of this Agreement in exchange for the right to operate
the Station under this Agreement. This annual amount shall be paid in twelve (12) equal monthly
installments payable on or before the fifteenth (15th) day of each month. The Compensation shall be
adjusted each July 1, with the first adjustment July 1, 2022 (to coincide with the compensation
adjustment under Section 12.03 of the Residential Agreement). The Compensation shall be adjusted
by the change in the Consumer Price Index for All Items except Food, Energy and Fuel in Los
Angeles -Long Beach -Anaheim, CA, all urban consumers, not seasonally adjusted
(CUURS49ASOL1 E) ("CPI"), or two and one half percent (2.5%), whichever is less. The calculation
shall be performed pursuant to the protocols in Attachment J of the Residential Agreement for
calculation of changes to the CPI.
2.2 Place for Payment of Compensation
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All payments of Compensation shall be made in lawful money of the United States of America and shall
be paid to City online at www.newportbeachca.gov, in person or by United States' mail, or overnight mail
service, at the Cashier's Office located at 100 Civic Center Drive, Newport Beach, CA 92660, or to such
other address as City may from time -to -time designate in writing to the Operator. The Operator assumes
all risk of loss and responsibility for late charges and delinquency rates if payments are not timely
received by the City regardless of the method of transmittal.
2.3 Late Charges
A ten percent (10%) late charge, or the maximum rate allowable under State law, shall be added to all
payments due but not received by City within ten (10) calendar days following the due date. In addition,
all unpaid amounts shall accrue at a delinquency rate of one and a half percent (1.5%) per month or any
portion of a month until paid in full.
3. Operator's Duties
3.1 Compliance with Solid Waste Facility Permit No. 30 -AB -0361 and Applicable Laws
Operator, at its own cost, shall operate the Station in strict compliance with all the conditions,
requirements, restrictions, and/or regulations provided in Solid Waste Facility Permit No. 30 -AB -0361,
and any amendments thereto. Operator, at its own cost, shall operate the Station in compliance with
all applicable laws, rules, policies, and regulations. Failure to strictly comply with Solid Waste Facility
Permit No. 30 -AB -0361 or any applicable law, rule, policy, or regulation may result in the immediate
termination of this Agreement by City.
3.2 Supervisor Requirements
Operator shall provide a qualified on-site supervisor at the Station during all hours of operation to
ensure a safe, orderly, and legal operation at the Station. The supervisor's duties shall include, but
not be limited to, the following:
(A) Observe all dumping activity; vehicles shall not dump without the supervisor present;
(B) Log dumping activity throughout the day, recording time, vehicle number, gross, tare, and
net weight (where applicable), source (residential, commercial, or other [e.g., beach or park
containers]);
(C) Assign vehicles to appropriate stalls for dumping;
(D) Ensure safe operation on the Station deck and surrounding area, and ensure personnel are
using required safety gear;
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(E) Clean up the Station deck after each truck dumps to control litter;
(F) Pick up litter in the Transfer Station area and lower yard, including the fence line;
(G) Clean pits as necessary when trailers are moved to control and mitigate litter;
(H) Coordinate with the transfer drivers to ensure a sufficient number of empty trailers to handle
the flow of Municipal Solid Waste, Recyclable Materials and Food Scraps/Green Waste;
(1) Using a semi tractor, pull loaded trailers out of dumping pits and stage for transfer drivers;
using a semi tractor or yard tractor, spot empty trailers in dumping pits;
(J) Use water hose to reduce dust during dumping operations and to clear debris from the top
of loaded trailers when they are being pulled out of the pits;
(K) Ensure operations are being performed as required by Solid Waste Facility Permit No. 30 -
AB -0361, as it may be amended, and that required records and logs are being compiled and
kept up to date on a daily basis;
(L) Direct traffic as needed in lower yard area to allow vehicle movement;
(M) Report any operational issues to assigned City contact; and
(N) Maintain and repair the Station to ensure its continued operation and compliance with Solid
Waste Facility Permit No. 30 -AB -0361 and applicable law.
3.3 Standard of Care, Workmanship, Supervision
(A) The Operator shall provide a work force sufficient to operate and maintain the Station
under this Agreement and all members of the work force shall be hired in compliance with State
and Federal law.
(B) All work under this Agreement shall be performed by competent and trained employees.
Operator represents that it possesses the professional and technical personnel required to
perform the services required by this Agreement, and that it will perform all services in a
manner commensurate with professional industry standards. All services shall be performed by
qualified and trained personnel who are not employed by City, nor have any contractual
relationship with City. Operator hereby certifies that all work performed under this Agreement
will conform to the requirements of this Agreement and all applicable federal, state and local
laws and the professional standard of care.
(C) The work force shall include thoroughly skilled, experienced, and competent supervisors
who shall be responsible for adherence to the terms of this Agreement by directly overseeing
the Station operations. All supervisory personnel must be able to communicate effectively in
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English (both orally and in writing). An order given to supervisory personnel shall be deemed
delivered to the Operator. Operator shall provide City with a designated supervisors name(s)
and shall notify the City of the name of any successor within ten (10) calendar days of change
in supervision.
(D) All Operator personnel working in the City shall be neat in appearance and in uniform.
(E) Operator represents and warrants to City that it has, shall obtain, and shall keep in full
force in effect during the term hereof, at its sole cost and expense, all licenses, permits,
qualifications, insurance, and approvals of whatsoever nature that is legally required of
Operator to practice its profession. Operator shall maintain a City of Newport Beach business
license during the term of this Agreement.
(F) Whenever Operator has knowledge that any actual or potential labor dispute is delaying
or threatens to delay the timely performance of this Agreement, Operator shall immediately give
notice to City of all relevant information. In the event of a labor dispute which delays or impacts
the performance of work under this Agreement, City reserves the right to use its own forces or
to contract with others to perform the work at the Station. City and Operator agree that it will be
deemed a breach of this Agreement if Operator cannot provide full services at the Station
seven (7) calendar days after services have been impacted or delayed as a result of a labor
dispute.
(G) Operator shall attend meetings, special events and public meetings as requested by the
City. Operator shall provide all necessary and appropriate personnel to attend each meeting
and any requested promotional material so that the topics on the agenda can be addressed
fully and completely.
(H) At the termination or expiration of this Agreement, Operator shall deliver the Station to
the City in the same or better condition as existed at the Effective Date of this Agreement.
3.4 No Storage of Waste Material
Operator shall not store, nor permit others to store, Municipal Solid Waste, Recyclable Materials, Food
Scraps or Green Waste at the Station overnight, except as allowed under this section. All Municipal
Solid Waste and Divertible Materials shall be transferred and transported daily by Operator, at its sole
cost, to an appropriate facility as required by applicable law and Solid Waste Facility Permit No. 30 -
AB -0361, and any amendments thereto. Clean, dry Recyclable Materials may remain at the Station
for a period not to exceed twenty-four (24) hours.
4. Priority to Material Generated within City of Newport Beach
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The Operator shall give first priority to the receipt and transfer of all Municipal Solid Waste, Recyclable
Materials and Food Scraps/Green Waste collected pursuant to the Residential Agreement including
abandoned items and City litter container Municipal Solid Waste and Recyclable Materials collected
by City crews and third -party vendors under contract with the City. Second priority shall be given to
other Municipal Solid Waste, Recyclable Materials, Food Scraps and Green Waste generated within
the City of Newport Beach. To the extent there is excess capacity, beyond that needed for the City of
Newport Beach, the Operator may unload and transfer Municipal Solid Waste and Divertible Materials
generated from other jurisdictions.
5. Hours of Station Operation
The Station may operate seven (7) days per week, Monday through Sunday. Hours of operation for
material acceptance and transfer are 6:30 a.m. to 4:00 p.m. Monday through Friday, 7:00 a.m. to 4:30
p.m. on Saturday and 7:00 a.m. to 11:00 a.m. on Sunday. Sunday operations will be limited to only
the transfer of Municipal Solid Waste, Recyclable Materials and/or Food Scraps/Green Waste from the
transfer station to a materials recycling facility such as CR Transfer or to be landfilled. No Municipal
Solid Waste will be received at the Station on Sundays. In addition, Sunday operations will be limited
to a maximum of fifteen (15) days per calendar year.
6. Daily Capacity Limit
At present, Solid Waste Facility Permit No. 30 -AB -0361 authorizes the receiving of up three hundred
(300) tons of materials per day at the Station, subject to limitations, if any, provided in the permit.
7. Vehicle Specifications.
7.1 Vehicle Markings
The vehicles used pursuant to this Agreement shall have the name of the Operator, the Operator's
local telephone number, and a unique vehicle identification number for each vehicle prominently
displayed on all vehicles.
7.2 Number of Vehicles
Operator shall, at all times, provide such number of vehicles and such equipment as will be adequate
for the services authorized under this Agreement.
7.3 DMV and BIT Inspections
All vehicles utilized by Operator in the performance of this Agreement shall be registered with the
California Department of Motor Vehicles. All vehicles shall pass the required periodic California
Highway Patrol biennial inspection of the terminals ("BIT"). Within fifteen (15) calendar days of the
BIT inspection, Operator shall provide records from all of the terminal(s) responsible for the
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maintenance and repair of equipment used in the City. All vehicles and equipment used by Operator
in the performance of this Agreement shall be subject to inspection by the City upon twenty-four (24)
hours' notice.
7.4 Vehicle Maintenance
All vehicles shall be properly maintained, kept clean and in good repair, and shall be uniformly painted.
Operator agrees to replace or repair to City's satisfaction, any vehicle that City determines to be of
unsightly appearance, leaking, or in unsatisfactory operating condition.
7.5 Drivers
All drivers employed by Operator and operating equipment in the City shall be properly licensed for
the class of vehicle they drive, enrolled in the Department of Motor Vehicles Employee Pull Notice
("EPN") program, and abide by all State and federal regulations for driver hours and alcohol and
controlled substances testing.
7.6 Spills
Each vehicle shall be so constructed and used in a manner so that no Municipal Solid Waste,
Recyclable Materials, Food Scraps, Green Waste„ oil, grease or other material will blow, fall, or leak
out of the vehicle. All materials shall be transported by means of vehicles which are covered in such a
manner as to securely contain all Municipal Solid Waste, Recyclable Materials and Food
Scraps/Green Waste and to prevent such materials from projecting, blowing, falling or leaking out of
the vehicles. Any Municipal Solid Waste, Recyclable Materials and/or Food Scraps/Green Waste
dropped or spilled in transfer or transportation shall be immediately cleaned up by Operator. A broom,
shovel and all other industry -standard equipment shall be carried at all times on each vehicle for this
purpose. Operator shall use all available industry best practices to prevent spills of fuel and fluids (such
as oil, hydraulic fluid, brake fluid, etc.) on streets. A liquid spill kit shall be carried at all times on each
Collection vehicle for this purpose. If such a spill occurs, Operator shall immediately notify the City
(including the Director of Public works or his/her designee and the City's NPDES Coordinator) and all
proper regulatory authorities of said spill and release of fluids. City shall be notified no later than one (1)
hour after the spill. Operator shall clean, at Operator's expense, the spilled fluids in coordination with,
and to the satisfaction of, City and applicable regulatory agencies. Upon a release of such fluids, the
driver shall immediately park the vehicle and it shall remain parked until the leak is repaired. In such
event Operator shall not park the leaking vehicle within two hundred (200) feet of a storm drain and shall
utilize absorbent material, sand bags or other appropriate means to prevent leaking fluids from entering
storm drains. In the event of any type of spill or other emergency, Operator shall be responsible for
securing the immediate safety of the vehicle driver, all other employees of Contractor and all persons and
property in the surrounding vicinity. As of the Effective Date of this Agreement, Operator shall initiate and
provide continuous (at least monthly) training of all Station employees, transfer drivers and all applicable
management employees in the proper handling of any spills to prevent such spills from entering storm
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drains or otherwise creating environmental damage or damage to persons, property, wildlife, animals,
vegetation, the ocean, waterways, or releases to the atmosphere. Such trainings shall include a
simulation of a spill with transfer drivers physically performing the appropriate actions and activities to
contain spilled fluid(s), at least one (1) time each year. Operator shall not transfer loads from one
vehicle to another on any public street or private roadway, unless it is necessary to do so because of
mechanical failure or damage to a vehicle which renders it inoperable, and the vehicle cannot be
towed. A communications device such as a two-way radio or a cellular telephone shall also be
maintained on each vehicle at all times.
7.7 No Equipment Storage in Public Right -of -Way
Operator shall not store any vehicle or equipment on any public street, public right-of-way, or other
public property (other than the Station) in the City of Newport Beach without obtaining a Temporary
Street Closure Permit from the Public Works Department and prior written consent of the City.
7.8 Vehicle Removal from Service
Should the City at any time give written notification to Operator that any vehicle does not comply with the
standards hereunder, the vehicle shall be promptly removed from service by Operator and not used
again until inspected and authorized in writing by the City.
7.9 Driver Citations
All vehicles used in performance of this Agreement shall be maintained and operated in conformance
with all applicable laws, statutes, rules, and regulations. The issuance of four (4) or more vehicle,
driver/operator, or other citations for moving violations (including but not limited to, exceeding the
speed limit, unsafe speed, unsafe driving, reckless driving, running a red light, and unsafe turns) that
relate in any way to operations performed pursuant to this Agreement within a twelve (12) month
period shall be deemed to be a breach of this Agreement.
7.10 City Station Equipment
City owns a yard mule, tractor, and backhoe that Operator may use at the Station for Station operations.
Operator is fully responsible for providing all proper maintenance of, and repairs to, this equipment. City
will not replace, repair, or maintain the equipment and Operator remains fully responsible for providing all
equipment, and associated maintenance and repairs, necessary to operate the Station and its
equipment.
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10. City Fueling Station
City benefits from the sale of compressed natural gas ("CNG") at the CNG fueling station adjoining the
Station. Operator agrees to purchase CNG from this fueling station for any equipment used under this
Agreement that is powered by CNG, with this fueling station and Operator's facility on Lampson in
Garden Grove as the primary facilities for fueling and of Operator's CNG -using equipment used in the
performance of this Agreement. At present, Operator intends to use diesel powered equipment at the
Station. All vehicles and equipment used at the Station and for transport of Municipal Solid Waste,
Recyclable Materials and Food Scraps/Green Waste shall operate in full compliance with the
requirements of the California Air Resources Board and the South Coast Air Quality Management
District's rules and regulations including, but not limited to, Rule 1193.
11. Administration
This Agreement will be administered by the Public Works Department. The Director of Public Works,
or his/her designee, shall be the Project Administrator and shall have the authority to act for City under
this Agreement. The Project Administrator or his/her authorized representative shall represent City in
all matters pertaining to the services to be rendered pursuant to this Agreement.
12. Documents
12.1 Reports
Operator shall assist the City, providing data as needed for reports due to CalRecycle under AB 939, AB
341, AB 1826, SB 1383 and similar legislation.
12.2 Monthly Reports
Within thirty (30) calendar days of the end of each calendar month, Operator shall submit to City for
the preceding month reports setting forth, at a minimum, the following information for services
provided and tonnage processed under this Agreement:
(A) Any complaints (e.g., written or oral comments received by Operator expressing
dissatisfaction with Operator or any services provided by Operator that relate in any manner to
this Agreement);
(B) The total amount (in tons) of Municipal Solid Waste, Recyclable Materials, Food Scraps,
Green Waste, and Commingled Food Scraps/Green Waste which Operator received and
transferred at the Station during the reportable month divided between material generated
within the City of Newport Beach and material from other jurisdictions (to the extent there is
excess capacity); and
(C) Any other information that may be requested by City from time -to -time.
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12.3 Quarterly Reports
In addition, on a quarterly basis, Operator shall submit to City any equipment, terminal safety,
employee safety and inspection reports, citations, records and other documents for all Operator's
operations and activities that relate in any way to this Agreement including, but not limited to, periodic
California Highway Patrol biennial terminal inspection reports; vehicle citations; California Highway
Patrol Incident reports; citations issued to drivers/operators; other citations issued to the Operator or
its employees; California Occupational Safety and Health Administration 300 reports; and Lead
Environmental Agency inspection/ compliance reports.
Each quarterly report and accompanying reports/citations shall be submitted on or before the thirtieth
(30th) day of the month following the end of the quarter (i.e., report due April 30 for first quarter after
the Effective Date).
12.4 Report Submittal
Monthly and quarterly reports shall be submitted electronically to the City in a format approved by the
City and also submitted in hard copy to:
Director of Public Works
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92658
12.5 Audits
City has the right to audit the Operator at any time to verify that Operator is in compliance with the
terms and conditions of this Agreement including, but not limited to, the auditing of facility Recycling
and other Diversion records, Diversion statistics, landfill rate increases, vehicle records and safety
records. Should an audit conducted or authorized by the City disclose that Diverted or Disposed
tonnage was inaccurately reported to the City by more than two percent (2%), Operator shall
reimburse the City's audit costs.
12.6 Report/Audit Disclosure/Reports As Public Records
No report, information or other data given to or prepared or assembled by Operator pursuant to this
Agreement may be made available by Operator to any individual or organization without prior approval by
City unless such disclosure is required by law or court proceedings. Notwithstanding the foregoing, the
reports, records, and other information submitted (or required to be submitted) by Operator to City are
public records within the meaning of that term in the California Public Records Act, Government Code
Section 6250 et seq. Unless a particular record is exempted from disclosure by the California Public
Records Act, it must be disclosed to the public by the City upon request.
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13. Independent Contractor
It is understood that Operator is an independent contractor under this Agreement and Operator is not an
agent or employee of City. The manner and means of conducting the work at the Station are under the
control of Operator, except to the extent they are limited by statute, rule or regulation and the express
terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Operator
or any of Operator's employees or agents, to be the agents or employees of City. Operator shall have
the responsibility for and control over the means of performing the work at the Station, provided that
Operator is in compliance with the terms of this Agreement.
14. Cooperation
Operator agrees to work closely and cooperate fully with City's designated Project Administrator and any
other agencies that may have jurisdiction or interest in the work to be performed. City agrees to
cooperate with the Operator.
15. City Policy
Operator shall discuss and review all matters relating to policy and direction with City's Project
Administrator in advance of all critical decision points in order to ensure the work at the Station
proceeds in a manner consistent with City goals and policies.
16. Hazardous Waste
16.1 Hazardous Waste/Hazardous Substance Definition
For purposes of this Agreement, the terms "Hazardous Waste" and "Hazardous Substance" include,
without limitation, any material or substance which is: (i) petroleum or oil or gas or any direct or
derivate product or byproduct thereof; (ii) defined as a "hazardous waste," "extremely hazardous
waste" or "restricted hazardous waste" under Sections 25115, 25117 or 25122.7, or listed pursuant to
Section 25140, of the California Health & Safety Code, Division 20, Chapter 6.5 (Hazardous Waste
Control Law); (iii) defined as a "hazardous substance" under Section 25316 of the California Health &
Safety Code, Division 20, Chapter 6.8 (Hazardous Substance Account Act); (iv) defined as a
"hazardous material," "hazardous substance," or "hazardous waste" under Sections 25501(p), (q), and
(r) and 25501.1 of the California Health & Safety Code, Division 20, Chapter 6.95 (Hazardous
Materials Release Response Plans and Inventory); (v) defined as a "hazardous substance" under
Section 25281 of the California Health & Safety Code, Division 20, Chapter 6.7 (Underground Storage
of Hazardous Substances); (vi) "used oil" as defined under Section 25250.1 of the California Health
and Safety Code; (vii) asbestos; (viii) listed under Chapter 11 of Division 4.5 of Title 22 of the
California Code of Regulations, or defined as hazardous or extremely hazardous pursuant to Chapter
10 of Division 4.5 of Title 22 of the California Code of Regulations; (ix) defined as waste or a
hazardous substance pursuant to the Porter -Cologne Act, Section 13050 of the California Water
Code; (x) designated as a "toxic pollutant" pursuant to the Federal Water Pollution Control Act, 33
U.S.C. Section 1317; (xi) defined as a "hazardous waste" pursuant to the Federal Resource
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Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq. (42 U.S.C. § 6903); (xii) defined as a
"hazardous substance" pursuant to the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. Section 9601, et seq. (42 U.S.C. § 9601); (xiii) defined as "Hazardous Material"
pursuant to the Hazardous Materials Transportation Act, 49 U.S.C. Section 5101, et seq.; (xiv) defined
as such or regulated by any "Superfund" or "Superlien" law; (xv) any asbestos or asbestos -containing
material; (xvi) any chemical which the Governor has identified as a chemical known to the State to
cause cancer or reproductive toxicity pursuant to California Health & Safety Code Section 25249.8;
(xvii) or any other federal, state or local law, statute, ordinance, code, rule, regulation, order or decree
regulating, relating to, or imposing liability or standards of conduct concerning Hazardous Materials
and/or oil wells and/or underground storage tanks and/or pipelines, as now, or at any time hereafter, in
effect. The term "Hazardous Waste" shall also include any and all amendments to the above -
referenced statutory and regulatory provisions made before or after the date of execution of this
Agreement. Where there is a conflict in the definitions employed by two or more agencies having
jurisdiction over Hazardous Waste, the term "Hazardous Waste" shall be construed to have the
broader, more encompassing definition.
16.2 General
Operator shall be aware of, and comply with, all laws, regulations and the Station Solid Waste Facility
Permit issued by CalRecycle, relating to the handling and transportation of Hazardous Substances, as
defined in this Agreement, including those requiring training and documentation. If Operator observes
any substances which it believes to contain a Hazardous Substance it shall, as appropriate for the
material found, immediately notify the appropriate regulatory agencies, and the City.
16.3 Operator to Segregate and Dispose
In the event Operator inadvertently transfers or transports any Hazardous Substance, Operator shall
segregate Hazardous Substance, and shall arrange for its transport and disposal to a properly
permitted recycling, treatment or disposal facility of Operator's choosing at Operator's sole expense.
Operator shall be solely responsible for the transport and disposition of all Hazardous Substance that
is received at the Station by Operator. Operator will cooperate with City attempts to locate and collect
the costs of such transport and disposition from the responsible party.
16.4 Operating Procedures and Employee Training
Operator shall establish, implement and maintain written operating procedures designed to ensure
Operator's utilization of techniques and industry best practices for cities of the size and nature of the
City of Newport Beach, to handle and dispose of Hazardous Substance and to ensure Operator's
compliance with the provisions of this Section. Operator shall establish, implement and maintain an
employee training program and shall ensure that employees responsible for the identification of
Hazardous Substance are fully trained. Operator shall maintain documentation which describes the
training received by its employees.
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17. Definitions
Any term not defined in this Agreement shall have the same meaning as provided in the Residential
Agreement.
18. Insurance Requirements
18.1 Provision of Insurance
Without limiting Operator's indemnification of City, and on or before the Effective Date, Operator shall
obtain, provide and maintain at its own expense during the term of this Agreement, policies of
insurance of the type and amounts described below and in a form satisfactory to City. Operator
agrees to provide insurance in accordance with requirements set forth here. If Operator uses existing
coverage under the Residential Agreement to comply and that coverage does not meet these
requirements, Operator agrees to amend, supplement or endorse the existing coverage.
18.2 Acceptable Insurers
All insurance policies shall be issued by an insurance company currently authorized by the Insurance
Commissioner to transact business of insurance in the State of California subject to the jurisdiction of
the California Insurance Commissioner, an assigned policyholders' Rating of A (or higher) and
Financial Size Category Class VIII (or larger) in accordance with the latest edition of A.M. Best's
Insurance Reports , unless otherwise approved by the City's Risk Manager.
18.3 Coverage Requirements
(A) Workers' Compensation Insurance. Operator shall maintain Workers' Compensation
Insurance, statutory limits, and Employer's Liability Insurance with limits of at least one million
dollars ($1,000,000) each accident for bodily injury by accident and each employee for bodily
injury by disease in accordance with the laws of the State of California, Section 3700 of the
Labor Code.
Operator shall submit to City, along with the certificate of insurance, a Waiver of
Subrogation endorsement in favor of City, its elected or appointed officials, agents,
officials, employees and volunteers.
(B) General Liability Insurance. Operator shall maintain commercial general liability
insurance and, if necessary, umbrella liability insurance, with coverage at least as broad as
provided by Insurance Services Office form CG 00 01, in an amount not less than five million
dollars ($5,000,000) per occurrence, ten million dollars ($10,000,000) general aggregate. The
policy shall cover liability arising from premises, operations, products -completed operations,
personal and advertising injury, and liability assumed under an insured contract (including the
tort liability of another assumed in a business contract) with no endorsement or modification
limiting the scope of coverage for liability assumed under a contract.
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(C) Automobile Liability Insurance. Operator shall maintain automobile insurance at least as
broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage
for all activities of Operator arising out of or in connection with Work to be performed under this
Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an
amount not less than ten million dollars ($10,000,000) combined single limit each accident.
(D) Pollution Liability Insurance. Operator shall maintain a policy providing Operator's
pollution liability ("CPL") coverage with a total limit of liability of no less than five million dollars
($5,000,000) per loss and ten million dollars ($10,000,000) in the aggregate per policy period
dedicated to this operation. The CPL shall be obtained on an occurrence basis for a policy
term inclusive of the entire period of operation. If all or any portion of CPL coverage is
available only on a claims -made basis, then insurance must be maintained and evidence of
insurance must be provided for at least five (5) years after termination/expiration of this
Agreement or any amendments thereto. If coverage is canceled or non -renewed, and not
replaced with another claims -made policy form with a retroactive date prior to this Agreement's
effective date, the Operator must purchase an extended period coverage for a minimum of five
(5) years after termination/ expiration of this Agreement. The CPL policy shall include coverage
for cleanup costs, third -party bodily injury and property damage, including loss of use of
damaged property or of property that has not been physically injured or destroyed, resulting
from pollution conditions caused by contracting operations. Coverage as required in this
paragraph shall apply to sudden and non -sudden pollution conditions resulting from the escape
or release of smoke, vapors, fumes, acids, alkalis, toxic chemicals, liquids, or gases, waste
materials, or other irritants, contaminants, or pollutants. The CPL shall also provide coverage
for transportation and off -Site disposal of materials. The policy shall not contain any provision
or exclusion (including any so-called "insured versus insured" exclusion or "cross -liability"
exclusion) the effect of which would be to prevent, bar, or otherwise preclude any insured or
additional insured under the policy from making a claim which would otherwise be covered by
such policy on the grounds that the claim is brought by an insured or additional insured against
an insured or additional insured under the policy.
18.4 Other Insurance Requirements
The insurance policies are to contain, or be endorsed to contain, the following provisions:
(A) Waiver of Subrogation. Without limiting the generality of Section 17.3 above, all
insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to
waive subrogation against City, its elected or appointed officers, agents, officials, employees
and volunteers or shall specifically allow Operator or others providing insurance evidence in
compliance with these requirements to waive their right of recovery prior to a loss. Operator
hereby waives its own right of recovery against City, and shall require similar written express
waivers from each of its subconsultants.
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20-477
(B) Additional Insured Status. All liability policies including general liability, excess liability,
pollution liability, and automobile liability, if required, shall provide or be endorsed to provide
that City and its officers, officials, employees, and agents shall be included as insureds under
such policies.
(C) Primary and Non Contributory. All liability coverage shall apply on a primary basis and
shall not require contribution from any insurance or self-insurance maintained by City.
(D) Notice of Cancellation. All policies shall provide City with thirty (30) calendar days notice
of cancellation (except for nonpayment for which ten (10) calendar days notice is required) or
nonrenewal of coverage for each required coverage. Such notice shall be sent to:
CITY OF NEWPORT BEACH
Public Works Director
P.O. Box 1768
100 Civic Center Drive
Newport Beach, CA 92660
18.5 Additional Agreements Between the Parties
The Parties hereby agree to the following:
(A) Evidence of Insurance. Operator shall provide certificates of insurance to City as
evidence of the insurance coverage required herein, along with a waiver of subrogation
endorsement for workers' compensation and other endorsements as specified herein for each
coverage. Insurance certificates and endorsement must be approved by City's Risk Manager
prior to commencement of performance. Current certification of insurance shall be kept on file
with City at all times during the term of this Agreement. City reserves the right to require
complete, certified copies of all required insurance policies, at any time.
(B) City's Right to Revise Requirements. City reserves the right at any time during the term
of the Agreement to change the amounts and types of insurance required by giving Operator
sixty (60) calendar days advance written notice of such change. If such change results in
substantial additional cost to Operator, City and Operator may renegotiate Operator's
compensation. Additionally, Operator shall obtain the written consent of the City's Risk
Manager prior to changing insurers providing insurance under this Agreement, which consent
shall not be unreasonably withheld or unreasonably delayed.
(C) Right to Review Subcontracts. Operator agrees that in the event performance of any
service is delegated to a subcontractor, Operator shall require such subcontractor to provide
statutory workers' compensation insurance and employer's liability insurance for all of the
subcontractor's employees engaged in the work related to this Agreement. The liability
coverage required in Section 17.3(B), (C) and (D) shall cover all subcontractors or the
subcontractor must furnish evidence of insurance provided by its meeting all of the
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20-478
requirements of Section 17. Upon request, all agreements with subcontractors or others with
whom Operator enters into contracts with shall be submitted to City for review. Failure of City to
request copies of such agreements will not impose any liability on City, or its employees.
(D) Enforcement of Agreement Provisions. Operator acknowledges and agrees that any
actual or alleged failure on the part of City to inform Operator of non-compliance with any
requirement imposes no additional obligations on City nor does it waive any rights hereunder.
(E) Requirements not Limiting. Requirements of specific coverage features or limits
contained in this Section are not intended as a limitation on coverage, limits or other
requirements, or a waiver of any coverage normally provided by any insurance. Specific
reference to a given coverage feature is for purposes of clarification only as it pertains to a
given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of
other coverage, or a waiver of any type.
(F) Self-insured Retentions. Any self-insured retentions must be declared to and
approved by City. City reserves the right to require that self-insured retentions be eliminated,
lowered, or replaced by a deductible. Self-insurance will not be considered to comply with these
requirements unless approved by City.
(G) City Remedies for Non -Compliance If Operator or any subcontractor fails to provide
and maintain insurance as required herein, then City shall have the right but not the obligation,
to purchase such insurance at Operator's expense, to terminate this Agreement, or to suspend
Operator's right to proceed until proper evidence of insurance is provided. Any amounts paid
by City shall, at City's sole option, be deducted from amounts payable to Operator pursuant to
the Residential Agreement or reimbursed by Operator upon demand. Alternatively, the City
may treat Operator or subcontractor's failure to provide and maintain insurance as a default
and exercise its rights as set forth in Section 19 of this Agreement.
(H) Timely Notice of Claims. Operator shall give City prompt and timely notice of claims
made or suits instituted that arise out of or result from Operator's performance under this
Contract, and that involve or may involve coverage under any of the required liability policies.
City assumes no obligation or liability by such notice, but has the right (but not the duty) to
monitor the handling of any such claim or claims if they are likely to involve City.
(1) Operator's Insurance. Operator shall also procure and maintain, at its own cost and
expense, any additional kinds of insurance, which in its own judgment may be necessary for its
proper protection and prosecution of the Work.
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19. Responsibility for Damages and Injury/Indemnification
19.1 Operator Responsibility
Operator shall be responsible for any damages caused as a result of Operator's acts or
omissions including, but not limited to injuries to or death of any person or damage to public and/or
private property and damages to public improvements as a result of Operator's operation of the
Station.
19.2 General Indemnification
Operator shall indemnify, defend and hold harmless, City, its elected or appointed officials, officers,
employees, agents, consultants, volunteers, affiliates, assignees, representatives, attorneys,
subsidiaries, and affiliated entities and their respective successors, heirs and assigns (collectively,
"Indemnified Parties") from and against any and all claims (individually "a claim", collectively "claims"),
including without limitation, claims for bodily injury, death or damage to property, demands,
obligations, damages, actions, causes of action, suits, losses, judgements, fines, penalties, liabilities,
costs and expenses, (including, without limitation, attorney's fees, disbursements, and court costs) of
any kind and nature whatsoever which may arise from or be in any way related directly or indirectly to
City entering into this Agreement with Operator, Operator's breach of its obligations under this
Agreement, or Operator's performance of, or its failure to perform, its obligations under this
Agreement. The foregoing indemnity shall not apply to the extent that the claim is caused by the sole
negligence, active negligence or the willful misconduct of the Indemnified Parties, but shall apply if the
claim is caused by the joint negligence of Operator and other Persons. Upon the occurrence of any
claim, Operator, at Operator's sole cost and expense, shall defend (with attorneys reasonably
acceptable to City) City, its officers, employees and agents. Nothing in this indemnity shall be
construed as authorizing an award of attorney's fees in any action on, or to enforce the terms of this
Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance
policies are applicable. The policy limits do not act as a limitation upon the amount of the
indemnification to be provided by Operator. Operator's duty to indemnify and defend shall survive the
expiration or earlier termination of this Agreement.
Subject to the scope of this indemnification and upon demand of the City, made by and through the
City Attorney, Operator shall protect City and appear in and defend the Indemnified Parties in any
claims by third parties, whether judicial, quasi-judicial or administrative, including, but not limited to, (i)
disputes and litigation over the definition of "Municipal Solid Waste", "Recyclable Materials", Food
Scraps" or "Green Waste"; (ii) any claim concerning the validity of City entering into this Agreement or
any ordinance or action based thereon, as well as the limits of City's authority with respect to entering
into agreements, including the process for the award and approval of agreements, exclusive or
otherwise; (iii) involving the operation of the Station, arising out of the exercise of this Agreement by
Operator; (iv) claims by other entities disputing the rights and privileges granted by City in this
Agreement; or (v) as specified under the provisions of Section 19.3 of this Agreement concerning
Hazardous Waste. City and Operator agree to confer following any trial as to whether to appeal, or to
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20-480
oppose any appeal. Should either City or Operator decide to appeal, or to oppose appeal, and the
other decide not to appeal or oppose appeal, the party which decides to appeal, or oppose appeal,
shall bear all fees and costs of the appeal or the opposition to the appeal.
19.3 Hazardous Substances Indemnification
Operator shall indemnify the Indemnified Parties from and against all claims, actual damages
including, but not limited to, special and consequential damages, natural resource damage, punitive
damages, injuries, costs, response, remediation, and removal costs, losses, demands, debts, liens,
liabilities, causes of action, suits, legal or administrative proceedings, interest, fines, charges,
penalties and expenses attorneys' and expert witness fees and costs incurred in connection with
defending against any of the foregoing or in enforcing this indemnity of any kind whatsoever paid,
incurred or suffered by, or asserted against, the Indemnified Parties or Operator arising directly or
indirectly from or caused by any of the following: (i) the violation of any environmental laws or the failure
to clean up and mitigate the consequences of the spill or release of any Hazardous Substance; and (ii)
Operator's activities under this Agreement concerning any Hazardous Substance at any place where
Operator stores or disposes of solid or Hazardous Waste pursuant to this Agreement, or preceding
Agreements between City and Operator. The foregoing indemnity is intended to operate as an
agreement pursuant to the Comprehensive Environmental Response, Compensation and Liability Act
42. U.S.C. Section 9607(e) and any amendments thereto; California Health and Safety Code Section
25364, to insure, protect, hold harmless, and indemnify City from liability.
19.4 Intellectual Property Indemnity
Operator shall defend and indemnify City, its agents, officers, representatives and employees against
any and all liability, including costs, for infringement of any United States' letters patent, trademark or
copyright infringement.
19.5 Notice of Claim
City agrees to give notice to Operator when the City receives a claim for damages or other liability for
which Operator has provided indemnification under this Agreement.
20. Default/Termination
The following list of events shall constitute an event of default by the Operator. This is not an
exclusive list of defaults and failure to perform other Agreement terms may be considered material.
(A) Fraud or Deceit or Misrepresentation. If Operator engages in, or attempts to practice,
any fraud or deceit upon City or makes a misrepresentation regarding information to City.
(B) Insolvency or Bankruptcy. If Operator becomes insolvent, unable, or unwilling to pay its
debts, files a bankruptcy petition or takes steps to liquidate its assets.
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(C) Failure to Maintain Coverage. If Operator fails to provide or maintain in full force and
effect all insurance coverage (general liability, automotive, Workers' Compensation and
pollution) as required under this Agreement.
(D) Violations of Regulation. If Operator violates any orders or filings of any regulatory body
having jurisdiction over Operator relative to this Agreement, provided that Operator may contest
any such orders or filings by appropriate proceedings conducted in good faith, in which case no
breach of this Agreement shall be deemed to have occurred until a final decision adverse to
Operator is entered.
(E) Failure to Cooperate with Audits. Failure to complete, perform or cooperate with any
audit as described by this Agreement.
(F) Failure to Submit Reports or Documentation. Failure to complete or to provide required
reports or documents to City as required by this Agreement.
(G)
Acts or Omissions.
(i) Any act or omission by Operator relative to the services provided under this
Agreement which violates the terms, conditions, or requirements of this Agreement, or
AB 939 (Public Resources Code Section 40000 et seq.), or any law, statute, ordinance,
order, directive, rule, or regulation issued pursuant to AB 939 shall constitute a default
by Operator. Any failure to correct or remedy any such violation within the time set in
the written notice of the violation or, if Operator cannot reasonably correct or remedy the
breach within the time set forth in such notice, if Operator should fail to commence to
correct or remedy such violation within the time set forth in such notice and diligently
effect such correction or remedy thereafter shall constitute a default by Operator.
(ii) Any situation in which Operator or any of its officers, directors or employees are
found guilty of any crime related to the performance of this Agreement, or of any crime
related to anti-trust activities, illegal transport or disposal of Hazardous Waste or toxic
materials, or bribery of public officials shall constitute a default by Operator. The term
"found guilty" shall be deemed to include any judicial determination that Operator or any
of Operator's officers, directors or employees is guilty as well as any admission of guilt
by Operator or any of Operator's officers, directors or employees including, but not
limited to, the plea of "guilty" "nolo contendere" "no contest" and "guilty to a lesser
charge".
(H) False or Misleading Statements. Any representation or disclosure made to City by
Operator in connection with or as an inducement to entering into this Agreement, or any future
amendment to this Agreement, which proves to be false or misleading in any material respect
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20-482
as of the time such representation or disclosure is made, whether or not any such
representation or disclosure appears as part of this Agreement.
(1) Attachment. The seizure of, attachment of, or levy on, the operating equipment of
Operator, including, without limits, its equipment, maintenance or office facilities, or any part
thereof.
(J) Suspension or Termination of Service. If Operator ceases to provide all or a portion of
the services at the Station as required under this Agreement for a period of two (2) consecutive
calendar days or more, or seven (7) calendar days for a labor dispute.
(K) Commingling of Recyclable Materials and/or Food Scraps/Green Waste Municipal Solid
Waste/Landfilling of Recyclable Materials and/or Food Scraps/Leen Waste. If Operator
transports Recyclable Materials, Food Scraps, and/or Green Waste to a landfill or other location
at which the material will not be diverted from landfilling.
21. Right to Terminate Upon Default and Right to Specific Performance
Upon any Operator default, City shall have the right to suspend or terminate this Agreement. Such
suspension shall be effective ten (10) days after City has given notice of suspension or termination to
Operator, except that such notice may be effective immediately if the Operator's Default is one which
endangers the health, welfare or safety of the public. Notice may be given by the City orally, in-
person, or by telephone to Operator's designated representative. Written confirmation of such oral
notice of suspension or termination shall be sent by personal delivery, electronic mail, facsimile, or
other expedited means of delivery to Operator within twenty-four hours of the oral notification.
City's right to terminate this Agreement is not exclusive, and City's termination of this Agreement shall
not constitute an election of remedies. Instead, such remedies shall be in addition to any and all other
legal and equitable rights and remedies which City may have.
By virtue of the nature of this Agreement, the urgency of timely continuous and high quality service,
the time required to effect alternative service, and the rights granted by City to Operator, the remedy
of damages for a breach hereof by Operator is inadequate and City shall be entitled to seek injunctive
relief and/or specific performance of any breach of this Agreement.
22. Assignment
Except as specifically authorized under this Agreement, the services to be provided under this
Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written
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approval of City, subject to the requirements of this section. Any assignment, transfer or
subcontracting made without the consent of City shall be void and the attempted assignment shall
constitute an Operator Default. The decision of the City as to whether or not to agree to any assignment
shall be final. For the purpose of this Agreement, "assignment" shall include, but not be limited to: (i) a
sale, exchange or other transfer to a third party of substantially all of Operator's assets dedicated to
service under this Agreement; (ii) a sale, exchange or other transfer of outstanding common stock of
Operator, to a third party which results in a change of control of Operator; (iii) any dissolution,
reorganization, consolidation, merger, re -capitalization, stock issuance or reissuance, voting trust,
pooling agreement, escrow arrangement, liquidation or other transaction which results in a change of
ownership or control of Operator; (iv) any assignment by operation of law, including insolvency or
bankruptcy, an assignment for the benefit of creditors, a writ of attachment for an execution being levied
against this Agreement, appointment of a receiver taking possession of Operator's property, or transfer
occurring in the event of a probate proceeding; and (v) any combination of the foregoing (whether or not
in related or contemporaneous transactions) which has the effect of any such transfer or change of
ownership, or change of control of Operator.
Operator acknowledges that this Agreement involved rendering a vital service to City, and that City
has selected Operator to perform the services specified herein based on (1) Operator's experience,
skill and reputation for conducting its Station services in a safe, effective and responsible fashion, at
all times in keeping with applicable environmental laws, regulations and best solid waste management
practices, and (2) Operator's financial resources to maintain the required equipment and to support its
indemnity obligations to City under this Agreement. City has relied on each of these factors, among
others, in choosing Operator to perform the services to be rendered by Operator under this
Agreement.
If Operator requests City's consideration of and consent to an assignment, City may deny or approve
such request in its sole and absolute discretion. Any request for an assignment must be approved by
the City Manager, and no request by Operator for consent to an assignment need be considered by
City unless and until Operator has met (or with respect to matters that would only occur upon
completion of the assignment if approved, made reasonable assurances that it will meet) the following
requirements:
(A) Operator shall pay City its reasonable expenses for consultants, attorney's fees and
investigation costs necessary to investigate the suitability of any proposed assignee, and to
review and finalize any documentation required as a condition for approving any such
assignment. An advance payment towards expenses may be requested by City prior to City
consideration of any assignment request and Operator shall be responsible to pay all costs
incurred by City in considering a request for assignment, including those in excess of the
aforesaid deposit amount, regardless of whether City consents to the assignment.
(B) Operator shall furnish City with audited financial statements for itself, and the proposed
assignee's operations for the immediately preceding three (3) operating years.
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(C) A pro forma financial statement (income statement and balance sheet) for the proposed
assignee with the projected results of operations assuming that the assignment is completed.
Such pro forma financial statement shall reflect any debt to be incurred by the assignee as part
of the acquisition of Operator's operations.
(D) Operator shall furnish City with satisfactory proof: (i) that the proposed assignee has at
least ten (10) years of solid waste management experience on a scale equal to or exceeding
the scale of operations conducted by Operator under this Agreement; (ii) that in the last five (5)
years, the proposed assignee has not suffered any significant citations or other censure from
any federal, state or local agency having jurisdiction over its solid waste management
operations due to any significant failure to comply with state, federal or local environmental
laws and that the assignee has provided City with a complete list of any such citations and
censures; (iii) that the proposed assignee has at all times conducted its operations in an
environmentally safe and conscientious fashion; (iv) that the proposed assignee conducts its
solid waste management practices in accordance with sound solid waste management
practices in full compliance with all federal, state and local laws regulating the transfer and
transportation of Municipal Solid Waste, Recyclable Materials and Food Scraps/Green Waste
including Hazardous Substances; and, (v) of any other information required by City to ensure
the proposed assignee can fulfill the terms of this Agreement in a timely, safe and effective
manner.
Under no circumstances shall City be obliged to consider any proposed assignment by City if Operator
is in default at any time during the period of consideration. Should City consent to any assignment
request, such assignment shall not take effect until all conditions relating to City's approval have been
met.
23. Subcontractors
The Parties recognize that a substantial inducement to City for entering into this Agreement is the
professional reputation, experience and competence of Operator. Assignments of any or all rights,
duties or obligations of the Operator under this Agreement may be permitted only with the express
written consent of City. Operator shall not subcontract any portion of the work to be performed under
this Agreement without the prior written authorization of City.
24. Confidentiality
All documents, including drafts, preliminary drawings or plans, notes and communications that result
from the services in this Agreement, shall be kept confidential by Operator unless City authorizes in
writing the release of information. Operator's required reports to the Local Enforcement Agency and
CalRecycle and any other regulatory agency having jurisdiction over the Station do not require prior
approval by City. The reports, records and other information submitted (or required to be submitted) by
Operator to City are public records within the meaning of that term in the California Public Records Act,
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Government Code Section 6250 et seq. Unless a particular record is exempted from disclosure by the
California Public Records Act, it must be disclosed to the public by the City upon request.
25. Conflicts of Interest
Operator or its employees may be subject to the provisions of the California Political Reform Act of
1974 (the "Act"), which (1) requires such persons to disclose any financial interest that may
foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such
persons from making, or participating in making, decisions that will foreseeably financially affect such
interest.
If subject to the Act, Operator shall conform to all requirements of the Act. Failure to do so constitutes
a material breach and is grounds for immediate termination of this Agreement by City. Operator shall
indemnify and hold harmless City for any and all claims for damages resulting from Operator's
violation of this Section.
26. Notices
All notices, demands, requests or approvals to be given under the terms of this Agreement shall be
given in writing, and conclusively shall be deemed served when delivered personally, or on the third
business day after the deposit thereof in the United States mail, postage prepaid, first-class mail,
addressed as hereinafter provided. All notices, demands, requests or approvals from Operator to City
shall be addressed to City at:
Public Works Director
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA, 92658
Phone: 949-644-3311 Fax: 949-644-3318
All notices, demands, requests or approvals from City to Operator shall be addressed to Operator at:
Attention: Chip Monaco, Regional Vice President
CR&R Incorporated
11292 Western Avenue
Stanton, California 90680
Phone: (714) 826-9049 Fax: (714) 890-6347
27. Compliance With All Laws
Operator shall at its own cost and expense comply with all statutes, ordinances, regulations and
requirements of all governmental entities, including federal, state, county or municipal, whether now in
force or hereinafter enacted. Operator shall conform to all applicable provisions of State and Federal
23
law, including applicable provisions of the California Labor Code and the Federal Fair Labor
Standards Act. In addition, all work performed by Operator shall conform to applicable City, county,
state and federal laws, rules, regulations and permit requirements and be subject to approval of the
Project Administrator and City.
28. Waiver
A waiver by either Party of any breach of any term, covenant or condition contained herein shall not
be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or
condition contained herein, whether of the same or a different character.
29. Integrated Contract
This Agreement represents the full and complete understanding of every kind or nature whatsoever
between the Parties hereto, and all preliminary negotiations and agreements of whatsoever kind or
nature are merged herein. No verbal agreement or implied covenant shall be held to vary the
provisions herein. All exhibits referenced in this Agreement are incorporated by reference.
30. Interpretation
The terms of this Agreement shall be construed in accordance with the meaning of the language used
and shall not be construed for or against either Party by reason of the authorship of the Agreement or
any other rule of construction which might otherwise apply.
31. Amendments
This Agreement may be modified or amended only by written agreement between Operator and the City
approved as to form by the City Attorney.
32. Severability
If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court
of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and
effect.
33. Controlling Law and Venue
The laws of the State of California shall govern this Agreement and all matters relating to it and any
action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the
County of Orange.
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34. Equal Opportunity Employment
Operator represents that it is an equal opportunity employer and it shall not discriminate against any
subcontractor, employee or applicant for employment because of race, religion, color, national origin,
handicap, ancestry, sex or age.
35. No Attorneys' Fees
In the event of any dispute or action arising under this Agreement the prevailing party shall not be entitled
to attorneys' fees.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the day and
year first written above.
APPROVED AS TO FORM:
By:
Aaron C. Harp
City Attorney
ATTEST:
By:
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
California municipal corporation
By:
Kevin Muldoon, Mayor
OPERATOR:
By:
(Corporate Officer)
Title:
Print Name:
By:
(Financial Officer)
Title:
Print Name:
25
Exhibit "A"
Transfer Station Legal Description & Depiction
Legal Description
All that certain real property situated in the County of Orange, State of California, described as
follows. to -wit:
Beginning at a point 30 feet South 50° East of a point 30 feet South 40° West of the North corner of Lot
One hundred sixty-nine (169) in Block Two (2) of Irvine's Subdivision of the Ranchos San Joaquin,
Lomas de Santiago and Flint and Bixby Allotment in the Rancho Santiago de Santa Ana, as shown on a
Map recorded in Book 1, page 88 of Miscellaneous Maps, records of Orange County, California, thence
South 50° East and parallel to the North-east line of said Lot 169, 809.5 feet, more or less, to a point on
the West right of way line of the Southern Pacific Railroad; thence Southerly along said right of way line
479 feet; thence North 500 West and parallel to the North-east line of said Lot 169, thence North 401 East
and parallel to the North-west line of said Lot 169, 451 feet to the point of beginning, containing 10 acres,
more or less.
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Exhibit "B"
Solid Waste Facility Permit No. 30 -AB -0361
W.
20-491
SOLID WASTE FACILITY PERMIT
1. Name and Street Address of Facility:
City of Newport Beach Transfer Station
592 Superior Avenue
Newport Beach, CA 92663
4.Specifications:
2. Name and Mailing Address of Operator:
CR&R Incorporated
11292 Western Avenue
Stanton, CA 90680
Facility Number:
Kip : IxN]
3. Name and Mailing Address of Owner:
—City of Newnnrt Beach
3300 Newport Boulevard
P.O. Box 1768
Newport Beach, CA 92658-8915
a. Permitted operations: D Solid Waste Disposal Site D Transformation Facility
Z,J Transfer/Processing Facility (MRF) 0 Other: — — — — — — — —
D Composting Facility (MSW/green material/C&G)
b. Permitted Hours of operation: Material Acceptance/Processing/Transfer/Equipment and Facility Maintenance
6:30 am to 4:00 pm, Monday through Friday
7:00 am to 4:30 pm, Saturday
7:00 am to 11 :00 am, Sunday (Material Transfer from the Facility only and Limited to a
Maximum of 15 Sundays per Calendar Year)
300 Tons per Da
8.201
c.Permitted Maximum
Tonnage:
d. Key Design Parameters (Detailed parameters are shown on site plans bearing EA and
CalRecycle validations):
Permitted Area (in acres)
Total Transfer/Processing
1.0
Design Capacity (cu.yds) 1 1 720<z)
Upon a significant change in design or operation from that described herein, this permit is subject to revocation or suspension. The stipulated permit
findings and conditions are integral parts of this permit & supersede the conditions of any previously issued permit.
(I) The 8.2 acres is referred to the Corporation Yard operated by the City ofNewport Beach which contains the I -acre transfer station and other General
Service divisions such as Storm Drain/Street Sweeping Division, Beach Maintenance Division, etc.
(2) Permitted storage capacity source is Negative Declaration (SCH No. 1990010863). The storage capacity was defined as 180 tons. Converted at 4
cubic yards per ton, this equates to 720 cubic yards.
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5. Approval:
LizaF
Director, Environmental Health
6. Enforcement Agency Name and Address:
County of Orange/Health Care Agency
Environmental Health
Solid Waste Local Enforcement Agency
1241 E. Dyer Road, Suite 120
Santa Ana, CA 92705
7. Date Received by CalRecycle: January 19, 2019 1 8. CalRecycle Concurrence Date: February 15, 2019
9. Permit Issued Date:
February 28, 2019
10. Permit Review Due Date:
February 28, 2024
30
11. Owner/Operator Transfer Date:
Page 1 of4
20-493
31
20-494
Facility Number:
SOLID WASTE FACILITY PERMIT
30 -As -0361
12. Legal Description of Facility:
The facility is located in the north comer of Lot 169 in Block 2 of Irvine's Subdivision of the Ranchos San Joaquin, Lomas de
Santiago and Flint and Bixby Allotment in the Rancho Santiago de Santa Ana, as shown on a Map recorded in Book 1, page 88 of
Miscellaneous Maps, records of Orange County, California.
13. Findings:
a. This permit is consistent with the County of Orange Countywide Integrated Waste Management Summary Plan, which
was approved by CalRecycle on March 27, 1996. The location of the facility is identified in the Nondisposal Facility
Element, pursuant to Public Resources Code (PRC) Section 50001(a).
b. This permit is consistent with the standards adopted by the CalRecycle, pursuant to PRC Section 44010.
C. The design and operation of the facility is consistent with the State Minimum Standards for Solid Waste Handling and
Disposal as determined by the enforcement agency, pursuant to PRC Section 44009.
d. A Mitigated Negative Declaration (SCH No. 1988022404) was adopted by the City of Newport Beach City Council on
April 11, 1988 and filed with the County Clerk on April 12, 1988 to support the initial SWFP issued on February 8,
1989. The transfer station commenced operations in March of 1990.
e. A Notice of Exemption (Class I Categorical Exemption) was prepared by the City of Newport Beach Planning
Department on May 7, 2003 and filed with the County Clerk on May 8, 2003 to support the change in days and hours of
operation.
14. Prohibitions:
The facility is prohibited from receiving the following items or operational practices:
• Acceptance of hazardous waste, radioactive waste, designated waste, non -hazardous waste requiring special handling.
• Acceptance of liquid waste or semi-solid waste, containerized or not.
• Acceptance of biosolids, sewage sludge, septic tank pumpings, clarifier waste, slurries, restaurant grease trap pumpings.
• Acceptance of infectious or medical waste.
• Acceptance of dead animals and ash.
• Scavenging, open burning, public dumping.
15. The following documents describe and/or restrict the operation of this facility:
Date
Date
Transfer/Processing Report
10/2018
Land Use and/or Conditional Use Permit
NA
NOE (Class I Categorical Exemption)
05/08/2003
Waste Discharge Requirements
NOE (Class I Categorical Exemption)
10/09/1998
01/18/2002
31
20-494
ND (SCH No. 1990010863) I 10/24/1990 I Resolution No. R8 -2002-0010I 01/18/2002
MND (SCH No. 1988022404) 02/12/1988 NPDES Permit No. CAS618030
32
Page 2 of 4
20-495
SOLID WASTE FACILITY
PERMIT
16. Self Monitoring:
Facility Number:
30 -AB -0361
The facility operator shall submit the results of all self-monitoring programs to the Local Enforcement Agency by
the due dates below. Each self-monitoring report shall include:
Program Reporting Frequency
a. Daily and monthly quantities (in tons) and types of Quarterly
materials received. Such records will also be reviewed by
the LEA during the monthly inspections and shall be
accurate and documented within 7 days of the activity date.
b. Monthly totals of the quantities (in tons) and types of
materials recovered/ salvaged and sent to markets.
c. Daily and monthly tonnages of the quantity of waste
loaded onto transfer trailers and hauled for landfilling Quarter
and/ or additional processing.
d Results of the Household Hazardous Waste Curbside Screening ly
Program and all other prohibited waste screening/load checking programs
(quantities and types) and the disposition of these wastes.
e. A summary of the Log of Special/Unusual Occurrences (SIU 0) Quarter
documenting accidents, employee injuries, frres,
explosions, receipt or rejection of prohibited wastes,
hazardous waste incidents, unscheduled shutdowns, ly
vandalisms, etc. and the operator's actions in response.
f. Logs of all verbal and copies of all written complaints
(pertaining to LEA -regulated parameters and state minimum Quarter
standards) regarding this facility and the operator's
actions in response. The operator shall notify the LEA of
all complaints within 24 hours of the occurrence. ly
g All regulatory notices (e.g., Notice to Comply, Notice of Violation, Notice &
Order, Cease & Desist Order, Clean-up & Abatement Order) received by
the facility and the operator's actions in response. Quarterly
The self-monitoring report shall be submitted in accordance with the following
schedule:
33
20-496
Quarterly Quarterly
Reporting Period Report Due
January through May 1
March August 1
November
April through June 1
February
July through I
September
October through
December
Page 3 of
20-497
W orking Uratt 12 / Y/ / 21
Facility Number:
SOLID WASTE FACILITY PERMIT 30 -AB -0361
17. Enforcement Agency (EA) Conditions:
a) The operator shall comply with all state minimum standards for receiving, handling, storage, and transfer of solid waste as specified in Chapter
3.0, Division 7, Title 14 of the California Code of Regulations (CCR). The operator shall inspect the site at least once each day of operation to
ensure compliance with all applicable state minimum standards, conditions, mitigation measures, and regulations.
b) The operator shall notify the LEA in writing with proposed amendments to the Transfer/Processing Report at least one hundred eighty (180)
calendar days in advance of the proposed significant changes (as determined by the LEA) to the facility's design or operation to allow for early
consultation, completion of all required documents, due process review, filing and the completion of all related permitting processes. Such
notification is required for the following changes, but not limited to: permitted tons per day limit, permitted areas of operation, permitted hours
and/or days of operation, addition of facility equipment and structures, allowance of public disposal, and changes in operation and procedures
not described in the Transfer/Processing Report.
c) The facility is only permitted to accept non -hazardous solid waste from the refuse collection vehicles operated or contracted by the City of
Newport Beach. The facility is not open to the general public for disposal or recycling activities. In the event the operator proposes to expand
facility operations to include access to the general public, the operator is responsible for notifying the LEA in accordance with condition I7(b).
d) As outlined in Section 16, the operator shall maintain at the facility a daily log of special/unusual occurrences (SN 0). The log shall document,
but not be limited to public nuisance complaints (e.g., noise, dust, offsite migration of litter, etc.), fires, explosions, receipt or rejection of
prohibited wastes, incidents of personal injury, vandalisms, accidents and/or property damage. Each log entry shall be accompanied by a
summary of the responses/corrective actions taken by the operator to mitigate any negative impacts of each occurrence. Days without incidents
of SIU O shall be noted with an appropriate negative entry for such days such as "No SIU O today." The log shall be readily accessible to
facility personnel, the LEA, and other regulatory agencies upon request. Such records shall be accurate and documented within 7 days of the
activity date.
e) Additional information concerning the design/operation of this facility shall be furnished to the LEA (and other regulatory personnel) within 10
business days upon request.
f) At all times, there shall be litter control personnel and/or other adequate measures to preclude litter from blowing and accumulating offsite. All
litter shall be properly disposed in refuse receptacles and transported offsite within 48 hours.
g) The operator shall notify the LEA by phone, fax, or e-mail as soon as the maximum permitted daily tonnage has been exceeded. The operator
shall provide the LEA in writing within 48 hours the reasons for the exceedance and the measures and procedures to prevent a recurrence.
h) Personnel assigned to the facility shall be adequately trained in subjects pertinent to transfer station operations and maintenance, solid waste
management, prohibited materials recognition and screening, use of mechanized .equipment , and emergency procedures. A record of such
training shall be maintained at the site and available for review by the LEA and other regulatory agencies upon request.
M':
Attachment X Public Education Plan
Cil Design
nem Far Which Customers/When Content Printing Distribution
and Production
Jun -21
Jul -21
Aug -21
Sep -21
Oct -21
N-21
Dec -21
Jan -22
Feb -22
Mar -22
Apr -22
May -22
Jun -22
Phase 0: Recycling Cart Ill
Per Section 1.4
6,500 households without
Include dates the carts will be distribute, dates when carts will be received, recycling de,
yg g
Per Section 1.4 of
Per Section 1.4
of Attachment
rge
Ta ted Notice to Households that do
recycling service. Mails
CR&R customerservice line, OR code for re li Residents can have exba recycling rt or
cycng.ar
Attachment B,
of Attachment
B,CR&R will
not currently have Recycling Service
September 30, 2021
different size at no additional charge. Include process for requesting additional cart or
CR&R will Produce
B, CR&Rwill
disWbtic this
size.pan
changingI nclude size configurations.
this notice
tthis notice
notice
Per Section 1.4
6,500 households without
Includes userguide, set out instmctions,customer service line, QR code with instructions.
Per Section l.4 of
Per Section l.4
of._ chment
Hang tag Waccompany newly
recycling service. Distributed
Residents can have exta recyclingcartordifferentsizeatno addition,Ich,T,.Include
AltachmeM B,
of Attachment
B,CR&Rwill
delivered recycling cart
with carts Oct 2021.
Process ques gra aging size. Rura
for tin dditional can or changing Include size confi tions.
CR&R will produce
B,CR&Rwill
disMbute this
this notice
pont this notice
notice
Targeted to 6,500 households
Second informational recycling piecewithout
recycling service.
Thanks for participating and FAQs, what goes where.
City
City
City
Malls Feb 1, 2022
Phase 1: Change in Serviw Day Notification
Residents who follow City
City Council Study Session
Council meetings; videom be
Benefits of re -mute includingraduction in VMT,,GHG,,congestion,wear/tearonroads,noise,
City
NA
NA
posted online
routes, etc. l nclude map online.
Direct mailer/utility bill to all households with insert Q&A re: new charges, how do I get an
Mailerto ALL households
All households
extra container, what is wmainerization,dos/don'ts. Determine leads on customerservice
City
City
City
(City vs CR&R). For— containers call CR&R, forquestions call PW.
Per -Section 1.3
Residents whoa re impacted
rou g g. ry organics program an
Reasons whyto change occumn Bnefsumma of d possible
Per Secdonl.3of
Per Secbonl.3
of Attachment
Targeted Notice to households that will
rge
weeksbeforeore
reference to bill insert. Note that there is more infofoithcomin g re: organics program.
Attachment B,
of Attachment
B, CR&Rwill
have route changesbyre-route;3is
reroute is effective
Effective date of mute changes.Online service da URL. Mail me tent to note
day
pro
CR&Rwill duce
B,CR&Rwill
disubutethis
map
current service day and changed day. Include new route map and URL.
this notice
porn this notice
notice
Foram—I dds,nd
neighborhoods that will
Geotargeted NeMDoor ads
expenence a service day
Notfication re: the new service day, why the GN is doing this, benefits of re-route.
City
NA
City
change.
Residents who are impacted
byre-route, week ofand
CR&Rtoconductdial out to a 11 households experiencing a mute cha nge week of route day
CR&R create and
CR&Rexecute
'Dial cut. residents
week after effective date of
change and week after.
record script
NA
dial out
route
Phase 2: Organics Cart Roll-out
State -mandated program required by January 1, 2022 in all cities in Ca ll you will
'New orga nics proga in coming soon'
All households. M ails mid-
receive a ca it between la in and March 2022. I nclude picture of cart with size of footprint
informations l piece)
Dec,2021
(dimensions). What can go in this (green and food). OR code for orga nits video. Kitchen pail is
City
city
city
coming
coming and how to use it.
Summary of organics program starting soon. If you haven't gotten your,, rt, it will be there
by 12/15/2021. Start using your can upon receipt. Place curbside on regula r trash day. What
Second information l organics piece
All households. M ails Ja n 2022
can go In this (green and food). QR code for organia video. Ability to switch out size after
City
City
City
delivery. Available sizes and dimensions. Process for cartswap out (phone, website, etc.).
Customer— info for CR&R. You will receive a kitchen pail and how to use your kitchen pail.
All followers; several posts
Develop a social media calendarfor mil -outwith posts geared to pre -roll-out, during roll-out,
City -dal media channels
before, during, and after
and after roll-out
City
NA
City
program mil -out
Per Sections
Per Sections
Per Sections
1.2.4.41.4.7,
put rganicsca / put organics (pre vac
Materials to [trio rt materials notte tino rt feabl hart or
1.4.2,1.4.7,
1.4.2,1.4.],
of
organics piece
Thirdo nfortnational
All households. Delivered by
gra pan ) pos bag poi
hicthatresident mould keep dreferto. Com table ba guidelines for I
ant
of Attachment B,
B,
2.4.1 of
Attachment
Attachment B,
delivered with organic cart
CR&Rwkh kitchen pail.
and what not to use. Stan using right away. How to contact CR&R. OR code for video Links to
CR&Rwill pmduce
Attachment 8,
CRRwill
City and CR&Rwebsiteand/orFAQ.
this notice
CR&R will print
disthbute this
this notice
notice
All househdds. Distributed
Fourth mailing
3/1/22 as mailer or WST bill
Summary of program and FAQs. Customer care info for CR&R. Thanks for participating.
City
Ciry
Ciry
insert.
All households. Distributed
Filth mailing
4/1/2022 as standalone
Handy tips! Thanks forusing. Who sells compastable bags? What to line kitchen pails with.
City
city
city
or WST bill insert.
How to clean! Dishwashersafe. Customer care info for CR&R. Link to'handy tips'website.
Per Section
Perttachn2.4.1
Per Section
Residential 6 -Month Follow Up
Mailed to all households by
Reminderabou[organics and recycling and what goes where, contamination education. SB
of Attachment B,
241 of
achmef
Attachment B,
Education Matmingsals on Food
June1,2022
13g3-requiredoutreach.
CR&R will produce
Attachment 6,
CR&Rwill
Scap/Yard Trimmings Program
this notice
CR&R will print
di,mbutethis
this notice
notice
Phase 3: Special Service and Cadairer¢ation
Attachment X Public Education Plan
20-500
Notification of availability of a arts, premium and deluxe valet service charges foran
additional charge. Charges effective January 1, 2022, including pricing. How many are free
and how many are extra costs. If you have extra carts you don't want, call CR&R to get rid of
Extra can charges, containenzation, and
All households. Mailed mid-
them so you are net billed. If noactil your extra carts get pulled. Ifyou have eAra carts
special services notification
tan 2022.
and youstill want them, call CR&Randtell them you would like to retainthem a ndyou begin
City
city
City
being billed quarterly on January 1, 2022. If you currently have extra carts and CR&R does not
hear from you, they will remove the carts and you will —be billed forth, extra carts. Note
that containerization is required. Outline process if non -containerized materials are
ntered.
Notification that extra carts, premium and deluxe valetservice charges for an additional
charge. Charges effective April 1, 2022, including pricing. How many are free and how many
Per Sections
rge
Targeted noticeto households
you you ge youare
are eAm costs. if have eAa carts don'twant, call CR&Rto trid ofthem so
PerSection 1.4.7
Per -Section
147of
Targeted notice re: extra cartcharges
withexisting extracartsor
not billed. If no action, your extra carts getpulled. Ifyou have extra carts and you still want
of Attachment B,
147of
Attachment B,
ands I services notification
special
premium va
with lets,rvice.
the,,you would you gin g
them, call CR&R and tell them Id like W retain them and be being billed
CR&R will duce
Pro
Attachment 6,
CR&Rwi`
Mailed 1/15.
on April 1, 2022. If you currently have extra carts and CR&R does not hearfrom you,
this notice
CR&R will print
distnbutethis
they will remove the carts and you will not be billed for the extm carts. Note that
this notice
notice
coma inamaton is required. Outline process if noncontainerized materials are encountered.
Per Section 5.6,
Attachment B,
CR&R: nd City website –clea r to display
nclude how to remove eAm ca rts, upsize orga nit ca rts, customer service info, progra m
CR&R will update
and asy to findnews about organic
Websites
basics, when ca rt deliveries a re cumin, kitchen luta
g par ge,embeddedvideos, etc.
website. Gly will
NA
NA
roll-out and, carts removal
also update
website.
CR&Rdrrvers
Tag overflowing arts to notify residents of pending charge and fines for non-
upon
Non -containerization Tagging
Carts that am overflowing
containerization; grace period; how to add extra carts; etc.
CR&R
CR&R
ncountering
ov i,rH w
Short Tenn Rental
If pernitfees are updated, this outreach piece would update STR operators that permit fees
Owners/Managers procto
thatthe City will colleclwith 10/1/2022 annual STR permits, howto add extra carts, best
Short Tenn Rentals
10/1 when new MSW permit
pacticas for ensuring tena nts pa rticipate in programs, containerisation requirements,
City
City
City
fees may become effective
contamination enforcement, etc.
Residents that receive
SummerSaturday Service
Update that Summer Saturday Service will continue under the new contact for M SW only.
Summer Saturday Service
several weeks before this
Notice re: containerization requirements.
City
City
City
service is provided (June 2022)
Updates on new recycling programs organics recycling programs, state mandates driving
Town Halls
All; prorto organic program
requirements, containerization requirements, route day changes,City bankrolling
City
NA
City
roll-ou
containerization gate period, coordination with duplex homes re: extra cartcharges; etc.
The City will
Per Section 1.4 of
publish these
City social media channels
Allfollowers
Social media blasts mirrorfive mailers in content and timing.
Attachment B,
NA
posts via
CR&R willproduce
existing social
these posts
media channels
Per Attachment8,
City to
NBTV
Dec -21
CR&R's'Howto'video on loop. Interviewswith City staffabouthow program works.
MR will produce
NA
broadcaston
Interviews with organic recycling champions in City.
video.
NBN.
I nclude a dvertisement for orga nics progra m– positive points. All cities have W do this. Roll
The City will draft
The City will
Daily Pilot Advertisementmailing)
Ja n 15, 2022(afterinida11
outtiming. Picture ofcar(t,ck, howthis helps,etc. Specific mailers. Custam,rservica call
copy forthes.
NA
publishthese
lines. Thanks in advance foryour help,
advertisements
advertisements
Per
Per
Distribution by CR&Rto
by CR&Rt
PerAttachmentN
AttachmentN
AttachmentN
Follow-up education/outreach piece to
neighution
where
and Attachment
and
and
neighborhoods on routesthat
contamination is identified
Reminderof how to use program, which materials can be accepted, state lawrequirement,
B, CR&R will have
Attachment B,
Attachment,,
characterizations exceed 25%
during waste chaactenzation
local ordinance requirements (after adoption of 581383 ordinance).Cross-contamination and
to develop if
CR&R will have
CR&R will have
contamination
process. Distributed within 6O
wish -cycling.
contamination
to develop/
to distribute if
days ofcharactemation
exceeds 25%
coma mination
contamination
result.
ceeds 25%
exceeds 25%
20-500
ATTACHMENT Y
INFORMATION TO BE SUBMITTED WITH MONTHLY INVOICE
Each monthly invoice submitted to the City by Contractor shall contain a cover page in the
format shown below, with the amount for each of the services provided. The categories of
services shall be the same as those on Attachment D-1.
Pursuant to Section 12.06 of the Agreement, each invoice shall also contain all of the
information in this Attachment Y.
Basic Service
Monthly Compensation
Amount
Customer collection in "2013 Contract Area" in Attachment Q
$333,846.00
Customer collection in "Newport Coast" Area in Attachment Q
$63,416.05
Enhanced SB 1383 -mandated programs (for entire City)
$239,556.68
Bulky item collection
$549.00
Sharps collection program
$2,285.00
HHW door-to-door collection program
$11,431.00
Container pull-out for disabled customers
No charge
Two (2) annual shred days
No charge
One (1) annual compost/mulch giveaway
No charge
Subtotal Basic Service
$651,083.73
ATTACHMENT Y Page 1 of 11
20-501
Monthly Total
Additional Services
Collection of Non -Containerized Materials During "Grace Period"
Emergency Collection Services - one 2 -person crew and truck
Additional Load of Bulk Compost
Additional Bagged Compost (Single pallet or load of 24 pallets)
Subtotal Additional Services
ATTACHMENT Y Page 1 of 11
20-501
D
D
C7
2
m
z
CITY OF NEWPORT BEACH
RESIDENTIAL SOLID WASTE & RECYCLING TONS
�QEO CYN iw.ww WeeE _ r_ __W6 E-wA8{! EIiSw RElmOf1YL YFG�0.0 9LJl1CY �5 � R"IDEMYLL W[RlCN
DIarW
�w
1 73a I - 1 -- I -11 I — 1 1— I — I zasas I — I - I — I — — — "15 ,�,. I.M64 wa, OM ,.IM"
a
20-502
01 C1=1I.F?
CITY OF NEWPORT BEACH
Dl verelm 4y Cart Type
May -21
Month: March
MSW Cart
Recycling Cart
Food Scraps and
Green Waste Cart
Total
Collected Tons
2,000.00
1,000.00
1,000.00
4,000.00
Diverted Tons
-
900.00
950.00
1,850.00
Disposed Tons
2,000.00
100.00
50.00
2,150.00
1,850.00
ATTACHMENT Y Page 3 of 11
20-503
Print NamerFitle: Mike Carey! Senior Sustainability Coordinator
Signature: 914ike Carey Date: Thursday, June 10, 2021
By my signature, the information submitled betow is cerlifled to be correct and the proper back-up information• par the franchise agreement, is indaded with this report.
Complaints Received by Operator
Other Information to Report
20-504
City of Newport Beach
h
General Services Department
r]
Transfer Station Solid Waste Processing Reporting Form
Q4
CR&R Incorporated
CR Transfer, Inc.
Report forMonthfYear
May -21
Address:
592 Superior Avenue
Newport Beach, CA 92663
Print NamerFitle: Mike Carey! Senior Sustainability Coordinator
Signature: 914ike Carey Date: Thursday, June 10, 2021
By my signature, the information submitled betow is cerlifled to be correct and the proper back-up information• par the franchise agreement, is indaded with this report.
Complaints Received by Operator
Other Information to Report
20-504
Q 1= St M St
N C G i F o o•. E u
environmental services
the face of a greener generation
THE CITY OF NEWPORT BEACH
Newport Beach Load Check Report
Month: May 2021
�.�.,
,
Saturday, May 01, 2021
3
Sunday, May 02, 2021
0
Monday, May 03, 2021
4
Pesticides 2
Tuesday, May 04, 2021
5
Wednesday, May 05, 2021
5
Thursday, May 06, 2021
5
Paint 2
Friday, May 07, 2021
7
Saturday, May 08, 2021
2
Sunday, May 09, 2021
0
Monday, May 10, 2021
3
Tuesday, May 11, 2021
6
Wednesday, May 12, 2021
4
Thursday, May 13, 2021
3
Friday, May 14, 2021
4
Paint 1
Saturday, May 15, 2021
3
Sunday, May 16, 2021
0
Monday, May 17, 2021
4
Tuesday, May 18, 2021
8
Wednesday, May 19, 2021
8
Thursday, May 20, 2021
4
Pesticides 3
Friday, May 21, 2021
8
Saturday, May 22, 2021
3
Sunday, May 23, 2021
0
Monday, May 24, 2021
5
Tuesday, May 25, 2021
8
Wednesday, May 26, 2021
6
Thursday, May 27, 2021
4
Friday, May 28, 2021
10
Paint 1
Saturday, May 29, 2021
4
Sunday, May 30, 2021
0
Monday, May 31, 2021
0
ATTACHMENT Y Page 5 of 11
20-505
D
D
m
z
N
a
m
QCI-qs.m
environmental services
the face of o greener genereticrj
THE CITY OF NEWPORT BEACH
Household Hazardous Material (HHW) Report
Month: May -21
Accounts Total QT Total
HHW 31 36 94427
ACCOnnt total does not include duplicates
20-506
29 21539 1 LEO R ANDERSON
30 121757 MICHAELS YEAGER
31 23006 1 RICHARD WAKENS
v
m
CD
L DRIFTWOOD RD .�25/06/2021�11�HUSEHOLD HA7ARDOUS WASTE
P CORTLAND DR 05/27/2021 4 HOUSEHOLD HAZARDOUS WASTE
HILLSDALE DR 05/13/2021 116 HOUSEHOLD HAZARDOUS WASTE
20-507
G = m mm. m
anvlronmental services
THE CITY OF NEWPORT BEACH
Sharps Report Report
Month: May 2021
SHARPS I 18- 16 39
• Account total does notIndude duplicates
ATTACHMENT Y Page 8 of 11
20-508
environmental services
ine tom. ar a pie.ner penemrlwi
THE CITY OF NEWPORT BEACH
COMPLAINT REPORT
Month: May 2621
RESIDENTIAL ACCOUNTS:
CUSTOMER
SONIA GREGt1REK
Anton Taken
1A50N SCNO WAN
Anton Taken
DANIEttE & BRIAN SPERRM
Actlon Ta ken
RC5AAIN0 HANAWAY
Adlon Taken
ADDRESS J DATE
1
Notified Ops, unable to pick -a 9 scheduled due to street sfurry pmjen1
Serviced Cart before 4:00 AM
CuMmercomplaint of dart placement foltowIng servlclna
i
V
Route manager visited local100. Reslderds place tarts far In street1
Attempted to contact resident and dis
Customer y pick up
Notified Op, vedffed schedule
Serviced carts
5/27/2021
Cusmmer complaint of.lssed pick up(walk-Inservidel
5/27/2021
ops indicates Ihat balk -up ddver was servicing mete today
5/27/2021
Coached retie rd. v-�El
er, retumM [o sarvlce cua[emera .nn.
ATTACHMENT Y Page 9 of 11
20-509
environmental services
ire las® of a greener garreroticn
Residential Summarv: Newport Coast
Report Created an 6/16/2021
Single Family Residential
�pecial Services, Requests
11 Number of New Accounts Established
2} Additiona I Trash Cart Count (90 gallon)
3) Additional Trash Can Count (50 gallon)
4) Additional Trash Cart Count 135 gallon)
"Total Additional Trash Cart Count
5) Additional Recycle Cart Count (90 gallon)
6) Additional Recycle Cart Count (60 gallon)
7) Additional Recycle Cart Count (35 gallon)
"Total Recycle
Total Additional Recycle Cart Count
8} Complaint Log
Customer Address
No New Compaints - April
April
0
(.Ofrent
May April - May
0 .-od
817
821
133
133
qq
999 4
948
228
233 ■
37
37
277 7
12
282
5
1,271
1,28pim
Date Summary
9) New Account Detail
Customer Address Date Summary
No New Accounts - April
Print NamelTitle: Mike Carey 1 Senior Sustainability Specialist
Signature: Mike Carey Datei 6/1612021
By my signature, the 'nformabor included with Ibis report is cenfled to be correct and the proper per the franchise agreement.
Page 1 of 1
20-510
MONTHLY DETAIL FOR COLLECTION OF NON -CONTAINERIZED MATERIAL DURING "GRACE PERIOD"
DATE CUSTOMER NAME ADDRESS QUANTITY CHARGE
TOTAL
ATTACHMENT Y Page 11 of 11
20-511
Attachment Z
Method For Adjusting Contractor's Compensation for Addition of Specified
Neighborhoods and for New Residences Constructed on Vacant Land During the
Term of the Agreement
A. Compensation Adjustment for Addition of Specified Neighborhoods to
Contractor's Service Area
1. Neighborhood Information
As of the Effective Date, the following Residential neighborhoods are not part of
Contractor's service area in Attachment Q and therefore do not receive Contractor's
services pursuant to this Agreement:
Neighborhood
Number of
Residences/Units
Newport Terrace
283
Chatham Ct
54
Mesa View
288
Total
625
These neighborhoods are shown on the maps below:
/
Newport Beach
Residences Not Served by Contractor as of the Effective Date
Chatham Ct.
Mesa View
Newport Terrace
Santa Ana Heights
Newport Beach City Boundary
Attachment Z Page 1 of 5
20-512
Attachment Z
Method For Adjusting Contractor's Compensation for Addition of Specified
Neighborhoods and for New Residences Constructed on Vacant Land During the
Term of the Agreement
Additional detail of Chatham Court (red) and Mesa View (turquoise) neighborhoods.
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Additional detail of Newport Terrace neighborhood below.
Attachment Z
z
Sea Bluff Dr
�P
a o eO/es Ter N
e Ter
(1 �
i
Ta ltrn
F n.i
Park
Pine Pl
Oak St
Q Q
Linden PI es
Q
Grove PI c �
D
• U
¢' W Place L
W20th St
Newport Beach
Carryon
Community Evergreen PI
Park
Dogwood St
Cedar PI
Arbor St
v
W 19th St
Marin
vtew Park° E
U Park
3
w e r Center St
Parkhill Dr
I 0 025 0.5
s Center St Miles
5°innaker R,
Page 2 of 5
20-513
Attachment Z
Method For Adjusting Contractor's Compensation for Addition of Specified
Neighborhoods and for New Residences Constructed on Vacant Land During the
Term of the Agreement
A listing of specific addresses is included in Attachment Z-1.
2. Example Calculation if the City directs Contractor to Add One or More
Neighborhoods per Section 12.07 of the Agreement
In the event the City directs Contractor to add one or more of the neighborhoods
identified above to Contractor's service area per Section 12.07 of the Agreement, the
following methodology shall be used to adjust Contractor's compensation.
Example calculation to determine cost of providing service to neighborhood:
1. Monthly Cost per Residence (a)
$24.08
2. Monthly Cost Per Residence With Annual Adjustments
(b)
$24.44
3. Number of Residences Added (c)
54
4. Monthly Cost of Servicing New Residences (d)
$1,319.76
5. New Monthly Compensation to Contractor for
"Customer Collection in 2013 Contract Area in
Attachment Q" (e)
$335,165.76
(a) The "Monthly Cost per Residence" as of the Effective Date is $24.08. In the event
Contractor's compensation is being adjusted for addition of a specified neighborhood
on or after July 1, 2022, adjust the Monthly Cost per Residence as described in (b)
below.
(b) Multiply the "Monthly Cost Per Residence" by the total annual compensation
adjustment described in Attachment J, Part B, Step Two, second paragraph. See
Attachment J, Part B, Subpart 5 "Adjustment Method For Monthly Cost Per
Residence" for directions and a sample calculation. Note: if more than one (1) annual
adjustment to Contractor's costs has occurred prior to the date the City directs the
addition of a specified neighborhood, adjust the Monthly Cost per Residence to reflect
all of the annual adjustments that have occurred prior to the date of the addition of the
neighborhood. Enter the current `Monthly Cost per Residence' as adjusted. [For
purposes of this example assume there has been one (1) annual adjustment as
described in Attachment J that results in an increase of one and one-half percent
(1.5%).]
(c) Enter the number of residences being added to Contractor's service area. In this
example, the City directed the Contractor to add Chatham Court to its service area.
Chatham Court has 54 residences.
(d) Multiply the value in Row 2 (Monthly Cost per Residence) by the value in Row 3
(Number of Additional Residences Added) to determine the increase in monthly
compensation due to the Contractor for providing service to the additional
Residences.
(e) Add this amount to the monthly compensation amount paid to Contractor shown in
Attachment D-1 (first row "Customer Collection in `2013 Contract Area' in Attachment
Q"). For example, the Contractor's monthly compensation amount in row 1 of
Attachment Z Page 3 of 5
20-514
Attachment Z
Method For Adjusting Contractor's Compensation for Addition of Specified
Neighborhoods and for New Residences Constructed on Vacant Land During the
Term of the Agreement
Attachment D-1 is $333,846 as of the Effective Date. Adding $1,319.76 (as shown in
Row 4 above) to this amount would equal $335,165.76. This would become the new
monthly Contractor compensation amount for "Customer Collection in `2013 Contract
Area' in Attachment Q" listed in Attachment D-1 (shown in Row 5 above).
B. Compensation Adjustment for Construction of New Residences on Vacant
Land During the Term of the Agreement
1. Example Calculation if more than 40 Certificates of Occupancy are Issued by
the City for New Developments on Previously Vacant Lots/Land that Receive
Residential Cart Service
Beginning with the Effective Date of this Agreement, the City will track, on a quarterly
basis, the number of Certificates of Occupancy issued by City for new Residences
constructed on lots or land that were vacant as of the Effective Date. The count of new
Residences shall include only new Residences that meet all of the following: (i) the new
Residence was constructed on land or a lot that was vacant as of the Effective Date; (ii)
the new Residence is located within Contractor's service area shown on the map in
Attachment Q; (iii) the City has issued a Certificate of Occupancy for the new
Residence; and (iv) the new Residence receives Residential Cart Collection service
from the Contractor.
If at any point during the Term, the cumulative number of Certificates of Occupancy
issued by City after the Effective Date for new Residences that meet all of the above -
listed criteria exceeds forty (40) such new Residences, the following methodology shall
be used to adjust Contractor's compensation.
Once the count of qualifying new Residences reaches forty (40) or more, and
Contractor's compensation has been adjusted as described herein, the count returns to
zero (0) and begins again. Thereafter, Contractor's compensation shall be adjusted
each time the cumulative number of Certificates of Occupancy issued to qualifying new
Residences exceeds forty (40).
Such adjustments to Contractor's compensation shall be effective the first full month
following the completion of the adjustment calculation. [Note: Such adjustments shall
not be retroactive.] Once either Contractor or the City become aware that more than
forty (40) Certificates of Occupancy have been issued to qualifying new Residences, the
adjustment calculation shall be completed by City within thirty (30) days.
Attachment Z
Page 4 of 5
20-515
Attachment Z
Method For Adjusting Contractor's Compensation for Addition of Specified
Neighborhoods and for New Residences Constructed on Vacant Land During the
Term of the Agreement
Example calculation to adjust Contractor's compensation for providing service to
new Residential premises constructed on previously vacant lots:
1. Monthly Cost per Residence (f)
$24.08
2. Monthly Cost per Residence With Annual Adjustments
$24.44
(g)
3. Number of Residences Added (h)
42
4. Monthly Cost of Servicing New Residences (i)
$1,026.48
5. New Monthly Compensation to Contractor for
"Customer Collection in 2013 Contract Area in
$334,872.48
Attachment Q" (j)
(f) The "Monthly Cost per Residence" as of the Effective Date is $24.08. In the event
Contractor's compensation is being adjusted for addition of forty (40) or more
qualifying new Residences on or after July 1, 2022, adjust the Monthly Cost per
Residence as described in (g) below.
(g) Multiply the "Monthly Cost Per Residence" by the total annual compensation
adjustment. See Attachment J, Part B, Subpart 5 "Adjustment Method For Monthly
Cost Per Residence" for directions and a sample calculation. Note: if more than one
(1) annual adjustment to Contractor's costs has occurred prior to the date of the cost
adjustment, adjust the Monthly Cost per Residence to reflect all of the annual
adjustments that have occurred prior to the date of the addition of the neighborhood.
Enter the current `Monthly Cost per Residence' as adjusted. [For purposes of this
example assume there has been one (1) annual adjustment as described in
Attachment J that results in an increase of one and one-half percent (1.5%).]
(h) Enter the number of new residences being added to Contractor's service area (i.e. the
number of Certificates of Occupancy issued by the City for new Residences that meet
all of the qualifications listed herein. In this example, the City issued forty-two (42)
Certificates of Occupancy to new Residences that meet the qualifications.
(i) Multiply the value in Row 2 (Monthly Cost per Residence including annual
adjustments) by the value in Row 3 (Number of new Residences Added) to determine
the increase in monthly compensation due to the Contractor for providing service to
the additional Residences.
Q) Add this amount to the monthly compensation amount paid to Contractor shown in
Attachment D-1 (first row "Customer Collection in `2013 Contract Area' in Attachment
Q"). For example, the Contractor's monthly compensation amount in row 1 of
Attachment D-1 is $333,846 as of the Effective Date. Adding $1,026.48 (as shown in
Row 4 above) to this amount would equal $334,872.76. This would become the new
monthly Contractor compensation amount for "Customer Collection in `2013 Contract
Area' in Attachment Q" listed in Attachment D-1 (as shown in Row 5 above).
Attachment Z Page 5 of 5
20-516
Attachment Z-1
Addresses of Residences in Neighborhoods Served by Third Party
As of the Effective Date
1. Residences in Newport Terrace Neighborhood Served by Third -Party Non -
Exclusive Commercial Franchisee as of the Effective Date
Household count: 283
Street Number
Street Name
City
State
ZIP
7
SANDFLOWER CT
Newport Beach
CA
92663
18
LATITUDE CT
Newport Beach
CA
92663
4
SANDFLOWER CT
Newport Beach
CA
92663
1
SEAMIST CIR
Newport Beach
CA
92663
21
SEAMIST CIR
Newport Beach
CA
92663
5
SUNDANCE DR
Newport Beach
CA
92663
1
SEABIRD CT
Newport Beach
CA
92663
15
SEABIRD CT
Newport Beach
CA
92663
17
SEABIRD CT
Newport Beach
CA
92663
20
SEABIRD CT
Newport Beach
CA
92663
14
SEABIRD CT
Newport Beach
CA
92663
25
SEABIRD CT
Newport Beach
CA
92663
32
SEABIRD CT
Newport Beach
CA
92663
34
SEABIRD CT
Newport Beach
CA
92663
37
SEABIRD CT
Newport Beach
CA
92663
39
SEABIRD CT
Newport Beach
CA
92663
42
SEABIRD CT
Newport Beach
CA
92663
1
NORTHWIND CT
Newport Beach
CA
92663
4
SEABIRD CT
Newport Beach
CA
92663
11
SEABIRD CT
Newport Beach
CA
92663
12
SEABIRD CT
Newport Beach
CA
92663
41
SEABIRD CT
Newport Beach
CA
92663
7
NORTHWIND CT
Newport Beach
CA
92663
15
NORTHWIND CT
Newport Beach
CA
92663
17
NORTHWIND CT
Newport Beach
CA
92663
18
SEABIRD CT
Newport Beach
CA
92663
29
SEABIRD CT
Newport Beach
CA
92663
31
SEABIRD CT
Newport Beach
CA
92663
35
SEABIRD CT
Newport Beach
CA
92663
3
NORTHWIND CT
Newport Beach
CA
92663
5
NORTHWIND CT
Newport Beach
CA
92663
9
NORTHWIND CT
Newport Beach
CA
92663
11
NORTHWIND CT
Newport Beach
CA
92663
44
SEABIRD CT
Newport Beach
CA
92663
Attachment Z-1 Page 1 of 18
20-517
Attachment Z-1 Page 2 of 18
20-518
Attachment Z-1
Addresses
of Residences in Neighborhoods Served by Third Party
As of the Effective Date
Street Number
Street Name
City
State
ZIP
33
SEABIRD CT
Newport Beach
CA
92663
36
SEABIRD CT
Newport Beach
CA
92663
40
SEABIRD CT
Newport Beach
CA
92663
43
SEABIRD CT
Newport Beach
CA
92663
2
SEABIRD CT
Newport Beach
CA
92663
3
SEABIRD CT
Newport Beach
CA
92663
5
SEABIRD CT
Newport Beach
CA
92663
6
SEABIRD CT
Newport Beach
CA
92663
7
SEABIRD CT
Newport Beach
CA
92663
8
SEABIRD CT
Newport Beach
CA
92663
10
SEABIRD CT
Newport Beach
CA
92663
19
SEABIRD CT
Newport Beach
CA
92663
21
SEABIRD CT
Newport Beach
CA
92663
23
SEABIRD CT
Newport Beach
CA
92663
16
SEABIRD CT
Newport Beach
CA
92663
27
SEABIRD CT
Newport Beach
CA
92663
8
RIPTIDE CT
Newport Beach
CA
92663
4
MOONRISE CT
Newport Beach
CA
92663
8
MOONRISE CT
Newport Beach
CA
92663
10
MOONRISE CT
Newport Beach
CA
92663
2
STARBURST CT
Newport Beach
CA
92663
3
STARBURST CT
Newport Beach
CA
92663
11
STARBURST CT
Newport Beach
CA
92663
12
STARBURST CT
Newport Beach
CA
92663
15
STARBURST CT
Newport Beach
CA
92663
6
RIPTIDE CT
Newport Beach
CA
92663
12
MOONRISE CT
Newport Beach
CA
92663
31
SAND DOLLAR CT
Newport Beach
CA
92663
33
STARFISH CT
Newport Beach
CA
92663
37
STARFISH CT
Newport Beach
CA
92663
25
SAND DOLLAR CT
Newport Beach
CA
92663
26
SAND DOLLAR CT
Newport Beach
CA
92663
28
SAND DOLLAR CT
Newport Beach
CA
92663
20
SAND DOLLAR CT
Newport Beach
CA
92663
27
STARFISH CT
Newport Beach
CA
92663
29
STARFISH CT
Newport Beach
CA
92663
30
STARFISH CT
Newport Beach
CA
92663
23
SAND DOLLAR CT
Newport Beach
CA
92663
27
SAND DOLLAR CT
Newport Beach
CA
92663
34
SAND DOLLAR CT
Newport Beach
CA
92663
22
SAND DOLLAR CT
Newport Beach
CA
92663
Attachment Z-1 Page 2 of 18
20-518
Attachment Z-1 Page 3 of 18
20-519
Attachment Z-1
Addresses
of Residences in Neighborhoods Served by Third Party
As of the Effective Date
Street Number
Street Name
City
State
ZIP
24
SAND DOLLAR CT
Newport Beach
CA
92663
26
STARFISH CT
Newport Beach
CA
92663
31
STARFISH CT
Newport Beach
CA
92663
34
STARFISH CT
Newport Beach
CA
92663
29
SAND DOLLAR CT
Newport Beach
CA
92663
35
SAND DOLLAR CT
Newport Beach
CA
92663
28
STARFISH CT
Newport Beach
CA
92663
32
STARFISH CT
Newport Beach
CA
92663
35
STARFISH CT
Newport Beach
CA
92663
38
STARFISH CT
Newport Beach
CA
92663
39
STARFISH CT
Newport Beach
CA
92663
36
STARFISH CT
Newport Beach
CA
92663
40
STARFISH CT
Newport Beach
CA
92663
41
STARFISH CT
Newport Beach
CA
92663
33
SAND DOLLAR CT
Newport Beach
CA
92663
30
SAND DOLLAR CT
Newport Beach
CA
92663
32
SAND DOLLAR CT
Newport Beach
CA
92663
36
SAND DOLLAR CT
Newport Beach
CA
92663
21
SAND DOLLAR CT
Newport Beach
CA
92663
30
SEABIRD CT
Newport Beach
CA
92663
38
SEABIRD CT
Newport Beach
CA
92663
5
SUMMERWALK CT
Newport Beach
CA
92663
8
WINDSONG CT
Newport Beach
CA
92663
11
WINDSONG CT
Newport Beach
CA
92663
14
BIG DIPPER CT
Newport Beach
CA
92663
6
SUMMERWALK CT
Newport Beach
CA
92663
9
SUMMERWALK CT
Newport Beach
CA
92663
12
SUMMERWALK CT
Newport Beach
CA
92663
17
SUMMERWALK CT
Newport Beach
CA
92663
21
SUMMERWALK CT
Newport Beach
CA
92663
1
SUMMERWALK CT
Newport Beach
CA
92663
3
SUMMERWALK CT
Newport Beach
CA
92663
4
SUMMERWALK CT
Newport Beach
CA
92663
11
SUMMERWALK CT
Newport Beach
CA
92663
14
SUMMERWALK CT
Newport Beach
CA
92663
16
SUMMERWALK CT
Newport Beach
CA
92663
1
BIG DIPPER CT
Newport Beach
CA
92663
2
BIG DIPPER CT
Newport Beach
CA
92663
3
BIG DIPPER CT
Newport Beach
CA
92663
6
BIG DIPPER CT
Newport Beach
CA
92663
10
BIG DIPPER CT
Newport Beach
CA
92663
Attachment Z-1 Page 3 of 18
20-519
Attachment Z-1 Page 4 of 18
20-520
Attachment Z-1
Addresses
of Residences in Neighborhoods Served by Third Party
As of the Effective Date
Street Number
Street Name
City
State
ZIP
1
WINDSONG CT
Newport Beach
CA
92663
6
WINDSONG CT
Newport Beach
CA
92663
7
WINDSONG CT
Newport Beach
CA
92663
9
WINDSONG CT
Newport Beach
CA
92663
10
WINDSONG CT
Newport Beach
CA
92663
7
SUMMERWALK CT
Newport Beach
CA
92663
15
SUMMERWALK CT
Newport Beach
CA
92663
4
BIG DIPPER CT
Newport Beach
CA
92663
5
BIG DIPPER CT
Newport Beach
CA
92663
8
BIG DIPPER CT
Newport Beach
CA
92663
12
BIG DIPPER CT
Newport Beach
CA
92663
8
SUMMERWALK CT
Newport Beach
CA
92663
10
SUMMERWALK CT
Newport Beach
CA
92663
18
SUMMERWALK CT
Newport Beach
CA
92663
19
SUMMERWALK CT
Newport Beach
CA
92663
7
BIG DIPPER CT
Newport Beach
CA
92663
9
BIG DIPPER CT
Newport Beach
CA
92663
11
BIG DIPPER CT
Newport Beach
CA
92663
15
BIG DIPPER CT
Newport Beach
CA
92663
3
WINDSONG CT
Newport Beach
CA
92663
12
WINDSONG CT
Newport Beach
CA
92663
2
SUMMERWALK CT
Newport Beach
CA
92663
5
WINDSONG CT
Newport Beach
CA
92663
4
WINDSONG CT
Newport Beach
CA
92663
2
WINDSONG CT
Newport Beach
CA
92663
11
STARFISH CT
Newport Beach
CA
92663
2
SAND DOLLAR CT
Newport Beach
CA
92663
10
NORTHWIND CT
Newport Beach
CA
92663
5
MOONRISE CT
Newport Beach
CA
92663
7
MOONRISE CT
Newport Beach
CA
92663
11
MOONRISE CT
Newport Beach
CA
92663
11
SURFSIDE CT
Newport Beach
CA
92663
12
SURFSIDE CT
Newport Beach
CA
92663
1
RIPTIDE CT
Newport Beach
CA
92663
7
RIPTIDE CT
Newport Beach
CA
92663
17
RIPTIDE CT
Newport Beach
CA
92663
8
NORTHWIND CT
Newport Beach
CA
92663
1
SURFSIDE CT
Newport Beach
CA
92663
5
SURFSIDE CT
Newport Beach
CA
92663
7
SURFSIDE CT
Newport Beach
CA
92663
18
SURFSIDE CT
Newport Beach
CA
92663
Attachment Z-1 Page 4 of 18
20-520
Attachment Z-1 Page 5 of 18
20-521
Attachment Z-1
Addresses
of Residences in Neighborhoods Served by Third Party
As of the Effective Date
Street Number
Street Name
City
State
ZIP
19
SURFSIDE CT
Newport Beach
CA
92663
19
RIPTIDE CT
Newport Beach
CA
92663
1
MOONRISE CT
Newport Beach
CA
92663
3
MOONRISE CT
Newport Beach
CA
92663
9
MOONRISE CT
Newport Beach
CA
92663
2
SURFSIDE CT
Newport Beach
CA
92663
4
SURFSIDE CT
Newport Beach
CA
92663
8
SURFSIDE CT
Newport Beach
CA
92663
10
SURFSIDE CT
Newport Beach
CA
92663
15
SURFSIDE CT
Newport Beach
CA
92663
16
SURFSIDE CT
Newport Beach
CA
92663
3
RIPTIDE CT
Newport Beach
CA
92663
5
RIPTIDE CT
Newport Beach
CA
92663
11
RIPTIDE CT
Newport Beach
CA
92663
3
SURFSIDE CT
Newport Beach
CA
92663
17
SURFSIDE CT
Newport Beach
CA
92663
2
RIPTIDE CT
Newport Beach
CA
92663
10
RIPTIDE CT
Newport Beach
CA
92663
2
MOONRISE CT
Newport Beach
CA
92663
7
STARBURST CT
Newport Beach
CA
92663
8
STARBURST CT
Newport Beach
CA
92663
9
STARBURST CT
Newport Beach
CA
92663
10
STARBURST CT
Newport Beach
CA
92663
14
STARBURST CT
Newport Beach
CA
92663
17
STARBURST CT
Newport Beach
CA
92663
19
STARBURST CT
Newport Beach
CA
92663
6
MOONRISE CT
Newport Beach
CA
92663
14
MOONRISE CT
Newport Beach
CA
92663
1
STARBURST CT
Newport Beach
CA
92663
4
STARBURST CT
Newport Beach
CA
92663
5
STARBURST CT
Newport Beach
CA
92663
6
STARBURST CT
Newport Beach
CA
92663
4
RIPTIDE CT
Newport Beach
CA
92663
14
SANDFLOWER CT
Newport Beach
CA
92663
15
LATITUDE CT
Newport Beach
CA
92663
3
LATITUDE CT
Newport Beach
CA
92663
4
LATITUDE CT
Newport Beach
CA
92663
5
LATITUDE CT
Newport Beach
CA
92663
5
SAND DOLLAR CT
Newport Beach
CA
92663
21
LATITUDE CT
Newport Beach
CA
92663
3
SEAMIST CIR
Newport Beach
CA
92663
Attachment Z-1 Page 5 of 18
20-521
Attachment Z-1 Page 6 of 18
20-522
Attachment Z-1
Addresses
of Residences in Neighborhoods Served by Third Party
As of the Effective Date
Street Number
Street Name
City
State
ZIP
11
SEAMIST CIR
Newport Beach
CA
92663
19
SEAMIST CIR
Newport Beach
CA
92663
11
SAND DOLLAR CT
Newport Beach
CA
92663
2
SANDFLOWER CT
Newport Beach
CA
92663
14
SAND DOLLAR CT
Newport Beach
CA
92663
9
SANDFLOWER CT
Newport Beach
CA
92663
16
SAND DOLLAR CT
Newport Beach
CA
92663
12
SANDFLOWER CT
Newport Beach
CA
92663
19
SAND DOLLAR CT
Newport Beach
CA
92663
1
SUNDANCE DR
Newport Beach
CA
92663
6
STARFISH CT
Newport Beach
CA
92663
9
SUNDANCE DR
Newport Beach
CA
92663
7
STARFISH CT
Newport Beach
CA
92663
15
SUNDANCE DR
Newport Beach
CA
92663
10
STARFISH CT
Newport Beach
CA
92663
19
SUNDANCE DR
Newport Beach
CA
92663
12
STARFISH CT
Newport Beach
CA
92663
11
LATITUDE CT
Newport Beach
CA
92663
18
STARFISH CT
Newport Beach
CA
92663
7
SEAMIST CIR
Newport Beach
CA
92663
19
STARFISH CT
Newport Beach
CA
92663
15
SEAMIST CIR
Newport Beach
CA
92663
21
STARFISH CT
Newport Beach
CA
92663
8
SANDFLOWER CT
Newport Beach
CA
92663
1
SAND DOLLAR CT
Newport Beach
CA
92663
11
SUNDANCE DR
Newport Beach
CA
92663
5
STARFISH CT
Newport Beach
CA
92663
9
LATITUDE CT
Newport Beach
CA
92663
23
STARFISH CT
Newport Beach
CA
92663
10
LATITUDE CT
Newport Beach
CA
92663
6
SAND DOLLAR CT
Newport Beach
CA
92663
16
LATITUDE CT
Newport Beach
CA
92663
9
SAND DOLLAR CT
Newport Beach
CA
92663
19
LATITUDE CT
Newport Beach
CA
92663
10
SAND DOLLAR CT
Newport Beach
CA
92663
15
SAND DOLLAR CT
Newport Beach
CA
92663
17
SAND DOLLAR CT
Newport Beach
CA
92663
18
SAND DOLLAR CT
Newport Beach
CA
92663
2
STARFISH CT
Newport Beach
CA
92663
3
STARFISH CT
Newport Beach
CA
92663
9
STARFISH CT
Newport Beach
CA
92663
Attachment Z-1 Page 6 of 18
20-522
Attachment Z-1 Page 7 of 18
20-523
Attachment Z-1
Addresses
of Residences in Neighborhoods Served by Third Party
As of the Effective Date
Street Number
Street Name
City
State
ZIP
14
STARFISH CT
Newport Beach
CA
92663
16
STARFISH CT
Newport Beach
CA
92663
3
SAND DOLLAR CT
Newport Beach
CA
92663
4
SAND DOLLAR CT
Newport Beach
CA
92663
7
SAND DOLLAR CT
Newport Beach
CA
92663
8
SAND DOLLAR CT
Newport Beach
CA
92663
12
SAND DOLLAR CT
Newport Beach
CA
92663
1
STARFISH CT
Newport Beach
CA
92663
4
STARFISH CT
Newport Beach
CA
92663
8
STARFISH CT
Newport Beach
CA
92663
15
STARFISH CT
Newport Beach
CA
92663
17
STARFISH CT
Newport Beach
CA
92663
20
STARFISH CT
Newport Beach
CA
92663
25
STARFISH CT
Newport Beach
CA
92663
14
SURFSIDE CT
Newport Beach
CA
92663
6
SURFSIDE CT
Newport Beach
CA
92663
21
SURFSIDE CT
Newport Beach
CA
92663
9
RIPTIDE CT
Newport Beach
CA
92663
15
RIPTIDE CT
Newport Beach
CA
92663
9
SURFSIDE CT
Newport Beach
CA
92663
2
NORTHWIND CT
Newport Beach
CA
92663
4
NORTHWIND CT
Newport Beach
CA
92663
6
NORTHWIND CT
Newport Beach
CA
92663
20
LATITUDE CT
Newport Beach
CA
92663
5
SEAMIST CIR
Newport Beach
CA
92663
1
SANDFLOWER CT
Newport Beach
CA
92663
3
SANDFLOWER CT
Newport Beach
CA
92663
5
SANDFLOWER CT
Newport Beach
CA
92663
6
SANDFLOWER CT
Newport Beach
CA
92663
3
SUNDANCE DR
Newport Beach
CA
92663
22
LATITUDE CT
Newport Beach
CA
92663
6
LATITUDE CT
Newport Beach
CA
92663
7
LATITUDE CT
Newport Beach
CA
92663
8
LATITUDE CT
Newport Beach
CA
92663
12
LATITUDE CT
Newport Beach
CA
92663
14
LATITUDE CT
Newport Beach
CA
92663
17
LATITUDE CT
Newport Beach
CA
92663
9
SEAMIST CIR
Newport Beach
CA
92663
17
SEAMIST CIR
Newport Beach
CA
92663
10
SANDFLOWER CT
Newport Beach
CA
92663
7
SUNDANCE DR
Newport Beach
CA
92663
Attachment Z-1 Page 7 of 18
20-523
Attachment Z-1
Page 8 of 18
20-524
Attachment Z-1
Addresses of Residences in Neighborhoods Served by Third Party
As of the Effective Date
Street Number Street Name
City
State
ZIP
17 SUNDANCE DR
Newport Beach
CA
92663
1 LATITUDE CT
Newport Beach
CA
92663
2 LATITUDE CT
Newport Beach
CA
92663
Attachment Z-1
Page 8 of 18
20-524
Attachment Z-1
Addresses of Residences in Neighborhoods Served by Third Party
As of the Effective Date
2. Residences in Mesa View Neighborhood Served by Third -Party Non -Exclusive
Commercial Franchisee as of the Effective Date
Unit Count: 288
Street Number
Street Name
City
State
ZIP
11
ANONDALE
Newport Beach
CA
92660
12
WESTRIDGE
Newport Beach
CA
92660
10
WESTRIDGE
Newport Beach
CA
92660
8
WESTRIDGE
Newport Beach
CA
92660
6
WESTRIDGE
Newport Beach
CA
92660
17
PALAZZO
Newport Beach
CA
92660
15
PALAZZO
Newport Beach
CA
92660
28
PALAZZO
Newport Beach
CA
92660
2
WESTRIDGE
Newport Beach
CA
92660
1
DARTMOUTH
Newport Beach
CA
92660
3
DARTMOUTH
Newport Beach
CA
92660
5
DARTMOUTH
Newport Beach
CA
92660
7
DARTMOUTH
Newport Beach
CA
92660
9
DARTMOUTH
Newport Beach
CA
92660
15
MARBLE SANDS
Newport Beach
CA
92660
17
MARBLE SANDS
Newport Beach
CA
92660
50
WHITEHALL
Newport Beach
CA
92660
52
VICTORIA
Newport Beach
CA
92660
27
SAN ANTONIO
Newport Beach
CA
92660
38
PALAZZO
Newport Beach
CA
92660
34
PALAZZO
Newport Beach
CA
92660
32
PALAZZO
Newport Beach
CA
92660
28
PALAZZO
Newport Beach
CA
92660
26
PALAZZO
Newport Beach
CA
92660
24
PALAZZO
Newport Beach
CA
92660
22
PALAZZO
Newport Beach
CA
92660
3
SEABLUFF
Newport Beach
CA
92660
5
SEABLUFF
Newport Beach
CA
92660
7
SEABLUFF
Newport Beach
CA
92660
22
PEPPERTREE
Newport Beach
CA
92660
24
PEPPERTREE
Newport Beach
CA
92660
26
PEPPERTREE
Newport Beach
CA
92660
28
PEPPERTREE
Newport Beach
CA
92660
29
LANDPORT
Newport Beach
CA
92660
27
LANDPORT
Newport Beach
CA
92660
25
LANDPORT
Newport Beach
CA
92660
23
LANDPORT
Newport Beach
CA
92660
Attachment Z-1 Page 9 of 18
20-525
Attachment Z-1 Page 10 of 18
20-526
Attachment Z-1
Addresses
of Residences in Neighborhoods Served by Third Party
As of the Effective Date
Street Number
Street Name
City
State
ZIP
35
MARBLE SANDS
Newport Beach
CA
92660
33
MARBLE SANDS
Newport Beach
CA
92660
31
MARBLE SANDS
Newport Beach
CA
92660
29
MARBLE SANDS
Newport Beach
CA
92660
27
MARBLE SANDS
Newport Beach
CA
92660
25
MARBLE SANDS
Newport Beach
CA
92660
23
MARBLE SANDS
Newport Beach
CA
92660
21
MARBLE SANDS
Newport Beach
CA
92660
17
BOARDWALK
Newport Beach
CA
92660
19
BOARDWALK
Newport Beach
CA
92660
7
MADISON
Newport Beach
CA
92660
9
MADISON
Newport Beach
CA
92660
11
MADISON
Newport Beach
CA
92660
15
MADISON
Newport Beach
CA
92660
12
MADISON
Newport Beach
CA
92660
6
REGENTS
Newport Beach
CA
92660
8
REGENTS
Newport Beach
CA
92660
10
REGENTS
Newport Beach
CA
92660
19
SAN ANTONIO
Newport Beach
CA
92660
12
REGENTS
Newport Beach
CA
92660
16
REGENTS
Newport Beach
CA
92660
18
REGENTS
Newport Beach
CA
92660
21
SAN ANTONIO
Newport Beach
CA
92660
23
SAN ANTONIO
Newport Beach
CA
92660
26
SAN ANTONIO
Newport Beach
CA
92660
40
WHITEHALL
Newport Beach
CA
92660
26
SEABLUFF
Newport Beach
CA
92660
24
SAN ANTONIO
Newport Beach
CA
92660
42
WHITEHALL
Newport Beach
CA
92660
6
SHERWOOD
Newport Beach
CA
92660
8
SHERWOOD
Newport Beach
CA
92660
24
SEABLUFF
Newport Beach
CA
92660
22
SAN ANTONIO
Newport Beach
CA
92660
46
WHITEHALL
Newport Beach
CA
92660
22
SEABLUFF
Newport Beach
CA
92660
48
WHITEHALL
Newport Beach
CA
92660
20
SAN ANTONIO
Newport Beach
CA
92660
28
VALERIO
Newport Beach
CA
92660
20
SEABLUFF
Newport Beach
CA
92660
56
VICTORIA
Newport Beach
CA
92660
15
CERVANTES
Newport Beach
CA
92660
Attachment Z-1 Page 10 of 18
20-526
Attachment Z-1 Page 11 of 18
20-527
Attachment Z-1
Addresses
of Residences in Neighborhoods Served by Third Party
As of the Effective Date
Street Number
Street Name
City
State
ZIP
30
VALERIO
Newport Beach
CA
92660
18
SEABLUFF
Newport Beach
CA
92660
58
VICTORIA
Newport Beach
CA
92660
16
CERVANTES
Newport Beach
CA
92660
32
VALERIO
Newport Beach
CA
92660
16
SEABLUFF
Newport Beach
CA
92660
60
VICTORIA
Newport Beach
CA
92660
18
CERVANTES
Newport Beach
CA
92660
41
MONTGOMERY
Newport Beach
CA
92660
14
SEABLUFF
Newport Beach
CA
92660
72
VICTORIA
Newport Beach
CA
92660
20
CERVANTES
Newport Beach
CA
92660
20
MOLINO
Newport Beach
CA
92660
9
SEABLUFF
Newport Beach
CA
92660
76
VICTORIA
Newport Beach
CA
92660
22
CERVANTES
Newport Beach
CA
92660
30
PEPPERTREE
Newport Beach
CA
92660
11
SEABLUFF
Newport Beach
CA
92660
78
VICTORIA
Newport Beach
CA
92660
24
CERVANTES
Newport Beach
CA
92660
31
PEPPERTREE
Newport Beach
CA
92660
15
SEABLUFF
Newport Beach
CA
92660
80
VICTORIA
Newport Beach
CA
92660
21
PEPPERTREE
Newport Beach
CA
92660
29
PEPPERTREE
Newport Beach
CA
92660
20
MARBLE SANDS
Newport Beach
CA
92660
27
PEPPERTREE
Newport Beach
CA
92660
82
VICTORIA
Newport Beach
CA
92660
17
SEABLUFF
Newport Beach
CA
92660
22
MARBLE SANDS
Newport Beach
CA
92660
25
PEPPERTREE
Newport Beach
CA
92660
86
VICTORIA
Newport Beach
CA
92660
19
SEABLUFF
Newport Beach
CA
92660
24
MARBLE SANDS
Newport Beach
CA
92660
23
PEPPERTREE
Newport Beach
CA
92660
3
ANONDALE
Newport Beach
CA
92660
18
BOARDWALK
Newport Beach
CA
92660
26
MARBLE SANDS
Newport Beach
CA
92660
29
SAN ANTONIO
Newport Beach
CA
92660
21
SEABLUFF
Newport Beach
CA
92660
5
ANONDALE
Newport Beach
CA
92660
Attachment Z-1 Page 11 of 18
20-527
Attachment Z-1 Page 12 of 18
20-528
Attachment Z-1
Addresses
of Residences in Neighborhoods Served by Third Party
As of the Effective Date
Street Number
Street Name
City
State
ZIP
16
BOARDWALK
Newport Beach
CA
92660
14
BOARDWALK
Newport Beach
CA
92660
12
BOARDWALK
Newport Beach
CA
92660
10
BOARDWALK
Newport Beach
CA
92660
21
BOARDWALK
Newport Beach
CA
92660
23
BOARDWALK
Newport Beach
CA
92660
25
BOARDWALK
Newport Beach
CA
92660
26
CERVANTES
Newport Beach
CA
92660
25
PALAZZO
Newport Beach
CA
92660
23
PALAZZO
Newport Beach
CA
92660
21
PALAZZO
Newport Beach
CA
92660
19
PALAZZO
Newport Beach
CA
92660
8
BOARDWALK
Newport Beach
CA
92660
6
BOARDWALK
Newport Beach
CA
92660
2
BOARDWALK
Newport Beach
CA
92660
5
BOARDWALK
Newport Beach
CA
92660
7
BOARDWALK
Newport Beach
CA
92660
9
BOARDWALK
Newport Beach
CA
92660
18
SHERWOOD
Newport Beach
CA
92660
24
VALERIO
Newport Beach
CA
92660
26
VALERIO
Newport Beach
CA
92660
11
BOARDWALK
Newport Beach
CA
92660
15
BOARDWALK
Newport Beach
CA
92660
11
DARTMOUTH
Newport Beach
CA
92660
15
DARTMOUTH
Newport Beach
CA
92660
17
DARTMOUTH
Newport Beach
CA
92660
19
MONTGOMERY
Newport Beach
CA
92660
21
MONTGOMERY
Newport Beach
CA
92660
23
MONTGOMERY
Newport Beach
CA
92660
25
MONTGOMERY
Newport Beach
CA
92660
27
MONTGOMERY
Newport Beach
CA
92660
2
SHERWOOD
Newport Beach
CA
92660
28
MARBLE SANDS
Newport Beach
CA
92660
32
SAN ANTONIO
Newport Beach
CA
92660
21
LANDPORT
Newport Beach
CA
92660
7
ANONDALE
Newport Beach
CA
92660
30
MARBLE SANDS
Newport Beach
CA
92660
30
SAN ANTONIO
Newport Beach
CA
92660
28
LYNDHURST
Newport Beach
CA
92660
9
ANONDALE
Newport Beach
CA
92660
32
MARBLE SANDS
Newport Beach
CA
92660
Attachment Z-1 Page 12 of 18
20-528
Attachment Z-1 Page 13 of 18
20-529
Attachment Z-1
Addresses
of Residences in Neighborhoods Served by Third Party
As of the Effective Date
Street Number
Street Name
City
State
ZIP
28
SAN ANTONIO
Newport Beach
CA
92660
20
PEPPERTREE
Newport Beach
CA
92660
41
WHITEHALL
Newport Beach
CA
92660
10
SHERWOOD
Newport Beach
CA
92660
29
CERVANTES
Newport Beach
CA
92660
20
PALAZZO
Newport Beach
CA
92660
43
WHITEHALL
Newport Beach
CA
92660
12
SHERWOOD
Newport Beach
CA
92660
31
CERVANTES
Newport Beach
CA
92660
18
PALAZZO
Newport Beach
CA
92660
59
VICTORIA
Newport Beach
CA
92660
16
SHERWOOD
Newport Beach
CA
92660
20
LANDPORT
Newport Beach
CA
92660
16
PALAZZO
Newport Beach
CA
92660
61
WENTWORTH
Newport Beach
CA
92660
20
LYNDHURST
Newport Beach
CA
92660
22
LANDPORT
Newport Beach
CA
92660
3
LANDPORT
Newport Beach
CA
92660
5
LANDPORT
Newport Beach
CA
92660
7
LANDPORT
Newport Beach
CA
92660
9
LANDPORT
Newport Beach
CA
92660
11
LANDPORT
Newport Beach
CA
92660
8
LANDPORT
Newport Beach
CA
92660
6
LANDPORT
Newport Beach
CA
92660
2
LANDPORT
Newport Beach
CA
92660
3
MARBLE SANDS
Newport Beach
CA
92660
5
MARBLE SANDS
Newport Beach
CA
92660
7
MARBLE SANDS
Newport Beach
CA
92660
9
MARBLE SANDS
Newport Beach
CA
92660
11
MARBLE SANDS
Newport Beach
CA
92660
12
SEABLUFF
Newport Beach
CA
92660
10
SEABLUFF
Newport Beach
CA
92660
8
SEABLUFF
Newport Beach
CA
92660
6
SEABLUFF
Newport Beach
CA
92660
2
SEABLUFF
Newport Beach
CA
92660
15
LANDPORT
Newport Beach
CA
92660
17
LANDPORT
Newport Beach
CA
92660
19
LANDPORT
Newport Beach
CA
92660
18
LANDPORT
Newport Beach
CA
92660
16
LANDPORT
Newport Beach
CA
92660
14
LANDPORT
Newport Beach
CA
92660
Attachment Z-1 Page 13 of 18
20-529
Attachment Z-1 Page 14 of 18
20-530
Attachment Z-1
Addresses
of Residences in Neighborhoods Served by Third Party
As of the Effective Date
Street Number
Street Name
City
State
ZIP
12
LANDPORT
Newport Beach
CA
92660
10
LANDPORT
Newport Beach
CA
92660
19
MARBLE SANDS
Newport Beach
CA
92660
28
SEABLUFF
Newport Beach
CA
92660
63
WENTWORTH
Newport Beach
CA
92660
24
LANDPORT
Newport Beach
CA
92660
22
LYNDHURST
Newport Beach
CA
92660
67
WENTWORTH
Newport Beach
CA
92660
26
LANDPORT
Newport Beach
CA
92660
26
LYNDHURST
Newport Beach
CA
92660
71
VICTORIA
Newport Beach
CA
92660
28
LANDPORT
Newport Beach
CA
92660
30
LYNDHURST
Newport Beach
CA
92660
38
LYNDHURST
Newport Beach
CA
92660
30
LANDPORT
Newport Beach
CA
92660
32
LYNDHURST
Newport Beach
CA
92660
26
MONTGOMERY
Newport Beach
CA
92660
32
LANDPORT
Newport Beach
CA
92660
36
LYNDHURST
Newport Beach
CA
92660
28
MONTGOMERY
Newport Beach
CA
92660
33
CERVANTES
Newport Beach
CA
92660
20
REGENTS
Newport Beach
CA
92660
30
MONTGOMERY
Newport Beach
CA
92660
36
CERVANTES
Newport Beach
CA
92660
22
REGENTS
Newport Beach
CA
92660
32
MONTGOMERY
Newport Beach
CA
92660
34
CERVANTES
Newport Beach
CA
92660
2
MADISON
Newport Beach
CA
92660
11
WINTHROP
Newport Beach
CA
92660
32
CERVANTES
Newport Beach
CA
92660
6
MADISON
Newport Beach
CA
92660
9
WINTHROP
Newport Beach
CA
92660
30
CERVANTES
Newport Beach
CA
92660
8
MADISON
Newport Beach
CA
92660
7
WINTHROP
Newport Beach
CA
92660
29
PALAZZO
Newport Beach
CA
92660
10
MADISON
Newport Beach
CA
92660
5
WINTHROP
Newport Beach
CA
92660
31
PALAZZO
Newport Beach
CA
92660
33
PALAZZO
Newport Beach
CA
92660
35
PALAZZO
Newport Beach
CA
92660
Attachment Z-1 Page 14 of 18
20-530
Attachment Z-1 Page 15 of 18
20-531
Attachment Z-1
Addresses
of Residences in Neighborhoods Served by Third Party
As of the Effective Date
Street Number
Street Name
City
State
ZIP
30
PALAZZO
Newport Beach
CA
92660
42
MONTGOMERY
Newport Beach
CA
92660
40
MONTGOMERY
Newport Beach
CA
92660
38
MONTGOMERY
Newport Beach
CA
92660
36
MONTGOMERY
Newport Beach
CA
92660
34
MONTGOMERY
Newport Beach
CA
92660
15
SAN ANTONIO
Newport Beach
CA
92660
17
SAN ANTONIO
Newport Beach
CA
92660
18
SAN ANTONIO
Newport Beach
CA
92660
16
SAN ANTONIO
Newport Beach
CA
92660
25
CERVANTES
Newport Beach
CA
92660
23
CERVANTES
Newport Beach
CA
92660
21
CERVANTES
Newport Beach
CA
92660
19
CERVANTES
Newport Beach
CA
92660
17
CERVANTES
Newport Beach
CA
92660
7
REGENTS
Newport Beach
CA
92660
2
WINTHROP
Newport Beach
CA
92660
9
REGENTS
Newport Beach
CA
92660
6
WINTHROP
Newport Beach
CA
92660
11
REGENTS
Newport Beach
CA
92660
8
WINTHROP
Newport Beach
CA
92660
15
REGENTS
Newport Beach
CA
92660
10
WINTHROP
Newport Beach
CA
92660
17
REGENTS
Newport Beach
CA
92660
12
WINTHROP
Newport Beach
CA
92660
21
REGENTS
Newport Beach
CA
92660
11
WESTRIDGE
Newport Beach
CA
92660
37
WHITEHALL
Newport Beach
CA
92660
9
WESTRIDGE
Newport Beach
CA
92660
39
WHITEHALL
Newport Beach
CA
92660
7
WESTRIDGE
Newport Beach
CA
92660
26
REGENTS
Newport Beach
CA
92660
5
WESTRIDGE
Newport Beach
CA
92660
28
REGENTS
Newport Beach
CA
92660
3
WESTRIDGE
Newport Beach
CA
92660
30
WHITEHALL
Newport Beach
CA
92660
12
ANONDALE
Newport Beach
CA
92660
32
WHITEHALL
Newport Beach
CA
92660
10
ANONDALE
Newport Beach
CA
92660
36
WHITEHALL
Newport Beach
CA
92660
8
ANONDALE
Newport Beach
CA
92660
Attachment Z-1 Page 15 of 18
20-531
Attachment Z-1
Page 16 of 18
20-532
Attachment Z-1
Addresses
of Residences in Neighborhoods Served by Third Party
As of the Effective Date
Street Number
Street Name
City State
ZIP
38
WHITEHALL
Newport Beach CA
92660
6
ANONDALE
Newport Beach CA
92660
2
ANONDALE
Newport Beach CA
92660
3
MADISON
Newport Beach CA
92660
5
MADISON
Newport Beach CA
92660
Attachment Z-1
Page 16 of 18
20-532
Attachment Z-1
Addresses of Residences in Neighborhoods Served by Third Party
As of the Effective Date
3. Residences in Chatham Court Neighborhood Served by Third -Party Non -
Exclusive Commercial Franchisee as of the Effective Date
Unit Count: 54
Street Number
Street Name
City
State ZIP
11
CHATHAM CT
Newport Beach
CA
92660
62
BELCOURT DR
Newport Beach
CA
92660
42
BELCOURT DR
Newport Beach
CA
92660
48
BELCOURT DR
Newport Beach
CA
92660
32
BELCOURT DR
Newport Beach
CA
92660
20
CHATHAM CT
Newport Beach
CA
92660
24
CHATHAM CT
Newport Beach
CA
92660
38
BELCOURT DR
Newport Beach
CA
92660
1
CHATHAM CT
Newport Beach
CA
92660
6
CHATHAM CT
Newport Beach
CA
92660
2
BELCOURT DR
Newport Beach
CA
92660
4
BELCOURT DR
Newport Beach
CA
92660
29
CHATHAM CT
Newport Beach
CA
92660
58
BELCOURT DR
Newport Beach
CA
92660
18
BELCOURT DR
Newport Beach
CA
92660
22
BELCOURT DR
Newport Beach
CA
92660
36
BELCOURT DR
Newport Beach
CA
92660
40
BELCOURT DR
Newport Beach
CA
92660
52
BELCOURT DR
Newport Beach
CA
92660
23
CHATHAM CT
Newport Beach
CA
92660
25
CHATHAM CT
Newport Beach
CA
92660
26
CHATHAM CT
Newport Beach
CA
92660
22
CHATHAM CT
Newport Beach
CA
92660
8
CHATHAM CT
Newport Beach
CA
92660
2
CHATHAM CT
Newport Beach
CA
92660
10
BELCOURT DR
Newport Beach
CA
92660
12
CHATHAM CT
Newport Beach
CA
92660
60
BELCOURT DR
Newport Beach
CA
92660
64
BELCOURT DR
Newport Beach
CA
92660
46
BELCOURT DR
Newport Beach
CA
92660
50
BELCOURT DR
Newport Beach
CA
92660
3
CHATHAM CT
Newport Beach
CA
92660
5
CHATHAM CT
Newport Beach
CA
92660
9
CHATHAM CT
Newport Beach
CA
92660
21
CHATHAM CT
Newport Beach
CA
92660
26
BELCOURT DR
Newport Beach
CA
92660
Attachment Z-1
Page 17 of 18
20-533
Attachment Z-1
Page 18 of 18
20-534
Attachment Z-1
Addresses of Residences in Neighborhoods
Served by Third Party
As of the Effective
Date
34
BELCOURT DR
Newport Beach
CA
92660
6
BELCOURT DR
Newport Beach
CA
92660
12
BELCOURT DR
Newport Beach
CA
92660
14
BELCOURT DR
Newport Beach
CA
92660
20
BELCOURT DR
Newport Beach
CA
92660
14
CHATHAM CT
Newport Beach
CA
92660
16
CHATHAM CT
Newport Beach
CA
92660
16
BELCOURT DR
Newport Beach
CA
92660
10
CHATHAM CT
Newport Beach
CA
92660
24
BELCOURT DR
Newport Beach
CA
92660
4
CHATHAM CT
Newport Beach
CA
92660
8
BELCOURT DR
Newport Beach
CA
92660
7
CHATHAM CT
Newport Beach
CA
92660
15
CHATHAM CT
Newport Beach
CA
92660
44
BELCOURT DR
Newport Beach
CA
92660
54
BELCOURT DR
Newport Beach
CA
92660
56
BELCOURT DR
Newport Beach
CA
92660
27
CHATHAM CT
Newport Beach
CA
92660
Attachment Z-1
Page 18 of 18
20-534