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C-8823-1 - Agreement for Residential Solid Waste Collection and Recycling Services in Newport Coast
CITY OF NEWPORT BEACH 592 Superior Ave Nowport Beach, California 92663 949 644-3055 1949 646-5204 FAX newportbeachca.gov/municipaloperations February 6, 2024 Attn: Ms. Julie Barreda, Regional Vice President CR&R Incorporated Environmental Services 11292 Western Avenue Stanton, California 90680 RE: Notification of 2023-2024 CPI Adjustment to Billing Rates for C-8823-1, Collection, Transportation, Processing and Diversion of Residential Recyclable Materials, Food Scraps, Green Waste and Collection, Transportation and Disposal of Municipal Solid Waste Dear Ms. Barreda, Per Attachment J of the contract, "...the costs in Attachment D-1 ("Compensation Schedule") shall be adjusted annually each July 1 throughout the Term of the Agreement." The updated compensation schedule may be applied to all work completed on or after July 1, 2023, and includes the CPI adjustments for prior years. Please see the 2023 Rate Adjustment Compensation Calculation for the mutually accepted rate adjustment. The new rates became effective July 1, 2023. Thank you, h Approved on July 13, 2023 (Email) Charles Springer Micah Martin Refuse Manager Deputy Director of Public Works, Municipal Operations Division cc: John Salazar, Acting Deputy Director of Public Works, Municipal Operations Division Springer, Charles From: Martin, Micah Sent: July 13, 2023 4:26 PM To: Julie M. Barreda Cc: springer, Charles Subject: RE: Newport Beach Non -Containerization CPl Increase Attachments: CR&R - 2023 CPI Rate Adjustment.pdf Hello Julie, We have reviewed CR&R's request for a CPI increase for 2023. After thorough evaluation and index verification, we are in agreement with the proposed CPl increase request. Additionally, we acknowledge escalator caps are in alignment with the contract. Please allow this email to serve as written confirmation of our approval of your request, For reference, I have attached the mutually accepted CR&R rate adjustment. Micah Martin Deputy Public Works Director Public Works Department Office: (949) 644-3055 592 Superior Ave Newport Beach, CA 92660 0@0 From: Julie M. Barreda <iulieb@crrmail.com> Sent: July 13, 2023 11:47 AM To: Martin, Micah <MMartin@newportbeachca.gov> Subject: FW: Newport Beach Non -Containerization CPI Increase Hi Micah - This email from Esmeralda triggered me to follow up with you regarding our annual rate adjustment. I Know you mentioned on a call a few weeks ago that you verbally approved it and would send an email or letter confirming. Did you send that and I possibly missed it? City of Newport Beach 2023 Rate Adjustment Compensation Calculation Step One: Calculate Percentage Change in Indices A B C Percent Change Adjustment Factor index Cild Index Value New Index in Index Value ((Column B/Column A)4} Raw 1 Disposal 1 $ 38.34 S 41,31 2 Fuel {2j 149.95 245.221 N 63.5% 3 All Other (Capped at 2.5%) (3) 288.798 305 A58 2.5 Step Two: Determine Components D F F Cost Factor Category Percent Total Weighted Adjustment Factor Index Weighted as a Change in Change % of Index from {Columns D x Ej Component Column (C) Row Total (4) 4 IDisposal (1 27.2% 7.7% 2J% 5 Fuel 1 (2) 1 10.2% 63,5% 6.4% 6 All Other (3) 62.7% 2.5% 1.6% 7 Total (5) 100% S.Oa Total annual change in compensation limited to 51/ peryear. 5.0% Step Three: Apply Percentage Change to Rates 5.8% Actual G H I J Row Rate Categories Current Customer Rate Total Weighted Percentage Change (fmm Column Fj Rate Increase or Decrease (Column G X Column H) C Adjusted Rate (Column G + Column I) 8 Customercallection-City $ 350,538.30 5.0% $ 17,525.92 $ 363,065.22 9 IBUIky Item CnllectianJmanth $ 576.45 5.0% S 28-82 5 605.27 10 Sharps collection/month $ 2,399.25 5.0% $ 119.95 $ 2,519,21 11 HHW Door-to-Door/month $ I2,002.55 5.0% S 600.13 $ 12,602.68 12 Emergency Caflecfon Cast/hoar $ 144.90 5.0% S 725 $ 152.15 13 CQStornerwnedieP- Newport Coast $ 66,586.85 5.0% $ 3,n9.34 $ 69,916.14 14 Enhanced 551383-mandated programs $ 25lr534.51 5.0% $ 12,576.73 $ 264,111.24 15 40-yd Load of Bulk Compostprouided by contractor $ 133.75 5.0% 5 9.19 $ 192.94 16 11 pallet (43 bags) of compost provided by Contractor $ 102.95 5.0% S 5.15 $ 168.10 17 14 pallet load of bagged compost provided by Contractor (48 bags/pallet) $ 2,470.92 5.0% $ 123.55 $ 2,594.47 18 Houdy Cost Per Add;tonal Temporary Customer Service Representative $ 36.75 6.0% $ 1,84 $ 39.59 19 Collection of Nerrcontainerired Materials During Grace Period per fncident $ 2,59 5.0'/ $ 0.13 $ 2.72 2G Extra MSW Card Charge paid by Cfty during Extra Service Charge Delay Period $ 6.39 5.0% S 0.32 $ 6.71 21 Extra Recycling fart Charge paid by City during Extra 5ervfce Charge $ 3.58 5.0% $ 0.1 B 5 3.76 22 ICh.rgc Extra Food Scrap Green Wmte Cart Charge paid by City during Extra Servke Delay Period $ 4.32 5A%a S 022 $ 4.54 23 Standard Valet cart Service Charge paid by City during Extra Service Charge Delay Period $ 9.72 5.0% $ G.44 $ 9.16 24 Premium Valet Cart Service Charge paid by City during Extra Service Charge ❑elay Period $ 29.06 5.0% $ 1.45 $ 30.51 25 Replacement Sure Close"' Kitchen Food Scrap Pail $ 10.45 5.0% $ 0,52 $ 10.97 26 Removal of Nan-mntalnedzed MSW, Green Waste, and/or Recyrlahle Materials $ 2.59 5.0% 5 0.13 $ 2.72 27 JEW,iBrillryfternNckup $ 14,55 6.0% $ 0.73 $ 1538 Step Four: Re -weight Cost Components K L M N 0 Percentage Change In Cost Adjusted Cost Cast Components Cast Component Reweighed to Equal Adjustment Factor Index Component Change in Components Weightings 100% (Column N (Column DI Index (Column (Column K x (Column K+ Row divided by E) Column L) Paw Column M) Column N Total) 28 Disposal (1) 27.2%1 7.7%1 2.1% 29.3% 1 26.6% 29 Fuel (3) 10.2% 63.5% 6.4- 16.696 15.1% 30 Aii Other (Capped at 2.5%) (3) 62.7%1 2.5%1 1.6y 64.2-%l 58.3% 31 Iratal 1 100.0%1 1 110.1% 100.00% (1) Disposal charge at the Orange County LandRll system per agreement to Attachment) (2) Producer Price Index WPLI0531, not seasonally adjusted, Fuels and related products and power, natural gas -average annual change (3) Consumer Prlr Index for AB items less food and energy in Los Angeles -Lang Beach -Anaheim, CA, all urban consumers, not seasonally adjusted (MUR549AMCILIE) average annual change limited to 2.5% per year. (4) First year based on Attachment D,1. Aker the first adjustment, this mfumn comes from Column 1 of the previous year's rate adjustment (5) Total annual change in compensation limited to 5%per year. CRWIc) onvironmental services June 5, 2023 Sent Via Email Mr. Micah Martin City of Newport Beach 100 Civic Center Dr. Newport Beach, CA 92658 Re: 2023/2024 Annual Solid Waste and Recycling Rates Dear Mr. Martin: As provided for in Attachment J of the Agreement between the City of Newport Beach and CR&R Incorporated, the compensation categories as defined in Attachment D-1 and D-2 shall be adjusted annually to reflect the change in the Consumers Price Index (CPI), Producer Price Index (PPI), and change in landfill tipping fees. The index used is the annual average percentage change in the December index of the year prior to the current year for All Urban Consumers all items less food and energy index — all cities. In reviewing the data from the Bureau of Labor Statistics for the year 2021 to 2022 for the Consumers Price Index, the Orange County landfill adjustment as of July 1, 2022, and the Fuel Index, the overall increase in fees amounts to 5%. We have attached the methodology as is detailed in Attachment J of the Agreement. Thank you for your consideration and review, please let me know if you have any questions. As always, it is a pleasure being of assistance to the City of Newport Beach. Respectfully submitted, (�j Lr-�— Julie Barreda Senior Regional Vice President 11292 Western Ave P. 0. Box 125 Stanton. CA 90680 r : 800.826.967 7 r 714,826.9049 (; 714.890.6347 crrwasteservices.com the face of a greener generation City of Newport Beach 2023 Rate Adjustment Compensation Calculation Step One: Calculate Percentage Change in Indices A B C Percent Change New Index in Index Adjustment Factor Index Old Index Value Value ((Column B/Column A)-1) Row 1 Disposal (1) $ 38.34 $ 41.31 7.7% 2 Fuel (2) 149.95 245.221 63.5% 3 JAII Other (Capped at 2.5%) 1 (3) 288.798 305.458 2.5% Step Two: Determine Components D E F Cost Factor Category Percent Total Weighted Weighted as a Change in Adjustment Factor Index %of Index from Change (Columns DxE) Component Column (C) Row Total (4) 4 Disposal (1) 27.2% 7.7% 2.1% 5 Fuel (2) 10.2% 63.5% 6.4% 6 All Other (3) 62.7% 2.5% 1.6% 7 Total (5) 100% 5.0% Total annual change in compensation limited to 5% per year. 5.0% Step Three: Apply Percentage Change to Rates 5.8% Actual G H I J Row Rate Categories Current Customer Rate Total Weighted Percentage Change (from Column F) Rate Increase or Decrease (Column G x Column H) Adjusted Rate (Column G + Column I) 8 Customer collection - City $ 350,538.30 5.0% $ 17,526.92 $ 368,065.22 9 Bulky Item Collection/month $ 576.45 5.0% $ 28.82 $ 605.27 10 Sharps Collection/month $ 2,399.25 5.0% $ 119.96 $ 2,519.21 11 HHW Door-to-Door/month $ 12,002.55 5.0% $ 600.13 $ 12,602.68 12 Emergency Collection Cost/hour $ 144.90 5.0% $ 7.25 $ 152.15 13 Customer collection - Newport Coast $ 66,586.85 5.0% $ 3,329.34 $ 69,916.19 14 Enhanced SB1383-mandated programs $ 251,534.51 5.0% $ 12,576.73 $ 264,111.24 15 40-yd Load of Bulk Compost provided by contractor $ 183.75 5.0%1 $ 9.19 $ 192.94 16 1 pallet (48 bags) of compost provided by Contractor $ 102.95 5.0% $ 5.15 $ 108.10 17 24 pallet load of bagged compost provided by Contractor (48 bags/pallet) $ 2,470.92 5.0% $ 123.55 $ 2,594.47 18 Hourly Cost Per Additonal Temporary Customer Service Representative $ 36.75 5.0% $ 1.84 $ 38.59 19 Collection of Non -containerized Materials During Grace Period per incident $ 2.59 5.0% $ 0.13 $ 2.72 20 Extra MSW Card Charge paid by City during Extra Service Charge Delay Period $ 6.39 5.0% $ 0.32 $ 6.71 21 Extra Recycling Cart Charge paid by City during Extra Service Charge $ 3.58 5.0% $ 0.18 $ 3.76 22 Extra Food Scrap/Green Waste Cart Charge paid by City during Extra Service Charge Delay Period $ 4.32 5.0% $ 0.22 $ 4.54 23 Standard Valet Cart Service Charge paid by City during Extra Service Charge Delay Period $ 8.72 5.0% $ 0.44 $ 9.16 24 Premium Valet Cart Service Charge paid by City during Extra Service Charge Delay Period $ 29.06 5.0% $ 1.45 $ 30.51 25 Replacement Sure Close- Kitchen Food Scrap Pail $ 10.45 5.0%. $ 0.52 $ 10.97 26 Removal of Non -containerized MSW, Green Waste, and/or Recyclable Materials $ 2.59 1 5.0 % $ 0.13 $ 2.72 27 Extra Bulky Item Pickup 1 $ 14.65 1 5.0%1 $ 0.73 $ 15.38 Step Four: Re -weight Cost Components K L M N O Adjusted Cost Cost Components Percentage Change In Cost Cost Component Reweighed to Equal Adjustment Factor Index Component Change in Components Weightings 100%(Column N Index (Column (Column K x (Column D) (Column K+ Row divided by E) Column L) Column M) Column N Total) Row 28 Disposal (1) 27.2% 7.7% 2.1% 29.3% 26.6% 29 1 Fuel (2) 10.2% 63.5% 6.4% 16.6% 15.1% 30 All Other (Capped at 2.5%) (3) 62.7% 2.5%1 1.6% 64.2% 58.3% 31 JTotal I 1 100.0% 110.1% 100.009/6 (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 1 of the previous year's rate adjustment (5) Total annual change in compensation limited to 5% per year. 1 co t V 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 jf-4WPi ay 11, 2022 This Page is Intentionally left Blank 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 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 4.073 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.B Noise............................................................................................................................................................................................24 4.08.0 Private and Public Streets...............................................................................................................................................24 4.08.D Customer Privacy.................................................................................................................................................................26 4.09 Litter Abatement...........................................................................................................27 4.09.A Minimization of Spills........................................................................................................................................................27 4.09.B 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.B Notice to Customers............................................................................................................................................................30 4.10.0 Contractor to Segregate and Dispose........................................................................................................................30 4.10.D 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 -2- ARTICLE 5: TRANSPORTATION AND DISPOSAL OF MSW OR PROCESSING OF RECYCLABLEMATERIALS............................................................................................................... 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 -3- 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 72 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.D 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.E 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 in 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 ofCity 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 -5- 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 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 -7- 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.D 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 in 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 91 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 I I day of Pei 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: -10- AGREEMENT -11- 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. -12- 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 -13- 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. -14- 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 -15- 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 5n 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. -17- 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 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 -19- 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 -20- 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 -21- • 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. -22- 4.07.B 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, -23- 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. 4.08.13 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 -24- 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 -25- 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.D 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. -26- 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 -27- 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 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, -29- 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.) 4.10.13 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 -30- 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 -31- 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 -32- 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 -33- 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 9CM implementation of such additional and/or expanded Diversion service(s), the provisions of Section 4.11 of the Agreement shall apply. -35- 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 -36- 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 -37- 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. 191:1 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 EM103 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, 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. -41- 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. -42- 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 -43- 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 MIA 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 -45- 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. 6.06.13 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, 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 -47- 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. in 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 E0 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 -50- 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. 7.03.13 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- -51- 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.D Cleaning and Maintenance. 7.03.13.1 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 -52- 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. -53- All graffiti shall be removed or painted over within two (2) business days of discovery. 7.03.D.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.D.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.D.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 -54- 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 -55- 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 IKI 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.E 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 -57- 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 'M:1 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 -59- 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 DVI R 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 .n 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. 7.04.13 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 -61- 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 -62- 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 -63- communicate effectively in English (both orally and in writing). An order given to supervisory personnel shall be deemed delivered to Contractor. 7.05.13 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 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, -65- 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 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 -67- 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.H.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 ID 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.E 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 14.07.13, 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 -70- 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. -71- 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. -72- 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. -73- 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. -74- 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. 8.01.13 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 -75- 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. 8.04.13 Availability of Representative. A knowledgeable representative of the Contractor shall be available during office hours to communicate with the City and -76- 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) -77- 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 IN 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. 1 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 -79- 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 :e 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 no 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. EN 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 t:31 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 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. so 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 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 no 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 - so 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. 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 m 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. 9.03.13 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, -91- 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. -92- 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 -93- 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 -94- 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 -95- 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 Wel 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. 9.07.13 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 -97- 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. go 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 Ma 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. -100- 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 -101- 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 -102- 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 -103- 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 Nor& 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. 11.02.13 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 -105- 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 -106- 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 -107- 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 �: 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 -109- 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 -110- 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 -111- 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, -112- 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 -113- 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 -114- 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. -115- 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 -116- 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 -117- 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. -118- 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 -119- any proceedings required under Article XI IID, 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- -120- 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. -121- 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, -122- Contractor shall provide all necessary Carts (for both Recyclable Materials and Food Scraps/Green Waste), public outreach materials, Sure CloseTm 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.B 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 -123- 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 -124- 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, CoPtractor'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. -125- 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 -126- 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, -127- 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 -128- 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, -129- 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 -130- 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 -131- 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 -132- 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 -133- 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 m e. Contractor Initial Her City Initial He 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: -134- 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 -135- 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. -136- 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 -137- 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 -138- 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 9.056 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]. NaRll 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 re u ring 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. -140- 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 -141- 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 -142- 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. -143- 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 -144- 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. 14.02.13 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 -145- 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 -146- 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 -147- 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 NMI represent the City in all matters pertaining to the services to be rendered pursuant to this Agreement. 14.07.13 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 -149- 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 -150- 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.B 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, -151- 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.D 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; -152- (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 -153- 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 -154- 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. -155- 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 -156- 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. -157- 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. -158- 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 -159- 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 -160- 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 -161- 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 -162- 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; -163- 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. -164- 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. -165- 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. CONTR�A/TOR / CITY OF N PO ACH By: �i Mayor ATTE CITY 0 City APPROV AS TO FORM qua By: �- oa�� ity Attorney -166- 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 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 /_ -7 , 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 Attachment A Page 1 of 10 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 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. Attachment A Page 3 of 10 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.) Attachment A Page 4 of 10 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. Attachment A Page 5 of 10 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, Attachment A Page 6 of 10 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") Attachment A Page 7 of 10 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. Attachment A Page 8 of 10 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 Attachment A Page 9 of 10 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 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 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 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 Attachment B Scope of Work Page 3 of 38 Attachment B Scope of Work 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 Attachment B Scope of Work Page 4 of 38 Attachment B Scope of Work 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 Attachment B Scope of Work Page 5 of 38 Attachment B Scope of Work 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 ScrapNard 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 Attachment B Scope of Work Page 6 of 38 Attachment B Scope of Work 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 Attachment B Scope of Work Page 7 of 38 Attachment B Scope of Work 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 Attachment B Scope of Work Page 8 of 38 Attachment B Scope of Work 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. Attachment B Scope of Work Page 9 of 38 Attachment B Scope of Work 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. Attachment B Scope of Work Page 10 of 38 Attachment B Scope of Work 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. Attachment B Scope of Work Page 11 of 38 Attachment B Scope of Work 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. Attachment B Scope of Work Page 12 of 38 Attachment B Scope of Work 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 Attachment B Scope of Work Page 13 of 38 Attachment B Scope of Work 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 TM11 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 TM11 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 CloseTm 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 Attachment B Scope of Work Page 14 of 38 Attachment B Scope of Work 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 Attachment B Scope of Work Page 15 of 38 Attachment B Scope of Work 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 (Le. 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 Page 16 of 38 Attachment B Scope of Work 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 Attachment B Scope of Work Page 17 of 38 Attachment B Scope of Work 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. Attachment B Scope of Work Page 18 of 38 Attachment B Scope of Work 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. Attachment B Scope of Work Page 19 of 38 Attachment B Scope of Work 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 Attachment B Scope of Work Page 20 of 38 Attachment B Scope of Work 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. Attachment B Scope of Work Page 21 of 38 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, the 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 Attachment B Scope of Work 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. Attachment B Scope of Work Page 23 of 38 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 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. Attachment B Scope of Work Page 25 of 38 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 Attachment B Scope of Work Page 26 of 38 Attachment B Scope of Work 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. Attachment B Scope of Work Page 27 of 38 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. Attachment B Scope of Work Page 28 of 38 Attachment B Scope of Work 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. Attachment B Scope of Work Page 29 of 38 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. Attachment B Scope of Work Page 30 of 38 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 TM11 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 Attachment B Scope of Work Page 31 of 38 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 ScrapsNard 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 Attachment B Scope of Work Page 32 of 38 Attachment B Scope of Work 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 1st, 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 311 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 Attachment B Scope of Work Page 33 of 38 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, Attachment B Scope of Work Page 34 of 38 Attachment B Scope of Work 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 Attachment B Scope of Work Page 35 of 38 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 Attachment B Scope of Work Page 36 of 38 L• 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) Co -Collected Food All food, fruits, vegetables, Scraps/Green Waste 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 Attachment B Scope of Work 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-compostable" by Contractor's Composting Facility. Rocks, dirt, sand, plastic bags, MSW, Single -Stream 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 Attachment B Scope of Work Page 38 of 38 Recyclables, pet waste, Hazardous Waste, tree trunks/stumps/branches greater than 3" in diameter o -TocFc o `m. do ?d ^A ^ ^A as o -n 3. " a 5 'c < $. c o :-9 ri F =nA nm �, a' p° az a ❑� s 0 o v o - 3 c ° n o io m y ° b o °° � S v 3 m ^ n m m a� =a� d x�� a E f . '°°° °° c o. E d. u s m d °.. n n < 3 gnr o-dg<o ,'� v m F o. w' ^' 3 -> " - s m a_ " w ., 2 ^w ad -� 3 n ^IP - a ^ n n E _ a 7 R N °-' A » `° wA. ° • °' F R w o^�A �i ° o 3a �°°. v aQd,o ag' =9 z`•'�pG o 7q d$ a n 'p. o K m o c d a' �O 3' �° ° 3..s� "3.-. Mon a ��° m ^' 2, o°" v £ m 5. ? me _._. = 9 'm a °� �.� n n f `� n w 3 n-� Qm ado' r, w p o ^- o a n -. opd EL n °^° E 3 p a z 'n _ T a w c a '' �n-G cd c 'fid n<°'- _ °'°'�o. x•".t„^ of ° m '° o� u }� "m zo=@ o S �' 'u<� m S o �' ' ? _ - n ' N ° ° E E ••� m n z -W 'zc , n °' >; W. = v ° s o w F^� w. '��° ''^„ ° F �° `n n- no_ n'9°G -n°^° 'o ��a A� n o of pNp _ 2 _ nws ° zo w 2� � � 12. c fl n 9 R ? n 3 s n n n o pp - 3 m Sc s s�mc 3 �O� vS F.pP ' a F Is ®®�■i■iii■■■ice■■■■■■■i■■�■�■�i� F D Q� n S 3 m 3 R m 3 m d M 0 -o d 3 d 7 CL H n S fD CL C m 00eeaa�aea ■mow■�■�■� ■�■■■oma■� n 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 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 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 CloseT"' $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. 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 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. 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 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 114 to 3/4 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 114 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 114 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 1.10. 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 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. 1.12. 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 • 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 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 I � Number Manufacturer Truck/Body Model Route Year Type of Fuel (e.g. CNG, biodiesel, LNG, etc.) Planned Replacement Year Truck Body 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 Split Body TBD Peterbilt Kann 2021 RCY/Organic RNG 2029 Rear -loader 67-67 Ford McNeilus 2016 MSWI 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 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 /D Truck/Body 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 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 (7.05.1-1) 2 ( 18 months) 1 (Remainder of term) Operations and Customer Liaison to the Cit (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 Collection and Transportation Headcount (leave blank if the position is not uroaosed): 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 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 3 S S U 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: _, 2016 County Notice Address: Director OC Waste and Recycling 300 N. Flower, Suite 400 Santa Ana, CA 92703 2016 Amendment to Waste Disposal Agreement fb 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 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 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 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 "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 anew 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 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 1. 2 1 ( Co By: Aaron C. Harp City Attorney ATTEST: Dater c By: Leilani I. Brown City Clerk APPROVED AS TO FORM: COUNTY COUNSEL ORANGE COUNTY, CALIFORNIA By r -Tames Steinmann, Deputy 2016 Amendment to Waste Disposal Agreement COUNTY OF ORANGE By xvd Dire r, OC W e & ecycling CITY OF NEWPORT BEACH, a California municTit al corporation Date: 20/10 By: Z44" Diane B. Dixon Mayor 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 2,63 8,746 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 22483,256 23,170,061 2,483,256 25,653,317 APPENDIX 5 PARTICIPATING CITY ALLOCATION PURSUANT TO SECTION 3.6 City Anaheim Aliso Viejo Buena Park Brea Costa Mesa Costa Mesa Sanitary District Cypress Dana Point Fullerton Fountain Valley Garden Grovel GG Sanitary District Huntington Beach Irvine Laguna Beach Laguna Hills Laguna Niguel Laguna Woods La Habra Lake Forest La Palma Los Alamitos Mission Viejo Newport Beach Orange Placentia Rancho Santa Margarita Santa Ana San Clemente San Juan Capistrano Seal Beach Stanton Tustin Villa Park Midway City Sanitary District (Westminster) Yorba Linda County Unincorporated Totals 2016 Amendment to Waste Disposal Agreement Allocation Percentage for Purposes of Section 3.6 13.18% 0.67 2.34 2.28 2.18 1.48 2.56 0.99 4.10 1.76 7.17 6.13 8.22 1.14 0.74 1.36 0.41 1.69 2.45 0.32 0.58 2.42 3.68 4.90 1.58 1.11 10.60 1.40 1.23 0.82 1.62 1.42 0.21 2.13 1.78 3.35 100% Allocation of Initial Payment $711,509 36,416 126,275 123,085 117,936 79,976 138,115 53,278 221,271 95,217 387,197 330,807 444,036 61,796 40,098 73,341 22,274 91,431 132,214 17,325 31,362 130,902 198,946 264,468 85,116 60,009 572,184 75,728 66,420 44,292 87,287 76,648 11,081 114,893 96,344 180,723 $5,400,000 ��WPoRT CITY OF 15: - NEWPORT BEACH C9GIFOFRL 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. DISCUSSION: 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 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 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 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 9-4 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 2416 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 Attachment B M 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 therefore, agreed as follows: 2016 Amendment to Waste Disposal Agreement 9-6 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 WA 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 201.9-20. 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 9-8 Attachment B "SECTION 6.1 EFFECTIVE DATE AND TERM (A) Initial Tenn. 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 formattached 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 9-9 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: 2 2 ((y By: _ aL��� Aaron C. Harp City Attorney ATTEST: Date: M Leilani I. Brown City Clerk APPROVED AS TO FORM: COUNTY COUNSEL ORANGE COUNTY, CALIFORNIA 0-0 James Steinmann, Deputy 2016 Amendment to Waste Disposal Agreement COUNTY OF ORANGE M Director, OC Waste & Recycling CITY OF NEWPORT BEACH, a California municipal corporation Date: By: Diane B. Dixon Mayor 9-10 APPENDIX 2 County Acceptable 'Waste Tonnage Target to be Used for Purposes of Section 4.2(b) Uin-n1 V--- FY —mow 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 2,63 8,746 8,044,149 2,597,017 101641,166 2,558,522 13,199,688 2,52005 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 9-11 Attachment B APPENDIX 5 PARTICIPATING CITY ALLOCATION PURSUANT TO SECTION 3.6 Anaheim Aliso Viejo Buena Park Brea Costa Mesa Costa Mesa Sanitary District Cypress Dana Point Fullerton Fountain Valley Garden Grove/ GG Sanitary District Huntington Beach. Irvine Laguna Beach Laguna Hills Laguna Niguel Laguna Woods La Habra Lake Forest La Palma Los Alamitos Mission Viejo Newport Beach Orange Placentia Rancho Santa Margarita Santa Ana San Clemente San Juan Capistrano Seal Beach Stanton Tustin Villa Park Midway City Sanitary District (Westminster) Yorba Linda County Unincorporated Totals 2016 Amendment to Waste Disposal Agreement Allocation Percentage for Purposes of Section 3.6 13.18% 0.67 2.34 2.28 2.18 1.48 2.56 0.99 4.10 1.76 7.17 6.13 8.22 1.14 0.74 1.36 0.41 1.69 2.45 0.32 0.58 2.42 3.68 4.90 1.58 1.11 10.60 1.40 1.23 0.82 1.62 1.42 0.21 2.13 1.78 3.35 100% Allocation of Initial Payment $711,509 36,416 126,275 123,085 117,936 79,976 138,115 53,278 221,271 95,217 387,197 330,807 444,036 61,796 40,098 73,341 22,274 91,431 132,214 17,325 31,362 130,902 198,946 264,468 85,116 60,009 572,184 75,728 66,420 44,292 87,287 76,648 11,081 114,893 96,344 180,723 $5,400,000 a • • WASTE DISPOSAL AGREEMENT CJ Between THE COUNTY OF ORANGE, CALIFORNIA and the aff OF NEWPORT BEACH Dated 41 Z'8 12009 Exemdion Copy County Authorization Date: City Authorization Date: March 24 09 April 28; 2009 County Notice Address: City Notice Address: Director General Services Director OC Waste & Recycling 3300 Newport Boulevard 300 N. Flower Street, Suite 404 Santa Ana, CA 92703 Newport Beach, GA 92663 Exemdion Copy TABLE OF CONTENTS Page ARTICLE I DEFINITIONS AND 04'TERPRETATION Section1.1 DEFINITIONS .............................. ............................................................. I., ....... I., .......................... 2 Section1.2 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 COUWY.................................................9 ARTICLE III DELIVERY AND ACCEPTANCE OF WASTE AND PRONTSION OF DISPOSAL SERVICE Section 3.1 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 Section4.2 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 52 CITY CONVENIENCE TERMINATION ..................... .............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 Execution Copy ARTICLE VII GENERAL PROVISIONS Section 7.1 OPERATION AND MAINTENANCE OF THE DISPOSAL SYSTEM .......................................26 Section 7.2 UNCONTROLLABLE CIRCUMSTANCES GENERALLY ........................................................26 Section 73 INDEMNIFICATION ............................................................................................... I ....... I ............. 27 Section 7.4 RELATIONSHIP OF THE PARTIES ...........................................................................................27 Section 7.5 LIMITED RECOURSE . ............................................... ................ ................................................. 27 Section 7.6 PRE-EXISTING RIGHTS AND LIABILITIES ............................................................................. 27 Section 7.7 NO VE5T ED.RJGHTS .................................. I ...................... . .......... ...............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 ..................... I... .................................................................................. 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 EST19ATED ANNUAL TONNAGE APPENDIX CUMULATIVE TONNAGE TARGETS APPENDIX 3 CUMULATIVE CAPITAL OOSTS APPENDIX 4 FORM OF HAULER ACKNOWLEDGEMENT EX0096= COPY 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 generat 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 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 fortis in, and subject to the terms and conditions of the Original V4rDA. 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 eater into this agreement to extend, amend and restate the Original WDA, on the terms and conditions set forth herein. The County and City aclmowledge 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 environmeniai 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 pian, manage, operate and fwance 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 • ARTICLE I DEFINITIONS AND INTERPRETATION • SECTION I . I 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 spen# 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 Lew. "Act" means the California Integrated Waste Management Act of 1489 (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 appeadix 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 Govertunental Body having jurisdiction, applicable from time to time to the siting, design, permitting, acquisition, construction, equipping, Enancing, 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, enviretunental 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 lnfrastruchire" (Object Code 4200) or "Equipment" (Object Code 4000) in the County of Orange — Chart of Accounts, or any successor accounting or reporting systems utilized by the County. "CEQA" means the California Environmental Quality Act, codified at Cal. Pub. Res. Code Section 21000 ei 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 9641 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 ft 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 judgmeat is not the result of willful or =&=gent action, error or Execution Copy 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, interruption, 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 on the cover page of this Agreement and panty 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" weans the date on which the obligations of the parties hereto commence, 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 tho 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. execution Copy "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 25251 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 Servicers" 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 wasto disposal operations at three active landfills (Olinda Alpha, Frank R. Bowerman and Prima Deshecha); four regional Household Hazardous Waste CoDection 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 M.), and Tides 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; oi• (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 seg.) and the regulations contained in 10 CFR Part 40. Execution Copy "Imported Acceptable Waste" means A=ptable haste 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 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%, whichever is lower. "Participating City" means any city or Sanitary District executing a Disposal Agreement in accordaam 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 Adjushnent confirmed by the United States Bankruptcy Court Ceatral District of California in that Conformed Order Confirming Modified Second Amended Plan of Adjustment, filed May 17, 1996. "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 Waster 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 Castrol 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) Toxicfignitablelcorrosivelreactive; and (3) Carcinogeniclmutagewiedteratogeaic; which are discarded from households as opposed to businesses. Qualified Household Hazardous Waste shall not inelude Unacceptable Waste. Execution Copy "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°x6 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 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 fmm 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 M(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 soum 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 2,040 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; explosively ordnance, bighly flammable substances, and noxious materials and lea&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 thereo4 agricultural equipment, trailers, marine ExcWtion Copy 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. "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 RET Tl' N. In this fit, unless the context otherwise requires: (A) References Hereto. The terms "hereby", "hereof', "herein", "hereunder" and any similar teams 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) hnsons. 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. 'Me 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) Tlo Third Party Beneficiaries. Nothing in this Agrecanent is intended to confer on haulers or any other person oilier 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 shah constitute but one and the same Agreement. BcccutiOn Copy (G) Apulicable Lay. 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 fiustrates the underlying primary purpose of the Agreement. (1) Iatngration• Preservation of Certain Agreements. This Agreement contains the entire agreement between the parties with respect to the transactions contemplated hereby. Thin 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 called Frank R Bowerman Landfill); 4) MOU, dated May 16, 1995, between the City of Irvine and the County of Orange regarding importation of out -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) andfill;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, betwom the County and the City of Irvine. (J) itais. 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 rechals shall not be used to interpret the provisions of the Agreement. ARTICLE 11 REPRESENTATIONS AND WARRANTIES SECTION 2.1 REPRESENTATIONS AND WARRAMMS 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. Execiufon Copy (B) Dug- Authorizatign. 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 COt1NfX. 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 DELWERY OF WASTE. (A) Waste pisposal 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) Reckcled 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 Agreesnant 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 practicesource 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 Deliv gd 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 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 fon 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. FX=Aion Copy (D) Pow—cr 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 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) Wase 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 HauJers, 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 Wage 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 AI r=nent 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 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) UgW QRll@gges 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 10 Exwution Copy Franchise Hauler or any other persori, 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 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 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, roll -off box), customer service levels, tonnage delivered by transfer station or material recovery facility utilized, and other related information. (1) Ci Actio Affecting 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 tate County hereunder, and not to lake or omit to take any action with respect to Controllable Waste or its caollection, 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 SubLfiMi . Nothing in this Agreement shail 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 hexetmder, 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 Ed Rrstru,cturina. 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 Dishict 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 OF DISPOSAL SERVICES BY THE COLTN'�. (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 11 Execution Copy 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 aU 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) Puiicular 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 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 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 cured 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 Amt. 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 meat or methods then bring 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. SECT ION 3.3 COU= R1CM ILL REFUSE WASTE. (A) Wt Qf 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 bas 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. 12 &MUtion Copy (B) hicatification of Unacc;ptable 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 ff zardous Substances. The parties acknowledge that the Disposal System has not been designed or permitted, and is not intended to be used in any mariner 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 HgwAQus 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 Taste 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 in accordance with Applicable Law. (E) Lo_1jrce_-SOxAted Hous old Hazardous W te, The County 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 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 Soureo-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 A UNNCOB&MTED 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 noxi -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 bast 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 expoim of any such Legal Proceeding or other challenge (with respect to non -recycled Acceptable Waste generated in the Unincorporated Area). 13 Execution Copy SECTION 3.5 MISCELLANEOUS OPERATIONAL MATTERS. (A) 9gerating_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) SWes and M ghi g. 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) Reyiu of Rew.rds. 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 SYST�. (A) On or Before T )J ' 1!17, 20 9 . On or before [120 DAYS AFTER BOARD APPROVAL), the County shall have the right to Anter 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 germs 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 cap�aci:ty).��y (B) ,After ft7 Q d 2009. After [120 DAYS AFTER BOARD APPROVALI the County shall have the right to enter into waste disposal agreements with Change 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 10.6 higher than the Contrail Rate unless the County determines it is in the vest 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 tiara, 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 Aoc moble WasM 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 cmuditions that the County determines to be necessary to taisure 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 c artifies 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 Iater 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 Change County Public 14 Execution Copy 0 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. (U) 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) Apniication 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 al! 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 Syst rr4 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 panties 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 CO= PROVISION OF WASTE DIVE$SION SERVICES. (A) County -Wide Rmycling SWdces. 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 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) Sgparate City -Com= Diversion Service A¢rceanents. 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 PAYMENT Qf CONTRACT RATE The City acknowledgm 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 sbM 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 CQW ACT RATE. (A) Establish) t 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, 2010, in both cases contingent on the delivery to the Disposal System of an amount of Acceptable Waste at 15 Execution Copy 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 eiaims 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 Casts 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 shaU 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 insult 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 AeM able Waste Shortfall. In the event that the actual amount of County Acceptable Taste delivered to the Disposal System at the end of any Contract Yew 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 sloes 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 16 Execution Copy • • 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 J se of Remedies. In the event that, during any Contract Year, waste deflveries 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(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, rattier than a lump sum payment. (E) Special Chang. 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 eutxendy 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 CUUROOOOSAO ("CPT") as measured from the October 21 months prior to the rate adjustment to the October immediately preceding the rate Austment. 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 I and year 2 respectively in the following example _ Formula to calculate percentage change in the Contract Rate: Step 1: October Year 2 CPT October Year 1 CPI - 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 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 42(F) will take place until the October CP1 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 `]rear 1" in calculating the change in the Contract Rate. 17 EXWW;on Copy For example, if the CPI is measured as follows: October 2009 = 205, October 2010 a 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(l). (G) Adi_ustment 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 at 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 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). (H) Calculation of Cumulative Inflation Rate. 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 GPI of calculation year / CPI for July 2008) Year of CaleulabOa Ratio July 1 2008 1.0000 rut 1 2009 1.0356 July 1 2010 1.0723 In the event t 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 pns ant to this section 4.2ft such adjustment shall be applied to the Contract Rate effective until June 30, 20I0, and the Contract Rate effective July 1, 2010. 4.2(I). Adjustments pursuant to this Section 4.2" shall not require compliance with the provisions of Section (I) Procedure for Rate djustments. In the event the County determines that it is entitled to an adjustment of the Contract state pursuant to Section 4.2(A) (other than 4.2(A)(iv)) or Section 4.2(B), it shall utilize the procedures described m this Section 4.2(I). 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 SupeMsors, 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 circumstamce; certification by the County that it has implemented the remedies described in Section 4.2(A) or (B) prior to requiring the rate adjustmmt; 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 18 RKM60n Copy 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 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(3) are utilized, but' ubject to potential reimbursement pursuant to clause (11) of Section 4.2(J). (.l) 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(l), Participating Cities which, in the aggregate, accounted for more than 50'110 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(3), 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 de=n -bed 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 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 m 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 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(l), any materials fled or lodged with the Board of Supervisors and the Orange County 19 Execution Copy 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) 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 (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 elate set by the court in the ar 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 patties 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 Deternunation Stipulation, the City shall., within 30 days of the court's denial of such requested order, file with the court and personally save 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(3) 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 Detminfioion 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 20 Eaacutioa Copy 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 readers a decision, and to any appeal or review of the decision of the court. SECTION 4.3 RESPONSIBILITY FOR PAYMENT OF TIDE QQNTRACT 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) P -U t b� 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) Diutes. 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 34 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 TBE CONTRACT DATE. The County shall continue to bill Contract Rates after the Commencement Date, in the san=e manner as it has customarily billed tipping fees. Subject to the other provisions of this Agreemerd, 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 fiords in order to constitute "Restricted Reserves" hereunder, and may be, commingled with 21 Execution Copy 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 team 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 mond 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 Comecii.ve 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, reprepting working capital of the Disposal System.. SECTION 4.b AUDITED F_ TN�TG� STATE S. 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 (dew iiring 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 Contract Year and revenue and expenses for the Contract Year. SECTION4.7 Akj�WAL_UPDATE OF -YEAR Fil'�iA1�+iCiAL PROTECtION. 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 foil years of prior actual data and ten years of future projections including the following elements: 22 Fxc=im Copy 1. County Acceptable Waste, in tons; 2. Imported Acceptable Waste, in tons; 3. 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 BCH. The parties agree that in the event either party breaches any obligation under this Agreement or any repress station 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 speck 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 end Section 5.3 hereof or as otherwise provided in this Agreement. SECTION 5.2 OW CONVENIENQTE TON. 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 ternainate 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 pumumt 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 best 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 23 )execution Copy 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 -C-ounty. 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 Performa arty 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 tominate 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 WAM S. No action of the County or the City pursuant to this Agreement (including, but not limited to, any investigation or payu=t), 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 RES QLU ITQN. 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 covets of the State of California having appropriate jurisdiction. ARTICLE V1 TERM SECTION 6.1 EFFECTM DATE Alm TERM. (A) Initial Terms. 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 culier 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) . Qntio}r tg &eaew. 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 Is m. In connection with the genies' right to renew this Agreement for an additional tear, -year terra, purmmnt to Section 6.1(B), the parties shall, on or before June 30, 2018, negotiate an applicable change in the Contrast Rate for such renewal term. In determining arty revisions to the 24 1 xomion Copy 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 Rights. The rights and obligations of the parties hereto pursuant to Sections 3.1(Ex2), 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. SEMON 6.2 COMMENCEMENT DA (A) 0—bliaatipns of the Parties Erior to the Comment eaxent 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 treasonable 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 6cpense, shall cooperate fully with each other and the other Participating Cities in connection with the foregoing undeatslang. Until the Commencement Date occurs, the Original WDAs shall remain in full force and effect. (13) Condition to the Comfncncem,ent Date. The Commencement Date far 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) 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 instrument& constituting or evidencing satisfaction of the Commencement Date conditions shall be furnished to each party prior to or on the Commencement Date. 25 Execution Copy (D) h!eYJvY-4QQzp9Mtrd Cities. Any city within Orange County which becomes incorporated atler 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). 4� (E) Failure of Condition. If by �f l,�,�'` 120 DAYS AFTER BOARD APPROVAL), or such later date as the County may agree, the condition to t& Commencement Date specified in this Section is not satisfied, either party hereto may, by notice in writing to the other party, terminate this Agreement. Neitbar 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 PER.ATION 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 UNCONTROLLABLE CIRCUMSTANCES GF,NERALLY. (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. Mitt ani n. 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 thowt followed within 15 days by a written description of (1) the Uncontrollable Circumstance and the cause thoreof (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 Circwmstancc, (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) Impac . n C09W ate. 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 26 EXeMdDn Copy 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 Lass -and -Expense arising from the City's activity as an "arranger" (for purposes of and as such terra 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 speck 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 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, absolutes 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 7.5 I URSE. (A) . To fbe 01y. 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 recoume of the County for all such amounts shall be to the fiords 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 amiount 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 inmrred hereunder, including any Loss -arid -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 terins 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 -EX -STING RIG -ANI} LIAB&I IFS. 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 di%mW of waste in the Disposal System or any other related mattes. 27 FaceMdon Copy 0 SECTION 7.7 NOYESTED 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 IRANSPORTATION 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 CONSEQUNTIAL 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 AIy NDMFNTS. 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 LMQATION. 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, 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 ASSIGNMENT OF AGREE_ b E Tr. (A) AssiNeither 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 ley (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 INTERESIT ON OVEQU OBLIGATLONS. 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 party. 28 E =don Copy • 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 Date Date APPROVED AS TO FORM: COUNTY COUNSEL CO PF ORANGE By r Director, OC VU -c & Recyc By By 29 Exwx ion Copy City Representative City of Newport Beach [NAME] City Representative City of Newport Beach APPROVED AS TO FORM: ." C W.." City Attorney ATTEST: 4�L- - - b�� City Clerk City of Newport: Beach `J APPENDIX 1 PERCENTAGE OF COUNTY ACCEPTABLE WASTE ATTRIBUTABLE TO PARTICIPATING CITIES FOR PURPOSE OF SECTION 6.2(b) Jurisdiction Percentage of County Acte table Waste Anaheim 13.4% Santa Ana 10,6% Irvine 7.5°% Huntington Beach 6.0% omse 5.8% Garden Grove 5.1% Fullerton 4.5% Uninco orated Orange Countyil} 4.3% Costa Mesa 3,6% N rt Beach 3.0a1a Lake Forest 2.6% Buena Park 2.5°% .Mission Viejo 2.3% wnster 23% Yorba Linda 2.3% Brea 2.1% Tustin 2.0% gy—r= 1'.9% La Habra 1.8% San Clemente 1.7% Fountain VaI19L 1.6°% Laguna Ni el 1.6% Placentia 1.6% Saxe Juan Caistrano 1.6% La a Beach 1.4% Dana Point 1.2% Stanton 1.1% Rancho Santa Mar arita 1.0% Lasum Hills 0.9% Seal Beach 0.8% Aliso Viejo 0.7% Los Alamitos 0.5% La Palma 0.3% 1:affiw Woods 0.2% Villa Park 0 0 Tota! 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 Commenetme nt Date upon (i) execution of a Waste Disposal Agreement by that Participating City and (ii) execution of a Hauler Acknowledgement(s) by the Franchise Haulers) operating wkbin such Participating City exomtsan Copy C Exomliton COPY APPENDIX 2 CUMULATIVE TONNAGE TARGETS • APPENDIX 2 • Cumulative County Acceptable Waste Tonnage Target to be Used far Purposes of Section 4.2 (B) Fiscal Year County Acceptable Waste Tonnage FY 2008-09 3,170,387 FY 2009-10 3,092,806 FY 2010-11 3,185,590 FY 2011-12 3,344,870 FY 2012-13 3,445,216 FY 2013-14 3,514,120 FY 2014-I5 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,E 15 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 • APPENDEK 3 CUMULATIVE CAP17FAL COSTS to be Used for Purposes of Section 4.2(A)vi r� Fiscal Year Lending June 30 Annual Capital Costs Cumulative Capital Costs 2009 $37,939,538 $37,939,538 2010 $59 43,405 $977 28 943 2011 $19,433,978 $107,716.921 2012 113,678,113 $121,395,034 2013 $17,525,940 $139,920,q74 2014 $11,259,518 $150179 92 2015 $37,682.758 $187,962,350 2016 $5,068,800 $19 931,150 2017 $10,662265 $203 593 __j415 2018 $29,397,698 $232X1,113 2019 $8,263,795 $241,254,908 2020 $45,103,805 $286,35S,713 Execution Copy APPENDIX 4 FORM OF HAULER ACKNOWLEDGMENT Execution Copy • • 0 FRANCHISE HAULER ACKNOWLEDGMENT THIS FRANCHISE HAULER ACKNOWLEDGNQNT, 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 ofsuch waste to the Disposal System; and WHEREAS, the provisions of the Waste Disposal Agreement which guarantee capacity for the Iong 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 confonmty 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 WIMRF.AS, 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, is 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: Capitalized terms used and not otherwise defined herein are used as defined M— the Disposal Agreement. Exewtion Copy 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 perforin 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, S. 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. 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 S above with respect to Residue from any such recycling operations. B. 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 (9) 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, commercK 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 Cam Is fN WITNESS WHEREOF, the parties have caused this Acknowledgment to be executed by their duly authorized officers or representatives as of day of , 2009. ExecWioa Copy CITY OF Signature: Printed Name: Title: (Franchise Hauler) Signature: Printed Name: Title: May 4, 2009 0 CITY OF NEWART BEACH Mr. Jeff Southern Grange County Waste & Recycling 300 N. Flower Street, Suite 400 Santa Ana, CA 92703 Dear Mr. Southern: OFFICE OF THE CITY CLERK Leilani 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 926+63 If you have any questions or need additional information, please contact General Services Director Mark Harmon. Sincerely, 4 L- _�2 vj��� Leilani I. Brown, MMC City Clerk Enclosures cc: Mark Harmon, General Services Director 3300 Newport Boulevard - Post Oilice Box 1768 - Newport Beach, California 92658-8915 Telephone: (949) 644-3005 - Fax: (949) 644-3039 - www.city.newport-beach.ca.us a 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 CiWs 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 r f City Clerk of the City of Nef DATE: 5/4 Beach Mich tref B. Giancota, Drrcaor ORA N G e 40 V N T T 300 a %wer Street, Suite 4co dCWaste&Recyc1ffiCoEwww-2clandfills.co 1N/ED Santa Ana, CA 92703 Our Community. oar Commitment. (DITelephone' (714)634-4000 JUL Q Fax. (714) 634-4163 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, OFCQE OF H UTY (CIEW OW OF NES!' ffXH 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 6.2 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 aftached 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 • 0 R(CO It AN G 6 CC U N T Y CWecycliaste&-n Our Community. Our Commltmant. Alkhaef & Gkumofa, Dh+ecbor 300 W. Flower Street. Suite 400 Santa Ana, CA 42703 w-w-w.QCI•dnifftlls.cQm Telephone: (714) 8344000 Fax: (714) 8344183 CERTIFICATE OF THE COUNTY OF ORANGE, CALIFORNIA CERTIFYING SATISFACTION OF CONDITION TO COMMENCEMENT HATE RELATING TO WASTE DISPOSAL AGREEMENT July 23, 2009 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. In 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, a;* 6% Michael B. Giancola, Director, OC Waste & Recycling 0 PARTICIPATING CITIES, SANITATION DISTRICTS, AND FACILITY OPERATORS Cities: Aliso Viejo Anaheim Brea Buena Park Costa Mesa Cypress Dana Point Fountain Valley Fullerton Garden Grove (by way of Garden Grove Sanitation) Huntington Beach Irvine La Habra La Palma Laguna Beach Laguna Hills Laguna Niguel Laguna Woods Lake Forest Los Alamitos Mission Viejo Newport Beach Orange Placentia Rancho Santa Margarita San Clemente San Juan Capistrano Santa Ana Seal Beach Stanton Tustin Villa Park Westminster (by way of Midway Sanitation) Yorba Linda Sanitation Districts: Costa Mesa Sanitation Garden Grove Sanitation Midway Sanitation South Orange County Wastewater Authority (SOCWA) Facility Operators: CR&R Incorporated Rainbow Disposal Tierra Verde Industries Madison Materials (dba Ware Disposal) USA Waste/Waste Management of Orange County The agreement is attached, along with supplemental information intended to aid in preparation of an item for your city council. -71(Should your city choose to execute the agreement, please return three wet signature copies to the 1000 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. s CC Waste & Recycling 300 N. Flower Street, Suite 400 Santa Ana, CA 92703 Attention: Jeff Southern OC Waste & Recycling stands ready to finther assist you by providing additional information or j by making a presentation to your city council and/or staff. Please contact Rochelle Carpenter at 1 (714) 834-4060 or .teff Southern at (714) 834-2652. • I Sincerely, Michael B. Giancola, Director Attachments: Waste Disposal Agreement Summary of Major Provisions Board Resolution Staff Report lnformation • • CITY OF NEWPORT BEACH MINUTE EXCERPT CITY COUNCIL MEETING OF APRIL 28, 2009 ROLLCALL 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 Brom 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 IRM City Clerk of the City of New ort Beach DATE: _ 5 q ��ORli�r' WASTE DISPOSAL AGREEMENT Between THE COUNTY OF ORANGE, CALIFORNIA and the CITY OF NEWPORT BEACH Dated 4 / 28 12009 County Authorization Date.- County ate: County Notice Address: Director OC Waste & Recycling 300 N. Flower Street, Suite 400 Santa Ana, CA 92703 Ex,xution Copy • City Authorization Date: -April-28, 2009 City Notice Address: General Services Director 3300 Newport Boulevard Newport Beach, CA 92663 • TABLE OF CONTENTS ARTICLE I DEFINITIONS AND INTERPRETATION • m Section1.1 DEFINITIONS..................................................................................................................................2 Section1.2 INTERPRETATION.........................................................................................................................7 ARTICLE II REPRESENTATIONS AND WARRANTIES 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 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 Section4.2 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 RESTRIC'T'ED 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 Section53 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 ............... Section 6.2 COMMENCEMENT DATE ........................ Execution Copy ARTICLE VTI GENERAL PROVISIONS Section 7.1 OPERATION AND MAINTENANCE OF THE DISPOSAL SYSTEM.......................................26 Section 7.2 UNCONTROLLABLE CIRCUMSTANCES GENERALLY........................................................26 Section 7.3 INDEONIFICATION.....................................................................................................................27 Section 7.4 RELATIONSHIP OF THE PARTIES............................................................................................27 Section7.5 LIMITED RECOURSE..................................................................................................................27 Section 7.6 PRE-EXISTING RIGHTS AND LIABILITIES.............................................................................27 Section7.7 NO VESTED RIGHTS...................................................................................................................28 Section 7.8 LIABILITY FOR COLLECTION, TRANSPORTATION AND PROCESSING ..........................28 Section 7.9 NO CONSEQUENTIAL OR PUNITIVE DAMAGES..................................................................28 Section7.14 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 Section7.15 BINDING EFFECT........................................................................................................................28 Section7.16 NOTICES........................................................................................................................................28 APPENDIX 1 ESTIMATED ANNUAL TONNAGE APPENDIX 2 CUMULATIVE TONNAGE TARGETS APPENDIX 3 CUMULATIVE CAPITAL COSTS APPENDIX 4 FORINT OF HAULER ACKNOWLEDGEMENT Execution Copy 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 Agroement, 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 1484 (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. i 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 terns 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 save 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 • ARTICLE I DEFINITIONS AND INTERPRETATION SECTION l .1 DEEMIGNS. As used in this Agreement, the following berms 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-fmmilyj, 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 i 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 i 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, i 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 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" mesas any of the following events or conditions which has a material and adverse affect 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 Execution Copy 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 j 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, 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 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(B) hereof. "Contract Date" means the first tate 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 Flan" means the integrated waste management plan of the County approved by the Board p=uant to the Act as in effect from time to tune. Execution Coy "County Acceptable Waste" means Acceptable Waste generated in the County. "County OC Waste & Recycling Enterprise Fund" means s the waste management enterprise find 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 fiord 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 grader 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 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: (i) 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 at 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 Execution Copy "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 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 fes and costs. "Net Import Revenues!" has the meaning ascribed thereto in Section 3.6(E). `orlon -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 21%, 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 Bankruptcy Court Central District of California in that Conformed Order Confirming Modified Second Amended Plan of Adjustment, filed May 17, 1996. "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. NNaUfled 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) Toxicfiotable/corrosivelreac ive; and (3) Carcinogenic(mutageniclteratogenic, which are discarded from households as opposed to businesses. Qualified Household Hazardous Waste shall not include Unacceptable Waste. Execution Copy "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.l(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 101/6 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 et seg., 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 Stations" 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 WasW' 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 Execution Copy 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. "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 RNEE - RETATION. In this Agreement, unless the context otherwise requires: (A) Refereances 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 Pluraiity. 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) Pte. Words importing persons include ferns, 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 Tltird� 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) Count . This Agreement may be executed in any number of original counterparts. All such counterparts shall constitute but one and the same Agreement. Ekwafiom Copy (G) Applicable Law. This Agreement shall be governed by and construed in accordance with the Applicable Laws of the State of California. (I) Sg LenW ity. If any clause, provision, subsection, Section or Article of this Agreement shall be ruled invalid by any court of jurisdictiow, 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 apcomplish 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) InWoration: Preservation of Certain ARM 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 Change 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 out -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) Existence. The City is a general law or charter city validly existing under the Constitution and laws of the State. Exwutim Copy (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) Existgnce. 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 Accgghle Waste, The parties hereto acknowledge the regmnsibility 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 Totmage 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. Execution Copy (D) Power to Qbligate Waste Disposal _and Comply with this Aargmat. 4n 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) 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 mare 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, every 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 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 patties 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 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) Lcgd Challenges to Franchise SgILem. 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 10 Execution Copy 0 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 franchise and permit terns. (H) Waste information System. The City shall cooperate with the Det 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 D lmanent 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 Wastes was collected, tonnage by type of load (residential, commercial, roll -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, 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 reffise to grant any approval while exercising its police powers. (J) No Ri t of Waste bh5fttion. 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, 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. I SECTION 3.2 PROVISION OF DISPOSAL SERVICES BY THE COUNTY. {A} Service Covenant. Commencing on the Commencement Date, the County shallprovide 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 11 ' Execution Copy of the disposal capacity of the Disposal System, and (3) in accordance with subsection 33(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) PMiollar-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 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 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 Agam. 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 compliances 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) Ri& 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. 12 Exam im Copy (B) Identification -of LinaccMtable 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 Hiles and regulations of the Depart n d, 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) Sgurce-Separated Household Hazardous Wage. The County shall maintain, as part of the Disposal Systefn, 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 preserver protect and defend its right to exercise and comply with the Waste Disposal Covenant (with respect to non -recycled Acceptable Waste generated w 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). 13 Execution Copy 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) Scalej and -Weighing. The Department shaU 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 retards 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 [ U T93, 20091. On or before [120 DAYS AFTER BOARD APPROVAL], the County shall have the right to hiter 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 temps 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 f O d `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 deteradnes 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) Kqmdo of Irrmorted 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 propose revenues are no longer expended to pay debt service on the Orange County Public 14 Execution copy Financing Authority Lease Revenue Refunding Bonds Series 2005, but in no event later than the last day of the fiscal year commencing duly 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 LIN 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 Swvt"ces. This Agreement does not miuire 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 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) Separate City-Counly 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 TV CONTRACT RATE SECTION 4.1 0AZG1NG 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 42 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) EstabliRent of Contract Rate. The Contract Rate payable by each Franchise Hauler shall be, (x) $22.00 per ton from the Commencement Date through lune 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 15 Execution Copy least equal to the Cumulative Tonnage Targets identified in Appendix 2, and subject to adjustment necessary to reflect the circumstance's set forth in this Section 42: (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; j (ii) oasts incurred by the County (irt 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 i (iii) tonnage shortfalls to the extent permitted by Sections 4.2(B); i (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 casts incurred by the County (in excess of available insurance proceeds) due to the occurrence of one or more Changes in Law; or i (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: (i) reduce the costs of outing the Disposal System to the extent practicable; (ii) utilize Restricted Reserves described in clause (iii) of Section 4.5 to pay costs of the Disposal System; (iii) utilize Unrestricted Reserves to pay costs of the DisposalSystem; 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 16 ExccWoa CoM 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(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) Special 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. 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 casts 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) Eer�alation 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'J as memred 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: C October Year 2 CPI J _ 1 = % 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 Sedion 4.1(F), which w0l be considered "year 1" in calculating the change in the Contract Rate. 17 Execution Copy i ..... ....... 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(I). (G) Adjustment 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 CPl 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 1 CPI for July 2008) Year of Calculation Retia July 1 2008 1.0000 July 1 2009 l .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(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 compliance with the provisions of Section 4.2(I). m 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 thaw 4.2(A)(iv)) or Section 4.2(B), it shall utilize the procedures described in this Section 4.2(I). 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 4usbmt to the Contract Rate (hereinafter the "County Report"). In the event the City disputes the adjusfinent, 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 18 ExemWoa Copy 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 rented 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(.l) are utilized, but subject to potential reimbursement pursuant to clause (11) of Section 4.2(J). (J) Procedure for Ex»edited Judicial Review of Contested Rate &djMaLment. In the event that, within 30 days after the effective date of any Contract Rate adjustr�nr eetit made pursuant to Section 4.2(1), 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 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 sighed 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(7) 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 Cade of Civil Procedure Section 1085, et seg., 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 ear 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 ChaUenging 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 oC 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 19 Execution Copy 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) 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 (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 panties 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 435. 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 ibis paragraph (12). (13) In the event that the court bath 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 20 Execution Copy 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 atter the court renders a decision, and to any appeal or review of the decision of the court. SECTION 4.3 RESPONSIDUM 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) Payment by Franc ea 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 Haider'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 RE51UMD 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 21 Execution Copy • • 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 fvnded 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); NO 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, ruing 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: 22 Execution copy County Acceptable Waste, in tons; 2. Imported Acceptable Waste, in tons; 3. 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 $REACH. 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 53 hereof or as otherwise provided in this Agreement. SECTION 5.2 CITY MWE CE 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. 1f 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 53 TERMNATION. (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 23 Exeauion Copy • 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 Cmly. 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: (l) 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 failw-e 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 S.S FORUM FOR DI SOLUTION. 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 patties arising therefrom shall be solely and exclusively initiated and maintained in courts of the State of California having appropriate jurisdiction. ARTICLE VI 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) Qtion 12 OM 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 June 30, 2018, negotiate an applicable change in the Contract Rate for such renewal term. In determining any revisions to the 24 Execution Copy 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 Rights. The rights and obligations of the parties hereto pursuant to Sections 3.1(E)(2� 5.1, 5.3, 5.5, 72, 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 and of the Term of this Agreement, all other obligations of the parties shall terminate. a � u.;,t . o FI r . (A) Obligations the Parti Prior to the Commencement Date. The parties acknowledge that the Disposal Agreements tmay 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 occumence 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 fill force and effect. (B) motion to the Commencement Date. The Commencement Date for the Agreement shall be the date on which the perowtage 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 Appetdix 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. 25 Execution Ow (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. iny"I DAYS AFTER BOARD APPROVAL], or such later date as the County may agree, the condition to Ofe 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 Commencetnent 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 UNCONTROLLABLE CIRCUMSTANCES GENERALLY. (A) Perfarmance 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. Mifiggion. 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 Circumsaace 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. Whiffle 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) )fact on Con= 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 26 Execution Copy • • 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 INDEMFICATION. 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 7A 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 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 7.5 LIMIUD RE_ GME. (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 dere hereunder. (B) To the Coemly. No recourse shall be had to the general fiords 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 7.6 PRE-EXISTING RIGHTS AND LIABM I Ma. 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. 27 � Execution Copy i 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, R NjSPORTATION 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 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 ASS CES. 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 ASIQNh NT 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 abflity 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 QN 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 party. 28 Execution Copy • ]Execution Copy APPENDIX 1 ESTIMATED ANNUAL TONNAGE • • IN WnWESS WHEREOF, COUNTY and CITY have caused this Agreenxmt to be executed by their duly authorized officers or representatives as of the day and year first above written. Date Date APPROVED AS TO FORM: COUNTY COUNSEL ORANGE COUNTY, CALIFORNIA I4s-c COUNTY OF ORANGE By BY By Director, OC Waste & Recycling 29 FSoecution capy City Representative City of Newport Beach [NAME] City Rpl resentative City of Newport Beach APPROVED AS TO FORM City Atto ley ATTEST: Aoov,�� P City Clerk City of Newport Beach • 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 13.4% Santa Ana 10.6°% Irvine 7.5°% Huntington Beach 6.0`/0 e 5.8% Garden Grave 5.1°% Fullerton 4.5% Unincorporated Orange Cour 0) 43% Costa Mesa 3.6°% Newport Beach 3.0% Lake Forest 2.6% Buena Park 2.5%0 Mission Vi 'o 23% Westminster 2.3% Yorba Linda 2.3% Brea 2.1% Tustin 2.0% CZKess 1.9% La Habra 1.9% San Clemente 1.7% Fountain Valley 1.6% 1:2M Niguel 1.6°% Placentia 1.6% San Juan Capistrano 1.60% Laguna Beach 1.4°% Dana Point 11% Stanton 1.1°% Rancho Santa Margarita 1.001° Lazm Hills 0.9°% Seal Beach 0.8°% Aliso Viejo 0.7% Los Alamitos 0.5% La Palma 0.3% LagunaWoods 0.2`/0 Villa Park 9 .2% Total 1000/0 (1) Unincorporated County is assunwd to be a Participating City for the purposes of demining the Comet Date in accordance with Section 6.2(b) of this Agreement. (2) A Participating City will only be included for purposing of debamining the Commenoe;ment Date upon (i) execution of a Waste Disposal Agreement by that Participating City and (ii) execution of a Hauler Acknowledgemenas) by the Franchise Haulers) operating within such Participating City Exemioa Copy APPENDIX 2 Cumulative County Acceptable Waste Tonnage Target to be Used for Purposes of Section 4.2 (B) Fiscal Year County Acceptable Waste Cumulative County Tonnage AeeeptaMe 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 201213 3,445,216 16,238,869 FY 2013-14 3,514,120 19,752,989 FY 201415 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 C7 APPENDIX 3 CUMULATIVE CAPITAL COSTS to be Used for Purposes of Section 4.2(A)vi • Fiscal Year (ending Jute 30 Annual Capital Costs Cumulative Capital Costs 2009 $37,939,538 $37,939,538 2010 $59,343,405 $97,282,943 2011 $10,433,978 $107,716,921 2012 $13z678,113 $121,395,014 2013 $17.525,040 $138,920,074 2014 $11,259,518 $150,179,592 2015 $37,682.758 $187.862,350 2016 $5 068 800 $192,931,150 2017 $10,662,265 $203,593,415 2018 $29,397,698 $232,991,113 2019 $8,263 795 $241,254,908 2020 $45103,805 $286358.713 Execution Copy I I i C' • 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 tate Franchise Hauler have heretofore entered into an agreement entitled _, dated as of (the "Franchise'l; 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 e 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 . 2409 (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 animowledges 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 Hauler's right to receive the Contract Rate for such disposal as provided in the Disposal Agreement. NOW, THEREFORE, in consideration of the pmauses 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 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. 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 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 tannage 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 andlor its auditors. Execution Copy • s 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 • I CITY OF NEWPORT BEACH APP ' 8 CITY COUNCIL STAFF REPORT C; -41q (� 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@ ty.newport- beach.ca.us Mark Harmon, General Services Director 949-6443061 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 tern of July 1, 2010 to June 30, 2020? 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-term, reliable and cost competitive disposal source for the City's municipal solid waste. DISCUSSION: Background: In 1997, the County and cities of Orange County entered into disposal agreements for a fixed rate per ton for the disposal of solid waste in the County s 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 Orange County Waste Disposal Agreement Apra 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, Grange 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, importation 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 Arg eement 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 Orange Count�yaste 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. Nlanaaina Controllable Waste - Neweort 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 haulees gross receipts. However, given the competitiveness of the private solid waste industry, any increase will probably be minimal. Resldendlal 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. Orange Coun ng tYas to Disposal sposat Agrraement Apri128, 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 $73.20 per -ton 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 6120t the .t?ran" County Landrll increases di osal feeA the Hauler MY Apply to —ft Q& for an increase in -the Disposal Fee charcred to the Oity ...., Hauler and Gity a me that the -decision to increase the Disposal Fee charged &W the Q& shall be within the s le. discredon of the �PA and the Of shall not be obligated to inrxeose the amount charged Athe Clty_" 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, 2040. Omer Bludau Mark Hanno City Manager General Services Director Attachments: i. Resolution of the Board of Supervisors ll. Waste Disposal Agreement RESOLUTION OF THE WARD OF "ERVISORS OF (?RANGE COV47Y, CALIFORI-M VIEAS, OC Waste & Recydmg r=mVs the County's. ttCe active munkipal solid wasteflandfilL% 21 former disposal sites.and f m hau owid.bapalous waste &Ixwl centers; and. WHEUAS, among •other things, =the purpose of the Cgfornia Integrated Waste il?htnagccnent Act oI' 19$4 {tip "Act" is tt� rete;-tcgde,. and muse solid wastegemated in the State to. the mairm on extent feasible in an dent and cost a ve 30 and WH.E,RFM, the Act provides that local 'government-agmdes may detwnine the aspects of solid wade haudbng which are of local wum. n, kichding. but m limited to, fixowcy of :cogoctiou, me= of coliecdon, =spuidon, level of services, charga -and feet, patnre, location, arta dent of.providing solid waste handling saviom and, WMRAAS: ou App .$,1997, this Board, alb S 1 . upe�iscus.appraved the forms of=waste disposal ayi ds to be entered into wit itige Cmnly cites, sanitary dishicts and vmste- hoWe s and ctabadW certain fees, aad WHtFAS, such wasc dispas W=dcnb Were -ef ediVt on July 1., 1997, and e scheduled to eatpho on June 10, 2010; and MEAS, eurmtly 31 cities,.fM sanitary di nrAS-(wbirh ulnae three cities) and 13 waste haulers are parties to waste -dsal agrwith ft Cougy; and WHEREAS; pmscuted to ft Board and - on file with the Clak 4f ft Board are the following rm'sed fog of wase d"os.W • WASrM DISPOSAL A . 'between the County of Orange and inclividttal Orange County cides--and'saiftiry districts (the "Cityramitary. Dbuici Rmolutim No. 09436, It= Ne..a f of 5 Rem of uw amd of Supervisors iotthe Cotmty of ordngs approving the Forms of.Wepte o spsjaE Agm rots and Esta Mwq the Con rwt Rate and cote. Fees 0 Wye D**W Agreement"; • WASTE DISPOSAL AGREEMENT between the Cour of Onngc and certm ftVe Fmility Op whn {du "Eiigaiblz Fa4ity Overatom") Of'solid wme is the- Cowy of Orange (*e "l<a iW Opttatot Woe'I?ispwd Amt). RIE MAS,'the'p *& intma, health, and safely are benfited by the approval of the ftm of Waste Disposal Agreaneg; mid tiie-adopt oft o fees p vvideyd for.herein; and VIOWAS, then Bo of SVeMims is authorized to est blisb:fm far the collection, handling, and disposal of solid vm* and applicable law mquim this Bond offtwdsm toAeld at least ons dpw aid publec meetir , at wlrich viral ar wxiiteu P��� can -6o mW% as pact of a regalarly . ;�h�duiecluir�du�g; and EAS, notice as required by law h o:been published in:a.newspapdr of guntl circumion; a� . WHEV, this -$catd.offtwii sm Issondv a pu6i�ic.l ring;. NOW, IUMEFOK BE IT RMLVED tat this -Bog d.of Supervisors does,.henrby fund a4d 41 maine: d.. Tbisaowd of Su Ssm (this aBo !! het&y undo mud.& ermines *at WMpiiam with the. CaUfonds Eavi�otal'�Qzaty Act (CFQA) for the Waste l kvwal Avvemem is satisfied. by the fbitawisig previously mt W envir mental doca�eab: • F fud EIR $23, cOfifted by yorir Board on Marchi I4,19n for the ,ea on of the Oma Alpha: LmdhU. FizW.EiR 588, cadfied:by your Board. (a Apd)19,1007, fQr tip mon of .. thy-Ult�da Al :LII. . + . F'mal EiR 604, certified by your Burd oa August 15, 20©6, for the egmui ion .of the Frank R. Bowerman Landfill. + Fiml EIR 575, certified by your Board ouNoveaibcr 6, 2001 for the 2001 -GmmW.Development Plan for tine Flims DShecha Landfill. 2. This Btmd hereby fwds and determines that the approval of the for= of Wask Disposd Agmmmts'and cmution by ft Coualy will serve the pdbhe, health, safety avid welfare by providing a more stables predictable and reliable apply of muml eipal-solid waste and the rasuitiag service. payment revemw to the -CouaW waste edupdse 'systenk &iriby enabling t~outrsy to plan, manage, operate, and fie improvem is to the systm on a move prudent -and sound long Iftmv Nsi mmlike. basis msistezrt with-its.obli tions to the SWe and.the hoklers of obligarions secured by its waste disposal system. .3. This Board hathy.ids and ddwnfims that the Waste Disposal ftmnwill' feather prornate &e statuterry goals of sgU4 Mwtp mducioo, recycIW& and rem to ibe ma)d*w tr extent f;asi'ble in an.eficic .lid aoa effec rammer. 4. The form of -City Waste Disposal Agmment is-hceteby •approved.. The DhWtar of- OC f43C Wee a Bt Recycling a r3esignmfthe "Dutctoir"j b�es+eb�r audiorizcd and directed f(w, in'the`nam -am d on bdWfoof tbo Coumy to execxtt the, Ste Diinmal Ago mma with. Omw t~ouuty:dties approving stmh Agrees provided, that such city approval and e+euta►nw. hit oar or f s before stay U- 2009. 5. 71m form of Sano tary District Waste Dssposal.Agtr meat is hereby approved_ The DirvaW is hereby.axithodzed and &mcte+d:for, inthe name•and on beh&of 'the Cmtmty taexeeuftthe Sanitary Distn'ot W4m Masai Agrednrout v�fh . Page 3 o€5 County SmDbWet 40mving such Agement, gy ��- •tb# s4ch Sa Anzy Diddrt VMval an+d vmoAloa O mreof shad orm om or before J* 24 2009. 6t "the fv m of Pacilityr Opecax DLVosal A$ftmcut is %try appmv4 The Dhectm is hweby =&mi=d W dmmaed. ft in t. acme and cut behalf' of *:00to OWWWthe FaOft. Dpmvkw Agkm mt with EH&Ic FOUty yrs VprdWng such Amt, ceded howraL that each Eftible Fmcft Op=Ws AppmvW and exectian d=mf oom on or befom. July 22, 2005.. �.< $abject to pwasmph 8 and t terms of the Woo Dish jAgmmenM #lie Vm to Disposal Agrees oonkVd rWc x$29.95 per ton and the posted diqw4: rag of $34-95 per tcm, miusive ofdwM 9.00•perr tori AB 939 age estabfisbed Usuebt to this BoarTs.ResoludonNo. 06.470, are-hemby.apm"d. • x•ihe.ca�� a�#hc. pow tete wii1. increase.a�tra�cilg caa�Iy :1*1 by fe Cmdmw ice hda I) -- AU Urban Cmmmast Alt Cities -- •based an fin fimulacantaeired is *e'Waxte Disposal A pwwAt& All + fbo:iagdOl ap�trove,� Gflus Board min uni;eod. •The dfmdvmess of the WaW Dbpos$l apgum&in 4, S :ate 6 and the fees ove ha 7:are oantingent uta alI cxxi#ns ttr abbe Commmee t €3iate.(as defined in fba Gify •Wow DTVI Agreement) being and on or befor4 Tui 2Z NO. %a & event of the failwe•Qf'Anycondffion to t Co a :Da* tom. Direr of 0Vieeaae3ot. . - m i�:�oa�d for�on. fn �o: crti►e�"sthe'�aste•i)is�osa�:,A�tstn fWsVpvvtd b t bc:e �cti re prier to My 12010, 4*4 9, The Dhcd& (or desipee):of QC Waste R=8•is hereby authorized add direr, for. and in ihe name and on behalf of the County, to do.any and allAings and -Wm any and all. actions and execute any and all cex4i c, ata,.agre nems and .documents which he may deem neCvssary or adVble in order to conmm mate the lawful exmmim delivcry and-cnf ncanent oMe•�. im _Dhssal.Agnr=aft and the fees approved in accvidaaoe wiffiIhis Resolution. 6v-$ of S foregoiog was pum.4 and aidapW by the folWw ng gate oftheChange County Board of SupeMso'rs„ on M h.24,-2M. to wait; sq"'Om BILL C1MPAE I ,, CHR[SNORBY,, I.ANB' NGUYEN iYOEtis: -Se�&vbpa(s} Jt H AL' W. MOORLAM PAMCIA BATS BXCmDr Supavi OK4 Supwn CHAMMAN sTAT9 OFGWL O MA } MuNrr of oR WE ) 4PARLENE. X B.LOOK Cerkof the:D oard of Orange County-, CMuroiia, hereby mtefy'th9A copy afAs dm menthso btem cteOftred to the CbWrdna.of ibe Bo*rd:ad t8,s't• the above and fbregoing•Res6lutlon.was d* aad regubdy adopted by the Orange Cuuaty •B.o" Ofspoomars. IN WXIWEW WHEBWLri I have heretatset my haad and smL. DAPJJM 3.10�O I gafroi�e'Bo�d � �� �tc,aj s�re•oi'C.ati6os�iia -ROWI cion Nb: 09.036 .n3narmos. A m -N . .19 I c e[y that Bne x'11IL msQ �oo�raa aq�p atitae -.bytbe•Bcard a�•,:orta�e�i�+; 5i�te pts DARLM I BLOWA Oc& 4tw Board afftper�. WASTE DISPOSAL AGREEMENT Betwom THE COUNTY OF ORANGE, CALIFORNIA and the Dated _ .2009 County Authorization Date: Maw 24.2009 County Notice Address: Diredor OC Waste & Recycling 300 N. Flower Street, Suits 400 Santa Ana, CA 92703 E=Cufi n Copy City Authorization Date: City Notice Address: • TABLE OF CONTENTS ARTICLE I DEFINITIONS AND INTERPRETATION 0 bm Section1.1 DEFINITIONS ....N......»u.wu.wwwN...NNN..N..............o..0»...«u»w»N».uw...wua.M. V.N.............«N.... ..2 Section 12 u4 ERPRECATION................................ N ... .,............. .......... w ..... ............... 7 .•N.N•N. N.NO..N..«. «.«N•• ARTICLE 11 REPRESENTATIONS AND WARRANTIES Suction 2.1 REPRESENTATIONS AND WARRANTIES OF THE CITY ......... «......... » .................................8 Section 2.2 REPRESENTATIONS AND WARRANTIES OF THE COUNTY ..»... w ........................................9 ARTICLE III DELIVERY AND ACCEPTANCE OF WASTE AND PROVISION OF DISPOSAL SERVICE Section3.1 DELIVERY OF WASTE ...................................,».»........ N..N.,..,........................... w. ............ w....9 Section 32 PROVISION OF DISPOSAL SERVICES BY THE COUNTY ........ ....«... «......... ..... «....... N........ I 1 Section 3.3 COUNTY RIGHT TO REFUSE WASTE.».....».».».»..w...... N ....................................................12 Section 3.4 UNINCORPORATED AREA ACCEPTABLE WASTE ....................................................... 13 Section 3.5 1bUSCELLANEOUS OPERATIONAL MATTERS...................»...............................w.......»........14 Section 3.6 OTHER USERS OF THE DISPOSAL SYSTEM. ..... «.......... « ..............w....................................14 Section 3.7 COUNTY MOVISIoN OF WASTE DIVBRsm SERVICES ............. w.N..... ...................... ..,..15 ARTICLE IV CONTRACT RATE Section 4.1 CHARGING AND SECURING PAYMENT OF CONTRACT RATE .«...................................... IS Section4.2 CONTRACT RATE......................................NON.»....w..»...............«.0«O.......NN..w»N............. Is Sectloo 4.3 RESPONSIBILITY FOR PAYMENT OF THE CONTRACT RATE.»..w......».N........................21 Section 4.4 BILLING OF THE CONTRACT RATEN..,.,».......»».........«_.w.»...........w..»w ........................«....21 Section 4.5 RESTRICTED RESERVES ................... N..«........».,,....... .......... .,.................................. ...... ..»........ 21 Section 4.6 AUDITED FINANCIAL STATEMENTS . . .»..............w.....................w..............NN.............».22 Section 4.7 ANNUAL UPDATE OF TEN-YEAR FINANCIAL PROJECTION...........»......«..«....,..w...........22 ARTICLE V BREACH, ENFORCEMENT T AND TERMINATION Section5.1 BREACH.......w....... ........................... N.N.N............».... N .......... «....... ...».................................... .... 23 Section 52 CITY CONVENIENCE TERMINATION ....... N....N..»..«...................w.............. 23 Section5.3 TERMINATION ........................ ......».......... N..»» ..... ...»................................. ............ ...... .......N..,.23 Section5.4 ........«................N.............................................. NOWAIVERS ......».......N ...............................24 Section 5.5 FORUM FOR DiSPU'TE RESQLUTION...w.........._..«..wN...w....w...w......................................«..24 ARTICLE VI TERM Section 6.1 TERM............» .....«.«........ ......................... EFFECTIVE DATE AND .. ................................«..24 Section 6.2 COMMENCEMENT DATE ................ w .... »........ w ........... N ...... N..N....................... _....,........ N...N..75 Rkmaian Copy ARTICLE VII GENERAL PROVISIONS Section 7.1 OPERATION AND MAINTENANCE OF THE DISPOSAL SYSTEM .......................................26 Section 7.2 UNCONTROLLABLE CIRCUMSTANCES GENERALLY ........................................................26 Section7.3 INDEMNIFICATION ........... . .............. ............................ I ....... I ............................ . ............... -....27 Section 7.4 RELATIONSHIP OF THE PARTIES ........ ............... ............. .................................................... 27 Section7.5 LIMITED RECOURSE . ..................... . . .............. . .............. I ........ I ............................ ................... 27 Section 7.6 PRE-E)(ISTING 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 .......................... ...... I... .. ............... . . . ........ . . . ....... . .... . ...... . Section 7.11 NOTICE OF LITIGATION ............ . .. ................................... . . . .............. . ........ . . ... . . . .............. 28 Section 7.12 FURTHER ASSURANCES........................................................... . .......... . .... . ...... . .... . ...... —.-..28 Section 7.13 ASSIGNMENT OFAGREEMENT. ............................ . . .. . . .................... . ............... . ............... . 29 Section 7.14 INTEREST ON OVERDUE OBLIGATIONS ................ . ....................... . . ................. . .. . ... . ...... 28 Section7.15 BINDING EFFECT ..................................................... . . . ........................................ . ...... . ............ 2S Section7.16 NOTICES . . .......................................... . ................... . ....... . .............. ......................... . ... . . . ........ 28 F; I j 0 0 z Plyp-.w ESTIMATED ANNUAL TONNAGE APPENDIX 2 CUMULATIVE TONNAGE TARGETS APPENDIX CUMULATIVE CAPITAL COSTS APPENDIX FORM OF HAULER ACKNOWLEDGEMENT Execution Copy WASTE DISPOSAL AGREEMEINT THIS WASTE DISPOSAL AGREElV1ENT 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"). lite 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 divrrtcd from landfill disposal, pursuant to the California Integrated Waste Management Act of 1989 (Division 30 of the California Public Resources Code) (tom "Ace), The City, in the exercise of its police power and its powers under the Act, has entered into a freneltise 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 agreeanent to extend, amend and restate the Original WDA, on the terms and conditions set forth herein. The County and City aelo,owledge that the Original WDA small 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 improvetmeats to the Disposal System on a mora prudent and sound long team, businesslike basis camsLatmit with its obligations to the State and the holders of obligations secured by its bisposal 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 authorisation 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: Ex=udw Copy 0 ARTICLE l DEFINMONS AND INTERPRETATION • SECTION 1.1 DEE MTIONS. 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 Califomia 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 germs 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 jurisdietiom, 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, fkv, 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 infiastruchure" (Object Code 4200) or "Equipment" (Object Cade 4000) in the County of Orange — Chart of Accounts, or any successor accounting or reporting system utilized by the Colney. "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.CJL Section 9601 et seq., as amended or superseded, and the regulations promulgated thereunder, "age 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 obhgationsj, or on the siting, design, permitting, acquisition,-oonstruucbon, equipping, financing, ownership, possemion, operation or maintenance of the Disposal System or other matters to which Applicable Law applies: (1) the Cnactuuzerrt, adoption, promulgati<m, 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 Cammencoment Date, to the extent such order our judgment is not the result of willfid or negligent action, error or Ekwution OVY 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 at renewal on or a#ter the Commenownent Date of any Legal Entitlement to the extant that such denial, delay, stispension, termination, interruption, imposition or failure materially and adversely interferes with the pe o mance of this Agreement, if and to the extent that such denial, delay, suspension, ternaination, intermption, imposition or faihwe is not the result of willful or negligent actAen, 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, suspensim termination, interruption, imposition or failure shall not be construed as such a willful or negligent action, error or omission or lack of reasonable diligenoo. A "(Mange 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, finding or monitoring of dosed sites with respect to facilities comprising the Disposal Sysbem, 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 Accegtabte Waste which was originally discarded by the first Senerator thereof within the geographical limits of the City, and Residue from the foregoing wherever produced, Viiether 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 hereta. "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 Wase 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 Aoceptable 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. Exeadion copy "County Avoeptable Waste. means Acceptable Wane 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) heroa£ "Cumulative Tonnage Target" for any given Contract Year means the amount specified m 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 hanewith. "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 operaticos 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 fiords 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 aro provided directly by City operated municipal collection service. "Governmental Body" means any federal, State, county, city or regional legislative, exeautive, judicial or other governmental board, agency, authority, commission, administration, court or other body. or any officer thereof acting within the scope ofhis 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 seg.), and Titles 22 and 26 of the Calftbrida Code of Regulations and other regulations promulgated duminder. "Hazardous Waste"' paeans (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 sigaificantly 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 264-281; (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, storm 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 Exemlion cow "imported Acceptable Waste" means Acceptable Waste that is generated outside of the geographical boundaries of the County and delivered to the Disposal System. "Independent Haculenr meam those waste oollectionlhauler companies primarily engaged as a principal business in the collection and tt=sportation 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 fimnchise, contract, permit or other authorisation 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 umder 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 Iegal or equitable proceeding having a bearing upon this Agreement. "Loss -anal -Expense" means any and all loss, liability, obligation, damage, delay, penalty, judgment, deposit, cost,.expensey claim, demand, charge, tax, or expense, including all fees and costs. "Net Import Revenues" bas the meaning ascribed thereto in Section 3.6(E). "Non -Recycled City Acceptable Waste" means all City Acceptable Waste other titian Recycled City Acceptable Waste. "Overdue Rate" weans the maximum rate of interest permitted by the laws of the State, if applicable, or the prune rate established from time to time by the Bank of America, NA. or its successors and assigns, plus r1o, 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 cauditions to the Commencement Date thereof. "Plan 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 ofMustment, filers May 17,1946. "Posted Disposal Rate" means the per tan 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 Agrnt: "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. " QuaWied 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 statates and regulations; (2) Toxicrq*table/cono,Avak=ctive; and (3) CarcinageuichwagenicltexawSeak; which are discarded from households as opposed to businesses. Qualified Household Hazardous 'Waste shall not include Unacceptable Waste. r+an inion Cagy • • "`Recycled City Awn table 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 Sion 6.I(13) 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 100% 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 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 seq., as amended, supplemented, superseded and replaced from time to time. "Self -Hauled Waste" weans City Acceptable Waste collected and hauled by Self -Haulers. "Self -Hauler" means any perm not engaged commercially in waste haulage who collects and hauls Acceptable Waste generated fiom 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 gomrated within the geographical jurisdiction of the City at this source or location ofgeneration. "Source -Separated Household Hazardous Waste. Disposal System" means the collection ccnters, fadhities, 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. `Tam" shall mean the Term of this Agreement. "Foe means a "short ton' of 2,000 pounds. 'Transfer Station" means nay materials recovery facility, composting faculty, mtermediate 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" mans 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 dxswf, agrirut ural equipment, trailers, marine Exxution copy vessels and steel cable; bot loads; and any waste which the Disposal System is prohibited from receiving under Applicable Law. "Unoontrallable Circumstance" means any act, event or condition affecting the Disposal System, the County, the City, or any of their Franchise Haulers, contractors w 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. "U 'incorporated Area" means those portions -of the County which are not contained within the jurisdictional boundaries of incorporated cities. "Unincorporated Area Acceptable Waste" means Acceptable `iVaste, 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 INTERPRETATION: in this Agreement, unless the context otherwise requires: (A) Refer mces Hereto. The terms "hereby", "hereof', -herein!', "herehmdte and any similar terms refer to this Agreement, and the term "hereafter" means after, and the tens "heretofore" means before, the Contract Date. (B) Oender 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) mss. 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) Headines. 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 rem and shall not constitute a part of this Agreement, nor shall they affect its meaning, construction or effect (E) No Thud�rP y „Bsaeficiarie& 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) marts. This Agreement may be executed in any number of anginal. counterparts. All such counterparts parts shall constitute but one and the same Agreement. Exwd6on copy (G) Applicable Law. This Agreement shall be governed by and construed in accordance with the Applicable Laws of the State of California. (H) SAY. If any clause, provision, subsection, Section or Article of this Agreement shall be ruled invalid by any court ofjurisdiction; 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 apoomplish 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 ofthe Agreement. (1) JnUmmfim Ymsawtion of Certain Agreements. This Agreement contains the entire agreement between the parties with respect to the tranactions' 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) andfill;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 IL 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 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 Clenncntc[, 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 Il REPRESENTATIONS AND WARRANTIES SECTION 2.1 REPRESENTATIONS AND WARRANTIES OF THE CITY. The City represents and warrants that: (A) F ' cue. The City is a general law or carter city validly existing under the Constitution and laws of the State. Execution Copy 0. 0 (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 BEMSENTATIONSOF THE 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 Authorize 'on. 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 DELI'V'ERY AND ACCEPTANCE OF WASTE AND PROVISION OF DISPOSAL SERVICE SECTION 3.1 DELIVERY OF WASTE. (A) Waste DIMMEd Coven Subject to the occurrence of the Commencement Date and throughout the Term of this Agreement, the City shall exercise all legal and contrail power and authority which it may possess from time to time to deliver or case the delivery of all Controllable Waste to the Disposal System in accordance herewith, (B) Rceycl�Aecentable 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 Amt 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* cum 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 DdimpA to Transfer Station. All Residue fivm any ung 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 residue that would have been produced had City Acceptable Waste only been processed at the focality shall constitute Controllable Waste and be subject to the Waste Disposal Covenant. Any City Acceptable Waste or material derived Of 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 Mute 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 Covcwint 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 andlor 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, aclmowledging and agreeing to comply with the obligation of the Participating City to cause the delivery of an Controllable Waste to the Disposal System purarant 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 ea added to utilize the Disposal System for the Contract Rate. Such procedures may include reW mg 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. Exomfian Copy (D) Paver to Obligate Waste Disposal and Camply with this Age. On or before the Commenoament 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 dispos4 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) WaM_ Flow Enforcement. (1) The City, in cooperation with the Department, shall establish, implement, carry out and enforce a waste flow enforcement program which is sm%cient 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 gall 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 circrvnstsnces to assume 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 Wage Disposal Covenant not been breached, which shall be calculated by (x) subtracting the number of toos actually delivered during the month(s) of the breach fi an the number of tons that were delivered during the some 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 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 42), multiplied by (cc) the numbea 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 cxtremely difficult to ascertain and determine the exact amount of such damages. Thereft v, 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 confirms the accuracy of the statements made above and the fast 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) Lural Challengm to FraachiM 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 defendants by a 10 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 Prme t 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 uncaforoeable, 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 covet 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 Tannage Targets, the County shall be entitled to avail itself of the remedies described in Section 4.2(B) hereof (G)FFt [chile Haulers. The City shall compile and provide the Department with the following infmtmation concerning all Franchise Haulers: name, address and phone number; identification number; area of collection and transportation; and franchise and permit terms. (I) -Waste Information Svstegl The City shall cooperate with the Department in collecting infaanration and otherwise monitoring Franchise Haulers in order to assure compliance with tiffs 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 colioeroed, transported. stowed, processed and inwkoeted or disposed of, Franchise Haulers' franchise, permit or license Comm, 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 Handers an obligation of the Franchise Hauler to provide to the County -information relating to the Controllable Waste collected by such Franchise Hauler, including origins froaa 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 facility utilized, and other related information. (1) 011 ,A► 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 is comnpetition 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, transpoatation, transfer, storages treatment or disposal that may materially and adversely affect the Cormty's ability to achieve such timely compliance. Notwithstanding the foregoing, the City shall not be required to deny any permit or lic;enm or refuse to grant any approval while exercising its police powers. M Na Right of Waste Substitution. Nothing in this Agreement shall autharize 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 heretmder. (K) Annexations andchn * g. 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 unanagemeat 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. (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 Wage 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 11 Exemition Copy 0 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 ei%rts 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 Mated thereto or undertaken in connection therewith. The County shall exercise all reasonable efforts to minim the costs incurred m complying with the Service Covenant consistent with its responsibilities hereunder and under this Agreement, Applicable Law and ptudent 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 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 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 aver4ge daily deliveries of Controllable Waste 5rom 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 nth Service Covenaat Not Excused for any Remn. king 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 procludes .compliance with. the Service Covenant by the mans or methods thea being employed by the County, the Canty shall implement alternative or substitute means and methods to eatable it to satisfy tate 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 mens or methods of compliances 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 fallowing the Change in Law. SECTION 3.3 COUNTY RIGHT TD REF LiSE WASTE. (A) Right of Refihsal. 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 herooia (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 12 Execution Copy (B) I<derdification oL Unagga3table 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 fivin such vehicle before it is unloaded. If the Depardnent 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 crake 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 remavd of the entire delivery firam. 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 Departramt, and the provisions of this Agreement prohibiting the delivery of Unacceptable Waste to the Disposal System. (C) I zaardors Wa4k and Elaza_rdo 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 exterht, for the handling, tramVertation, storage or disposal of Hazardous Waste or Hazardous Substances. Nether the County nor the City gall countethance or knowingly permit the delivery of Hazardous Waste or Hazardous Substances to the Disposal System. (D) Di sal of U e Waste ad Hazardous If Unable 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 Departti=t personnel will use reasonable efforts to assure that such material has been characterized, properly secured and its disposition resolved. lire 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 shalt take immediate action in ac cordanoe with Applicable Law. (E) SoutceSeparated Household Hazardous Waste. The County shall maintana, 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 !hart 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 Semites relating to Source Household Hazardous Waste with respect to cities which are not patties 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 SysteWs viability, provided, however, if the County chooses to reduce services, the County shall nonetheless continue to expend fiords for the Source -Separated Household Hazardous Waste Disposal System each year during the germ 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 Produ= Price Index. SECTION 3AUI�iINCORPOi1;ATED AREA ACCEPTABLE WASTE. Conunencing 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 scree► 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 Uniacor�ted Area shall be the same as the Contract Fee charged for the disposal of each class of Cvatrollable 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 challearge 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),. 13 Exwitiw Co" SECTION 3.5 NIISCELLANEOUS OPERATIONAL MATTERS. (A) Qp _ting 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) Wiles 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 nonce to the other party. (D) Review of Records. Each party may review tate 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 patties to this Agmement were natural persons for purposes of the Public Records Act). (A) On or Before [ A ,20091. On or before (120 DAYS AFTER BOARD APPROVAL], the County shall have the right to Anter 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 amts have terns and provisions more favorable than the tu;rnrs and provisions of this Agreement (including but not limited to the Contract Rate and availability of disposal capacity). (B) A.ftm ralhi 92> . 2009. After [124 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 Stadion 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 acceptmce 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 detamines it is in the best interest of the Disposal System to establish a Posted Disposal Rate less than 101A higher thea 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 fiom 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 Agreernents to which each is a party. (C) Receipi_.. 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 Of private nowCounty 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 af%ct 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 expanded to pay debt setvioe on the Orange County Public 14 Exp Copy Financing Authority Lease Revenue Refiiaxfing Bonds Series 2005, but in no event later than the last day of the fiscal year commencing July 1, 2015. (D) pelf 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 Rabe, Such Self - Haulers stall not be entitled to dispose of Acceptable Waste for the Contract Rate. (E) Aaolication and Use of Revenues From Other Users. All revenues received by the County from the disposal of County Able Waste by the Disposal System, and all revenues received by the County from the disposal of Imparted 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 (atter payment of all costs attributable 'to the acceptance of such imported Acceptable Waste at the Disposal System) ("Net Import Revenues") from the disposal of imparted 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 wgmditures, equipment, services and supplies expenditures), state surcharges, and a pro rata share of COW PrOjed 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. SECITON 3.7 COUNTY PROVISION OF WASTE pBT S RVICES. (A) CyaV-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 kuded 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 Citv-C.ouaty Diversion SSM Age, 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 femded through the general revenues of the Disposal System. ARTICLE IV CONTRACF RATE SECTION 4.1 CHARGING AND SE TR Mr. 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 41 QCT RgTF, (A) E-staMishment of Cantcact Rate, The Contract Rate payable by each Franchise Hauler shall be (x) MOO per ton from the Commencement Date through Jame 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 Copy 15 least equal to the Cumulative Tonnage Targets identified in Appendix 2, and subject to adjustment necessary to reflect the chances 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 casts 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 42(H) and escalation pursuant to Section 4.2(F) ; (v) increased costs incurred by the County (in excess of available fi=m once proceeds) due to the oaamrence 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 c= n stances pursuant to which the adjustment is authorized. The County agrees that it will evaluate the feasibility of long term financing for significant c.*tad costs where appropriate. (A) C unty Acceptable Waste Shortfall. In the event that the actual amount of County Acceptable Waste delivered to the Disposal System at the end of any Centrad Year is less than the Cumulative Tonnage Target for such Contract Year for County Acceptable Waste, as specified in Appendix 2, time County shall utilize the following options, in the following order of priority, in order to remedy any adverse effects of such tonnage shortfall: (i) reduce the oasts of operating the Disposal System to the extent practicable; (ii) utilize Restricted Reserves described in clause (iii) of Section 43 to pay costs of the Disposal. System; (iu) utilize Unrestricted Reserves to pay costs of the Disposal System; and (iv) adjust the Contract Rate. In the event that implementation of time steps described above does not result in sufficient revenues to satisfactorily address the shortfall in tonmge, the County shall have the right to terminate the Agreement on 60 days written 16 Fxecation Copy 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 Iower than expected anwW waste deliveries in subsequent years, and that any such rmwves shall constitute "Restricted Reserves". (C) [RESERVED] (D) Interim Ugg 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 rMedies 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 reams may be given as a credit or adjustment to the Contract Rate for future deliveries, rather than a lump sums payment. (E) bmW ChMes. Notwithstanding Section 4.2(A), the County shall have the right to impose special charges for the mocipt of hard to handle materials, such as bulky mwxdalsy construction and demolition debris, tree dumps and sludge. Such special charges shall be calculated to reflect the reasonable increme�htal costs to the Canty of accepting such hard to handle materials. In addition, in the event that the Board Of Supervisors of the County makes a determination to 6nplemerrt a facility (including but not limited to a transfer station, landfill, cxznvemion technology facility, or a materials recovery or pmoessing facility), which facility would be intended to prvvide,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, develagmernt, planning, construction aad/or operation of such facility. 4.2(I). Adjustments Pursuant to this Section 42(E) shall not require compliance with the provisions of Section (F) l 'on. 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 Octobcr 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 Rater. Step 1: C October Year 2 GTI �] _ I m % ince in Contract Rate October Year I 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 I. 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 411 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 4.1n which will be considered "year i" in calculating the change in the Contract Rate. 17 Execution Copy For exaInPley 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. 4.2(I). Adjustments pursuant to this Section 411 shall not require compliance with the provisions of Section (G) Adie:stment Resulting from Lind 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 flees relating to the disposal of Controllable Waste imposed by state, federal or other agencies (ie., 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% (10 Caicula#:on of Cumulative InfiationRate. 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 th6 ratio betwoen the CPI for July for the year of calculation (calculated in accordance with the formula below) and July 2008 exceeds the ratio axresponding 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 1 CPI for July 2008) Year of Calcak on Rado July 12008 1.0000 Luly 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 swdon 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. 4.2(Ij. Adjustments pursuant to this Section 4.2(H) shall not require compliance with the provisions of Section (1) ft22Rdure 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(AXiv)) or Section 4.2(B), it shall Utilize the procedures described in this Section 4.2(I). The County wail 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 adjushnent. The notice shall also specify the earliest date on which the County Boars! of Supervrsors shall consider the proposed adjustment. At least 45 days prior to such meeting of the Board of SupervisoM the County shall provide the City with a report which shall contain the following information: a description of the specific evemt(s) or circumstances which require the adjustment; a description (including cost atimates) 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 desm-bed 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 18 Exe0dion Copy 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 represMted 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 adju.stmmt, 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(1) are utilized, but subject to potential reimbursement pursuant to clause (11) of Section 4.2(J). Q) Prcedure for Exonked Judicial Review of Coalesced 1st&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 Irate adjustment, provide notice to the County of their election to utilize the procedures desmibed in this Section 4.2(4 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 prece ft 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 contact (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 Sling 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 hemnafiter referred to as the "Expedited Rate Determination Stipulation"). The Expedited Rate Determination Stipulation shall be signed by each of the Challenging Cities. (3) Within fifteern (IS) days of the date of service upon the County of the summons wad 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 thein, 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 nuke ex page application to the (range County Superior Court in the Action for the issuance of tine order contained in the Expedited Rate Determination Stipulation At such er 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 shalt file with the court and personally serve upon the County the Challenging Cities' opening brief and the Record in the Expedited Rate Determmatiom. 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 adjustnNnt of the Contract Rabe, 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 Board of Supervisors and the Orange County ExecW= Copy 19 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 docuiawtation evidencing action by the Board of Supervisors and the Orange 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 serve upon the Challenging Cities the County's opposition brief. The opposition brief shall not exceed IS 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 M exceed 10 pages in length„ (S) 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(JX4), or such other date and time ordered by the court. If the court requests the pasties to prepare supplemental briefs in response to any question or issue raised by the court, the parties may do so. (4) 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 Cballenging Cities, and dw burden of proof shall be the same as with respect to a plaintiff in a damages action for breads of contract_ Both parties have participated in the dmfiing 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 detari nines 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 inn Mwd, together with interest cakulated.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 scree 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, aid 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 far 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(37 that are not in conflict with this paragraph (121 (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 caursa 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 20 Execution Copy Superior Court for an expedited hearing or trial date. The Challenging Cities and the County shall be bound by all Of the acquirements and restrictions set forth in Section 4.2(n 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. SECTiQN 4.3 RESPONSIBILITY FOR PAYMENT -OF CONTRACT RATE. (A) Payment by—ty 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, awessh Oats, fees or charges, and will take all stem -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 tembtation of this Agreeanent, 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 -oft; abatement, counterclaim, existence of a dispute or otherwise. (B) EMMIMI by_ Fmchl 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 fmancially respomble for any delay or failure by such Franchise Hauler to pay the Contract Rate or any portion thereof vken 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 rash 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 pigs to suspend, revolve or terminate the Franchise Hauler's framhise, permit or license rights. (C) is rtes. 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 fee* 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 Haulees objection, either patty may pursue appropriate legal remedies. SECTION 4.4 BILLINC, OF THE MaRAf'T RATE. The County shall continue to bill Contract Rates atter the Commencement Date, in the same manner as it has c ustohnariiy 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 MSEMM For purposes of this Agreement, "Rcstricted Rives" means cash and other reserves of the Disposal System which are reancted to specific uses or are otherwise bang reserved by the County to met its obligations hereunder throughout the terra 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 cons itute "Restricted Reserves" hereunder, and may be commingled with Exna Caff 21 Unrestricted Reserves or other fiords of the County attributable to the Disposal System, "Restricted Reserves" shall include, bort not be limited to, the following: by Applicable Law; (i) reserves for closure of components of the Disposal System to the extent required (ii) amounts reserved by the County for finding of post closure maintenance and monitoring with respect to components of the Disposal System; (ii) reserves established to protect the Disposal System against the adverse financial iurpact of potential decreases in waste deliveries pursuant to Section 4.2(B); Disposal System; (iv) amounts reserved to pay the costs of capital improvements with respect to the (v) amounts funded from revenues during the early years of the term of the Amt reserved to enable the County to provide disposal services for the Contract Rate during the later yew 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 sieh amounts in the Environmental Fund will be made available and used by the County if required to pay costs relating to envhvnmeattai 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 (xii) an amount equal to throe months of budgeted expenses for the Disposal System for the current fiscal year, repre, =ting working capital of the Disposal System. SECTION 4.6 AUDITED FINANCIAL STAMEM The County shall annually, on or before January I 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 A Mi JAL M&TE OF TENYEAR FINAN A , MpM(I oN The County al►all annually, on or before May 1 of each year, prepare or cause to be prepared, as updated Ten -Year Financial projection for the Disposal System, Said Financial Projection shall include at least two full years of prier actual data and ten years of firhrre projections including the following elements: 22 Execurion � 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 Environments! Fund, Restricted Reserves, Unrestricted Reserves, and all other funds of the System. 5. Projected liabilities for closure and post clOmm 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 TERM wATiON 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 relied 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 Ny�Ttt CE t ADWJ A i('rN. 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 Tam 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 tenainatios 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 Systein 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), multi0ed by the number of years remaining in the Term of the Agreement. SECTION 5.3 TERMINAMK. (A) 8v CitX. Except as expressly provided herein, the City shall have no right to germinate this Agreement (A) cause except in the event of the repeated failure or refusal by the Cocwty 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 Agreerrrent f cause under this subsection unless: or (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 wilt, in its opinion, give the City the right to terminate this Agrancut 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 breach of Section f the City's conclusion that such failure or refusal to perform has occurred or constitutes a material 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 Examifim copy 23 County shall have diligently taken steps to correct such breach within such reasonable period of time, the some shall not constitute a breach giving rise to the right of ter nintion 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 Amt 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 (m 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 terne 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 timer 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 ad, 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 fin*cx c rcise thercof of the exercise of any other right, power or remedy. -SECTION 5.5 BORUM FORD--SPUTE 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 el%ct 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 teens, in which event the Term shall be deemed to have expired as of the date of such termination. (B) Qpdcn 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 hereoE The City shall give the County writte a notice of its irrevocable election to renew this Agreement on or before June 30, 2017. If the parties do not renew this Agit by June 30, 2018, the Agreement shall expire on June 30, 2020. (C) CQUUW H§JpJ21WN Renewal Term. In connection with the parties' right to renew this Agreement for an additional tea -year term pursuant to Section 6.1(B), the parties shall, on or before June 30, 2018, negotiate an applicable change is the Contract Rate for such renewal term, In determining any revisions to the L•kWJ1k n COPY 24 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 vost of operations; Ci) population growth; increase or decrease in available tonnage; (iv) economic and disposal market conditions in the Southern California region; (v) chagges in transportation and technology, (vi) closure and expansion of nearby landfills; (vii) capacity of the Disposal System; and reserves. (viii) available reserves which are in excess of the amount reasonably required as (D) Survival_ Accrued Rialrts. The rights and obligations of the parties hereto pursuant to Sections 3.1(E)(2), 5.1, 53, 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 affoct 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 IICEMENT DATE. (A) Obligations of the Parties Prior to the Commen Date. The parties acknowledge that the Dispo.4a1 Agreements may be executed and delivered on different dates and that, except as provided in this subsectiaq neither the County nor the City shall be obligated to perform its obligations herder until the participation threshold provided herein has been met and the other conditiomas to the *=rrence of the pm t Date have occurred. Prior to the Commeemement Date, each patty 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 Comnmmcement Date set forth herr'in 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 Bong uundatalang. Until the Commencement Date occurs, the Original WDAs shall remain in full force and (B) The Commencement Date for the Agreement shalt be the date on which the percentage of the County's Acceptable Waste attributable to Participating Cities which have executed and delivered Disposal Agmmnermts shall exceed 85"A percent (using the permtage rates attributed to such Cities in Appendix 1). Unincorporated County is assumed to be a Participating City for the Purposes f determining the Comm Commencement Date in accordance with this Section 6-2Agreemm (b) and Appendix 1 of this (C) Satigfttionn of Condition and CQ n+P•+mt Date. Upon the satisfaction or waiver of the condition to the Commencement Data the County shelf give written notice thereof to the cities which have theretofore executed Disposal Agreements. The parties shall fitaeupon hold a formal closing acknowledging the satisfaction or waiver of the condition to the Commencement Date, euatifying that the Commit Date has occurred and designating the Participating Cities. Copies of all of the documents or instruments constituting or ening mon of the Commencement Date editions shall be finnished to each party prior to or on the Examtkxi ctw 25 (D) Ns&. lagagmigd 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 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 Con itim if by l DAYS AFTER BOARD APPROVAL], or such later date as the County may agree, the condition to dle 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 termfimated 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 OPERA ON AND MAMENANCE 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 acaordxnce with Applicable Law and the operating rules and regulations of the Department. SECT JON 7.2 ' _LiNCS KIROL• LABLE CIRCUMSTANCES GENERALLY. (A) Performance EZ = -&d.. Except as otherwise specifically provided in this Agee u=t, neither the County nor the City shall be liable to the other fix 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 patty 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 them& its estimated duration, the estimated time daring 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 wed 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 ceasation of such Uncontrollable Cirermnst mce. Whenever such act, event or condition shall occur, the party claiming to be adversely affected thereby shall, as promptly as reasonably possible, use its beat 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) —hwad on Contract Rate. If and to the extent that Uncontrollable Gages interfere with, delay or increase the cost to the. County of meeting its obligations hcrvunder and providing Dispw al Services to the Participating Cities in accordance herewith, the County shall be entitled to an increase in the Coatrxt 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 ddermination of cost hxreases payable under this subsection Any oast reductions achieved through the mitigating measures undertaken by the County pursuant to subsection 7.2(B) hereof upon the occurrence of are Uncx}ntrollable Circ urnstance shall be reflected in a reduction of the amount by which the 26 Exwutkm CoW Contract Rate would have otherwise bon increased or shall serve to reduce the Contract Rate to reflect such mitigation measures, as applicable. SECTION 73 xNDEMNOCATION. To the extent permitted by law, the County agrees that, it will Protect, mdcmnify, defend and hold harmless the City from and against all Loss -and -Expense arising fi-om the City's activity as an `5an=ge:" (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 cotmsel 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 insured by the County pout to this Seclioyn 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) herran. The County shat! not, however, be required to indemnify or defend the City from and against all Loss-and-Expe arising from any willful, lawwurg, illegal oar negligent disposal of hazardous waste (other &an incidental amounts of Household Hazardous Waste commanly 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 hWenmity 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 cam. The City aelrnowledges 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 respondbrIty whatsoever with respw 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. (A) To the C 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 fimds or general credit of the City for the payment of any amount due the County hereunder, or the performance of any obligation insured heretmder, including any Losr- 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 shaIl 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 m 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 herwndex. (B) To the CoM. 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 insured hereunder, including any L,oss-and-Expenae 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 amournts 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 SW constitute property of the City. 'Ile County shall make adequate provision in the administration of the County Solid Waft Enterprise Fund for the payment of any amount or the perfarmance of any obligation which may be due hereunder. SEC7`IQN 7•6 PRE- IRC MMAN) LMUXCMS. Nothing in this Agreement is intended to affect, release, waive or modify any rights, obligations or liabilities which any party had* ray 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. i+ace04fa QW27 SECTION 7.7 NO VESTED RIGS, 'Ibe City shall not acquire any vested property, license or other rights in the Disposal System by reason of this Agreement. SECTION 7.8 LIABILTTY FOR COLLECTION. TRANSPORTATION ANP PROCESSIIVG. 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 undo- 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 AMMbMM. 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 LMGATTON. Each party Mall 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, make, do, execute;, acknowledge and deliver any and every such further resolutions, ads, 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 AS,SIGNMEATT OF AGREEMENT. (A) Assigq= 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 sola 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 asagarnent 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 We of the Disposal System which provides for an effective date for such sale prior to the termination of this Agreement. SECTION 7.14 IrMUST ON 4yMRDUE OBLIGATIONS. Except as otherwise provided herein, all amounts due hereunder, whether as damaSM credits, revenue or reimbursements, that are not paid when due Mall 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 addend 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 air 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 ley by notice to the other party 28 Exwjdm Copy • • IN WITNESS VMMEOF, COUNTY and CITY have caused this Agreement to be executed by their duly authorized officers or repmsWatives as of the day and year first above written. COUNTY OF ORANGE Data D Date APPROVED AS TO FORM COUNTY COUNSEL ORANGE COUNTY, CALIFORNIA By Date 8y By 29 B�oc�dioo Copy . Dhvc(or, OC Waste & Recyding INANE] City Repre=tative City of Newport Beach INAME) City Representative City of Newport Keach APPROVED AS TO FORM: City Attomev ATTEST: City Clerk City of Newport .Beach ddoo ak'j aDvmxoi rivfxmw amaHum T 3aCLNHddK 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 13.4% Santa Ana 10.6% Irvine 7.5% Huntinmon Beach 6.090 5.9% Garden Grove 5.1% Fullerton 4.5% Univ rated Orange Coun 4.3% Costa Mesa 3.6% Newport Beards 3.060 Lake Forest 2.6% Buena Park 2.5% mssion 3 l�o 23% Westminster 2.3'% Yoft Linda 2.3% Brea 2.10% Tustin 2.096 1.9% La Habra 1.80/6 San Clemente 1.7% Fountain Valley 1.6% Lamma N" el 1.6% Placentia 1.6010 San Juan Capisftmo 1.6% Layina Beach 1.4+% Dana Point 1.2% Stanton 1.1% Rancho Santa mamdta 1.090 Lamna Hills O.gl%a Sad Beach Me AFS Vi .a 0.7% Los Alamitos 0.5% La Palma 0.3% !Ams%ods 0.2•% Villa Pack 0.2a kp Total 1000/0 (1) Unincorporated Cozmty is assumed to be a Participatmg City for the purposes of &twznin ft the Commeaoement Date m ice with Smdon 6.2(b) of ibis Agreement (2) A Participating City will arty 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 within such Participating City Execution Capt' • APPENDIX 2 • Cumulative County Acceptable Wwte Tannage Target to be Used for Purposrs of Section 4.2 (B) Discal Year Conary Acc T&We Waste Cumulative County Ton 9e Acmpftble Warsk Tonnage FY 2008-09 3,174,387 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 Ev=udon Copy • APPENDIX 3 CUMULATIVE CAPITAL COSTS to be Used for Purposes of Section 4.2(A)vi • Fiscal Year eui June 30 Annual Capital Costs Cumulative Capital Costs 2009 $37 939 38 $37,939,538 2010 $59,343 $97,242,943 2011 $10.433,979 $107,716,921 2012 $13,678,113 $121,395,M4 2013 $17,525,040 $138,920,074. 2014 $11 ,259 18 $150,179,592 2015 $37,68Z759 $1872862,350 2016 $1,068,900 $19 931,150 2017 $1066 5 $201,593,415 2018 $29,397,494 $23&9912113 2014 $8.263,795 $241,M,908 2020 45,103,805 $286,358,713 Ruartim Copy • APPENDIX 4 FORM OF HAULER ACKNOWLEDGMENT Executbon Copy • • 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; anQ [WHEREAS, the Franchise [SUBSTITUTE "AUTHORIZATION" THROUGHOUT IF APPLICABLE]] provides for the collection and disposal of certain municipal solid waste as described thmein ("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 I== Disposal System (the "Disposal System"); and WHEREAS, under.ahe 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 genmted 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 ewer into this Acknowledgment to assure that the City and the Franchise Hauler will he 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 conside.ration 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: Capitalized terms used and not otherwise defined herein ars used as defined in the Disposal Agreement. Ex*Mion Copy 2. The Franchise Hauler hereby waives any right which it may possess under applicable law to contest on any ground, constitutional, statutory, am 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 beat 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 ash the City in complying with its obligations under the Waste Disposal Covenant in Section 3.1 of the Dispbsal Agreement. S. The Franchise Hauler shall not haul Controllable Waste to any materials recovery facility, eompostmg facility, intermediate processing facility, recycling center, transfer station or other waste handling or III anagenneat facility unless the contract or other agrectuent 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 eooskituting City. Acceptable Waste (or Tonnage equivalencies) and the City Acceptable Waste hwderred 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 explicitly given the Franchise Hauler in the Franchise to recycle City Acceptable Waste, except as provided in paragraph S above with respect to Residue from any such recycling operations. S. 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 ford and effect and shall be legally binding upon the City and Franchise Hauler from the dated hereof and shall continue m 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 tannage collected within the County, and outside the County (if relevant to confirming tonnage onigination), separated by jurisdiction, by load type (residential, commercial, roll -off boxand 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 pe camel available to the County and/or its auditors. Execution Copy IN WITNESS WHEREOK the parries have caused this Acknowledgment to be executed by their duly autho i=d oft'iren or representatives as of day of------, 2009. CrrY 4F Signature: Printed Name: _ Title: (Franchise Hauler) Signature: Printed Name: Title: 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 Manaqement 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 Cit (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 Collection and Transportation Headcount (leave blank if the position is not DroDosed): 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 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 3 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 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. Cost Category Percent of Cost Notes (Weighting) 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 All Other Costs 67% Beach -Anaheim, CA, all urban consumers, not seasonally adjusted (CUURS49ASAOLIE), or 2.5%, whichever is lower" Total 100% Total adjustment not to exceed 5% increase in any year It an index is discontinued, an alternate index (as described above) must be approved by City. "This index may be accessed here: https://data.bls.gov/timeseries/CUURS49ASAO Attachment J Page 2 of 9 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 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 D E A B C Adjustment Total Percent Change in Index (Column Category Index Old Index Value New Index Value B/Column A = "X"). X/Column A = Index Factor Change in Change Row of Component Index from (Columns D x Row % 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 D E F Cost Factor Total Category Percent Weighted Adjustment Factor Index Weighted as a % Change in Change of Component Index from (Columns D x Row Total (4) Column (C) 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 1 Total (See Footnote 5) 100% :. 2.0% Attachment J Page 4 of 9 ATTACHMENT Annual Contractor Compensation Adjustments Step Three: Apply Percentacie Chance to Costs Attachment J Page 5 of 9 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 G + Column F) Column Column 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 1 $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 a 2.0% $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 o 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 /o $0.17 $8.47 23 Charge Delay Period Premium Valet Cart Service Charge paid by City during Extra Service $27.68 o 2.0 /o $0.55 $28.23 24 Charge Delay Period Attachment J Page 5 of 9 ATTACHMENT J Annual Contractor Compensation Adjustments atep your: Ke-wei nt most c:om onents K L M N O Adjusted Change In Cost Cost Components Cost Percentage Cost Component Reweighed to Adjustment Change in Equal 100% Factor Index Component Index Components Weightings (Column N Row (Column D) (Column K x (Column K (Column E) divided by Column Column L) +Column Row M) N Total) 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 1.5% 1 1.0% 1 67.0% 65.7% 28 Total 100.0 1 102.0% 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 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 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 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 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 1st through December 31St). 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 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 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 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 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 Contractor f. The number of notifications received from a solid waste facility 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 issued by operator ATTACHMENT L Bond No. 800016851 Performance Bond KNOW ALL PERSONS BY THESE PRESENTS, that cR&R Incorporated Ihereinafter called the PRINCIPAL, and Atlantic Specialty Insurance Company , a corporation duly organized under the laws of the State of New York having its principal place of business at 605 Highway 169 North, Suite 800, Plymouth , in the State of Minnesota 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 Three Million & no/100s Dollars ($ 3,000,000.00 ) 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 and Other Materials 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, January 15, 2022, 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 January 15, 2023 in the sole discretion of the SURETY by means of a continuation certificate signed at least ninety (90) days prior to January 15, 2023 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 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 17th day of December , 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. PRINCIPAL: CR&R Incorporated B Clifford Ronnenberg SURETY: Atlantic Specialty Insurance Company Attorney -In -Fact Margareta T. Thorsen 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 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 i 09a 06 M% A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. l State of California County of Los Angeles On b-11 _U before me, Sonia Vizcarrondo, Notary Public Dote Here Insert Name and Title of the Officer personally appeared Margareta T. Thorsen Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) islare subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing • '�. SONIAVIZCARRONoo paragraph Is true and correct. Notary Public •California Los Anseies County WITNESS my hand and official Seal. Commission a 2256337 ell n � My Comm Expires Sep 24,1022 Signature Place Notary Seal cxnd/or Stamp Above SiVnature# Notary Public OPTIONAL Completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document Description of Attached Document Title or Type of Document:. Document Date: Signers) Other Than Named Above: Capacity(les) Claimed by Signer(s) Signer's Name: © Corporate Officer -- Tltle(s): ❑ Partner -- sa Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian of Conservator ❑ Other: Signer is Representing: 02017 National Notary Association Number o€Pages: Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact o Trustee ❑ Guardian of Conservator ❑ Other: Signer is Representing: t tl INSURANCE F'` ' m e r of Attorney KNOW ALL MEN BY THESE PRESENTS, that ATLANTIC SPECIALTY INSURANCE COMPANY, a New York corporation with its principal office in Plymouth, Minnesota, does hereby constitute and appoint: Margareta T. Thorsen, each individually if there be more than one named, its true and lawful Attorney4n-Fact, to make, execute, seal and deliver, for and on its behalf as surety, any and all bonds, recognizances, contracts of indemnity, and all other writings obligatory in the nature thereof; provided that no bond or undertaking executed under this authority shall exceed in amount the sum of: unlimited and the execution of such bonds, recognizances, contracts of indemnity, and all other writings obligatory in the nature thereof in pursuance of these presents, shall be as binding upon said Company as if they had been fully signed by an authorized officer of the Company and sealed with the Company seal. This Power of Attorney is made and executed by authority of the following resolutions adopted by the Board of Directors of ATLANTIC SPECIALTY INSURANCE COMPANY on the twenty-fifth day of September, 2012: Resolved: That the President, any Senior Vice President or Vice -President (each an "Authorized Officer") may execute for and in behalf of the Company any and all bonds, recognizances, contracts of indemnity, and all other writings obligatory in the nature thereof, and affix the seal of the Company thereto; and that the Authorized Officer may appoint and authorize an Attorney -in -Fact to execute on behalf of the Company any and all such instruments and to affix the Company seal thereto; and that the Authorized Officer may at any time remove any such Attorney -in -Fact and revoke all power and authority given to any such Attorney4n- Fact. Resolved: That the Attorney -in -Fact may be given full power and authority to execute for and in the name and on behalf of the Company any and all bonds, recognizances, contracts of hidemnity, and all other writings obligatory in the nature thereof, and any such instrument executed by any such Attorney -in -Fact shall be as binding upon the Company as if signed and sealed by an Authorized Officer and, further, the Attorney -in -Fact is hereby authorized to verify any affidavit required to be attached to bonds, recognizances, contracts of indemnity, and all other writings obligatory in the nature thereof. This power of attorney is signed and sealed by facsimile under the authority of the following Resolution adopted by the Board of Directors of ATLANTIC SPECIALTY INSURANCE COMPANY on the twenty-fifth day of September, 2012: Resolved: That the signature of an Authorized Officer, the signature of the Secretary or the Assistant Secretary, and the Company seal may be affixed by facsimile to any power of attorney or to any certificate relating thereto appointing an Attorney -in -Fact for purposes only of executing and sealing any bond, undertaking, recognizance or other written obligation in the nature thereof, and any such signature and seal where so used, being hereby adopted by the Company as the original signature of such officer and the original seal of the Company, to be valid and binding upon the Company with the same force and effect as though manually affixed. IN WITNESS WHEREOF, ATLANTIC SPECIALTY INSURANCE COMPANY has caused these presents to be signed by an Authorized Officer and the seal of the Company to be affixed this twenty-seventh day of April, 2020. On this twenty-seventh day of April, 2020, before me personally carne Paul J. Brehm, Senior Vice President of ATLANTIC SPECIALTY INSURANCE COMPANY, to me personally known to be the individual and officer described in and who executed the preceding instrument, and he acknowledged the execution of the same, and being by me duly sworn, that he is the said officer of the Company aforesaid, and that the seal affixed to the preceding instrument is the seal of said Company and that the said seal and the signature as such officer was duly affixed and subscribed to the said instrument by the authority and at the direction of the Company. ALISON DWAN NASH-TROUT NOTARY PUBLIC • MINNESOTA My Commission Expires January 31, 2025 4y Notary Public I, the undersigned, Secretary of ATLANTIC SPECIALTY INSURANCE COMPANY, a New York Corporation, do hereby certify that the foregoing power of attorney is in full force and has not been revoked, and the resolutions set forth above are now in force. Signed and sealed. Dated 17th day of December 2021, •.,��, CO SEAL rn `= 1986. o This Power of Attorney expires r��`y�w Y�P(� -4 January 31, 2025 �''�•b k. ?��.��''� Please direct bond verifications to retyCa)iiitacti.iisuraiice.cutii .c, Kara Barrow, Secretary SEAL 1986 `6 /A By STATE OF MINNESOTA-''2b'yW_ vo?da'� ��� Paul J. Brehm, Senior Vice President HENNEPIN COUNTY On this twenty-seventh day of April, 2020, before me personally carne Paul J. Brehm, Senior Vice President of ATLANTIC SPECIALTY INSURANCE COMPANY, to me personally known to be the individual and officer described in and who executed the preceding instrument, and he acknowledged the execution of the same, and being by me duly sworn, that he is the said officer of the Company aforesaid, and that the seal affixed to the preceding instrument is the seal of said Company and that the said seal and the signature as such officer was duly affixed and subscribed to the said instrument by the authority and at the direction of the Company. ALISON DWAN NASH-TROUT NOTARY PUBLIC • MINNESOTA My Commission Expires January 31, 2025 4y Notary Public I, the undersigned, Secretary of ATLANTIC SPECIALTY INSURANCE COMPANY, a New York Corporation, do hereby certify that the foregoing power of attorney is in full force and has not been revoked, and the resolutions set forth above are now in force. Signed and sealed. Dated 17th day of December 2021, •.,��, CO SEAL rn `= 1986. o This Power of Attorney expires r��`y�w Y�P(� -4 January 31, 2025 �''�•b k. ?��.��''� Please direct bond verifications to retyCa)iiitacti.iisuraiice.cutii .c, Kara Barrow, Secretary ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of Orange On Jan 11, 2022 before me, personally appeared Clifford Ronnenberg Kim U. Nguyen, Notary Public (insert name and title of the officer) who proved to me on the basis of satisfactory evidence to be the person(e) whose name(s4 ism subscribed to the within instrument and acknowledged to me that he/s� executed the same in his/bAdth4@4 authorized capacity@es4, and that by his'"�,er4thei signature(&) -on the instrument the person(e), or the entity upon behalf of which the person4s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) KIM U. NGUYEN Notary Public - California Orange County r Commission # 2256335 My Comm. Expires Sep 26, 2022 ATTACHMENT M Bond Continuation Certificate In consideration of the premium charged, hereby continues in force: Bond #: Dated: In the amount of: on behalf of the City of Newport Beach, for the period: Beginning: And Ending: subject to all terms and conditions of said Bond, PROVIDED that the liability of: (NAME OF SURETY) 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. Signed and Sealed: ATTACHMENT M Bond Continuation Certificate Attorney -In -Fact [ACKNOWLEDGEMENT] (date) 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 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 1 c. Characterization Protocol for MSW Being Delivered to Disposal Site .....................11 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 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 Required Frequency of Performance Requirements Characterizations & Audits Sector Diversion Program Divertible On-site Field Phase 1 Phase 2 Materials & MSW Cart Contamination Contamination Contamination Characterizations Audit Cap by 2024 Cap by 2026 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 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 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 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 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 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 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 Attachment N Characterizations of Divertible Materials and MSW and Periodic Onsite Field Cart Contamination Audit Protocols The Category 2 nori-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 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 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 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 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 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 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 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 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 a. During calendar year 2024, using the protocols included in Subparts 1 a, 1 b and 1 c 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 Attachment N Page 18 of 29 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 Attachment N Characterizations of Divertible Materials and MSW and Periodic Onsite Field Cart Contamination Audit Protocols 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 Attachment N Page 20 of 29 Attachment N Characterizations of Divertible Materials and MSW and Periodic Onsite Field Cart Contamination Audit Protocols 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. Attachment N Page 21 of 29 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 Year*4 YR 1 YR 2 YR 3 YR 4 YR 5 YR 6 YR 7 YR 8 YR 9*"` YR 10** 1/15/22— 1/1/23— 1/1/24— 1/1/25— 1/1/26— 1/11/27— 1/1/28 - 1/1/29— 1/1/30— 1/1/31- /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 Ss Q 1.2022. Q2 2023 (HI), Q4 Q! 2024 Q2 2025 (HI), Q4 Q1 2026 Q2 2027 (HI), Q4 Q1 2028 Q2 2029 (HI), Q4 Q1 2030 Q2 2031 (HI), Q4 RECYC (LO), Q3 2023 (LO), Q3 2025 (LO), Q3 2027 (�O), Q3 2029 (�O), Q3 2031 2022 (HI) LO 2024 (HI) LO 2026 (HI) LO 2028 (HI) LO 2030 (HI), LO Cn 01 2022 Q2 2023 Q1 2024 Q2 2025 Q1 2026 Q2 2027. Q1 2028 Q2 2029 Q1 2030 Q2 2031 o M GW/FS (LO), Q3 (HI)' Q4 (LO), Q3 (HI)' Q4 (LO), Q3 (HI)' Q4 (LO), Q3 (HI)' Q4 (LO), Q3 (HI), Q4 2022 (HI) 2023 LO 2024 (HI) 2025 LO 2026 (HI) 2027 LO 2028 (HI) 2029 LO 2030 (HI) 2031 LO Q1 2022 Q2 2023 Q1 2024 Q2 2025 Q1 2026 Q2 2027 Q1 2028Q1 Q2 2029 2030 Q2 2031 MSW (LO), Q3 (HI), Q4 (LO), Q3 (HI), Q4 (LO); Q3 (HI), Q4 (LO), Q3 (HI), Q4 (LO), Q3 (HI), Q4 2022 (H 1)1 2023 2024 (HI) 2025 LO 2026 (HI) 2027 LO 2028 (HI) 2029 LO 2030 (HI) 2031 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 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 uadrate Number " A B C D Total Weight Container Weight Net Weight(A-B=C Percent Unflaftned Corr bad Cardboard Flat CoatedCoatid Corriunated Cardboard Unflat'Coaied Corrugated Cardboard Office Pa r Colored LWor Pa r . Computer Paper Mixed Paper: Clear Glass Safts & Containers . Colored Glass Bottles &"Contalners Ferrotia`Mobls Non Ferrous Metals HDPEPlastic: PET Plastic . Film Plague Rldld Plastic wow, `Tires Household Hazardous Totalftcyclables . . Texdles Remainder/Composite Plastic Food Verdes e..de^a. Opaa101.Typo r 4emainder/Comaosltl Mixed Residue Total Contaminants Total Sample Weight Sample Diversion Percentage Notes: Attachment N Page 23 of 29 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 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: MSW Items Category 2: Recyclable Items Notes / Notas: Attachment N Page 24 of 29 Attachment N Characterizations of Divertible Materials and MSW and Periodic Onsite Field Cart Contamination Audit Protocols Exhibit N-4: Characterization Form for MSW Attachment N Page 25 of 29 Attachment N Characterizations of Divertible Materials and MSW and Periodic Onsite Field Cart Contamination Audit Protocols Exhibit N5 — Cart Contamination Minimization Audit Field Sheet MENEM :SIC: E 110110010110110, IM LA lu Cr u�MYIYlYlIL 15 x9 IM CL M CM CL QQ OR su LD. Y� �p Cr 38 Attachment N Page 26 of 29 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 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 Total Composite Total Composite Annual Characterization #1 Characterization #2 Annual Supplemental Characterization Characterization Characterization with Supplemental Characterization with Supplemental Divertable Materials (Ibs). 154 210 364 Characterization Divertable Materials (lbs). 45 65 110 Contaminants Ilbs.l 199 275 474 Total Sample Weight (lbs.) 23% 24% 23% Contamination Percentage 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 * 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 61. 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 Total Composite Total Composite Annual Characterization #1 Characterization #2 Annual Supplemental Characterization Characterization Characterization with Supplemental Characterization Divertable Materials (Ibs). 154 210 364 Contaminants Obs.) 45 65 110 Total Sample Weight (lbs.) 199 275 474 Contamination Percentage 23% 24% 23% * 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 61. 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 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 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 Contaminants (lbs.l 45 80 125 25 150 Total Sample Weight (lbs.) 199 290 489 175 664 Contamination Percentage 23% 14% 23% * 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 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 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 0 1 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 I�. A O O -h -�, m n O (D �+ n � -• n �D O v - LA M LA m N �I n m rD 0 got 4p -Ivl% 10 Mom FI] h N v10 0 z rr 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' - - W 16th Slt /� C` r orb dy,. ` D ET 5.1 �/, ':•, - ,� �/,/ - Via. - ,i�M�f1t1 c N F� roi sv O � Sunset .: ds Ida Park- _"" "'�....��"�-+ C Icy r. C., .�� "'�S Back Ba iiewport z' Beach Via Kings Rd '' o Ilia °NO`u St via -Lid, ILfdo sO(It! :Ma�;,�, Newport Channel ,. r `k at o Legend C-s B' " Permanent STIR with Summer Saturday Service Non-STR Residential Summer Saturday Service Hauler Route Miles 0 0.25 0.5 1 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 - a yN I; F Iy � V A 0", Newport �41 Shores a N:vjuit Fk ach Gm I f A h i I 1 N Pacific Ocean Hauler Route - Permanent STIR with Summer Saturday Service -a Non -STR Residential Summer Saturday Service 0 0.125 0.25 0.5 Miles 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 S` Pio ,5 hloa�� 4f � Stinsat Vow Park - M Maca Park channel pl E West Q y Turninig Basi `P 7 38N `o i� j o 0N Newport Beach \. c _ Form;r gip; eco city. —.° Kill Fire, 5l itnn 02 Lilo- a�r Jia Pack Hauler Route C. ` 31st St a rag �. Rhine Wharf Permanent STIR with Summer Saturday Service �ti She Lin ling Park Shopping Cant r 0 { Non-STR Residential Summer Saturday Service 0 0.125 0.25 0.5 Miles let- .. 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 a<°° ,� n:�lr e,y. 31st St Lp ab ° clue- ,t k °, P,k °G ry°N Lido Channel 'Jo ° 7 U °O 0 41 o' Lido Isle Newport FFjA��_CJ6,O C� i. S r. </ry tiUA .Village C`-..� .y. v , r e � J -Z The Rhine is f 2�ta5 O 11-1 ti l ry. ';. N r . -1�cfaa �---M1Ur(i`1aPerk IN r •,: Ino Ara- MurmtWl Park. Likxlu di IN Ba16aa -Park J S Hanrlquat r: f-- IVd Ch I - tla,•:Ivrt Pear It cr Our.an El�mentarY ,� C� <oai Hauler Route ile-h�� Ifj�l 1,�rr Permanent STIR with Summer Saturday Service Non-STR Residential Summer Saturday Service 0 0.125 0.25 0.5 tiles 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 a zuc` Balbc �a Q' G 1 1� P»rl i P9 'c unl,ry Newport Channel � ry a, e e oQ r �F: Hr�i Ii Lll,nry `a ,,Zr E H]IbO.I II For R y Hallc,,, oa f? vlbn; T O lil US P-1. / Hlt P•ry.. P 11 F ting. R, PrnlnaWa o' Polk .. s H.rl— Pier - - Hauler Route Rnlrys RaA ui,int - Permanent STIR with Summer Saturday Service I......,.... i Non-STR Residential Summer Saturday Service 0 0.125 0.25 0.5 Iles Attachment S Maps of Summer Saturday Service Areas in City ATTACHMENT T Guaranty THIS GUARANTY (the "Guaranty") is given as of the day of , 20221 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.A /2- ,A is a corporation organized under the laws of the State of l=� ("Contractor"). Guarantor is a B. The City contemplates entering into a "Contract for the Collection, Transportation, Processing and Diversion of Residential Recyclable Materials, Food Scraps, Green Waste and 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 Pagel of 4 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 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: �"e Name �'1����--��'��"✓� Oda (Address, City, State, Zip) S4ao,f E A- ?,D4 � 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 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: Public Works Director 100 Civic Center Drive Newport Beach, California 92660 With a copy to the City Attorney at the same address. To Guarantor: Name; �(�0►°7 Street Address City State Zi Code! - - - — -- - - -- -- --P -- - - 1 <5 ,'� 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. Title: By: Name: Title: O KnIsC—fl—lo Page 4 of 4 ATTACHMENT U Minimum Required Duties of Recycling Coordinators Number of Recycling Coordinators Pursuant to Section 7.05.H 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 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. 2. 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 Ca rts. 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 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 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 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" Lid Hinged, stay open, odor seal, and fly and insect seal Dishwasher safe Yes Attachment W TRANSFER STATION OPERATING AGREEMENT THIS TRANSFER STATION OPERATING AGREEMENT ("Agreement") is made and entered into as of this 1.�; day of'�,VNV r 2022, by and between the City of Newport Beach, a charter city and municipal corporation ("Ci y"), 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. 1 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 2 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; 3 (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 4 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 6" 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 6 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 rl 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. 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. �7 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. 10 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 11 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. 12 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. 13 (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. 14 (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 15 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. 16 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 17 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. Defau It/Term i nation 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. (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 19 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/Geen 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 20 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. 21 (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, 22 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 Operators 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. 24 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: r C. Harp City Attorney ATTEST: 11!.. lily •�� % City Clerk CITY OF NEWPOBEACH, California / al corporatie Muldoon OPE R: / rwko�/ By ` (Corporate Officer) Title: Print Namel«�� By: (Financial O icer) Title: (JL r j i Print Name: N!IC> N N 6t=1 -L 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 500 East of a point 30 feet South 400 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 500 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 400 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. 26 27 Exhibit "B" Solid Waste Facility Permit No. 30 -AB -0361 SOLID WASTE FACILITY PERMIT Facility Number: 3o-AB-0361 1. Name and Street Address of Facility: 2. Name and Mailing Address of Operator: 3. Name and Mailing Address of Owner: City--oiNewport Beach Transfer Station CR&R Incorporated _._ _City of Newport Beach 592 Superior Avenue 11292 Western Avenue 3300 Newport Boulevard Newport Beach, CA 92663 Stanton, CA 90680 P.O. Box 1768 Newport Beach, CA 92658-8915 4.Specifications: a. Permitted Operations: D Solid Waste Disposal Site D'Transformation Facility ZJ 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 Day 8.20) c.Permitted Maximum Tonnage: d.Key Design Parameters (Detailed parameters are shown on site plans bearing EA and CalRecycle validations): Total Transfer/Processing Permitted Area (in acres) 1.0 Design Capacity (cu.yds) 720<21 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. 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 18. 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 31 Facility Number: SOLID WASTE FACILITY PERMIT 30 -AB -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) NOE (Class I Categorical Exemption) 05/08/2003 10/09/1998 Waste Discharge Requirements 01/18/2002 31 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 Page 2 of 4 32 SOLID WASTE FACILITY Facility Number: PERMIT 30 -AB -0361 16. Self Monitoring: 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 • Program and all other prohibited waste screening/load checking programs ly (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 Working Draft 12/17/21 SOLID WASTE FACILITY PERMIT Facility Number: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 I 7(b). d) As outlined in Section 16, the operator shall maintain at the facility a daily log of special/unusual occurrences (SIU 0). The log shall document, but not be limited to public nuisance complaints (e.g., noise, dust, offsite migration of litter, etc.), fres, 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. 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O •=' ` A N 9 O C A C a? 6 �' ° 00 O- O S a N O. fyD �s d �r < o N £° :a _ V y •2 3 �• < N= C T O N a N = a yds d N A B o Q _ o o n a o `so - s oP. A Ao E o 7r a g v. T T " a D =. �' �J w m m `d u ^o c s D z A w Q n 8 w° �' w' n. c c m '.ot c d a 8 c E z$ o 8dr r 3 d o ra, a— 'm c rt o _ rt= 'o 'm o a F .8 w P .°. ..° m u Fd 3 G E @ 3 T= A - 3 8 v 8 3 c a A d 3 3 '•a• o Ncl n m o m < m a x a d a3 uy °° °• $ 3 G N w A Y 2' n c -o F n m i 3 c c s m o. •uT °gg c °? a8 c w IIm o n 2 a __ c :� m v R s s _ v= a 0 3 z A o^ N g m£? _ m .$i o o 'o a o. = a N r' n - o m a 0 n 3 n n a.. a n= Q- 3= n n n E A 3 F' E o a S o y N o m W AN F' .£ v. N itn n n z z D g 9 a n '° D D D F' p Pr? D D O o N» E O A O •? ° iD Z Q n D w Q A tN1iy - A ¢ Iz- C A n ., �. D m G G q �`m � m»A3 x;sa 3 V m .. m n G' S f'1 < S a 0f1 c C F 3 9 D d Qr 3 m X v C Q' n m C 0 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. Additional Services Monthly Total Collection of Non -Containerized Materials During "Grace Period" $ Emergency Collection Services - one 2 -person crew and truck $ Additional Load of Bulk Compost $ Additional Ba p (Single $ Bagged Compost Sin le p allet or load of 24 pallets) Subtotal Additional Services ATTACHMENT Y Page 1 of 11 ATTACHMENT Y Page 2 of 11 OCr-;eR onvuvnmomaf fUrvIC01 CITY OF NEWPORT BEACH Diversion by Cort Typo May -21 Month: March MSW Cart Recycling Cart Food Scraps and Green Waste Cart Collected Tons 2,000.00 11000.00 11000.00 Disposed Tons 2,000.00 100.00 50.00 ATTACHMENT Y Page 3 of 11 Total 4,000.00 2,150.00 1,850.00 L O U- U ATTACHMENT Y Page 4 of 11 'll, 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 Sunday, May 16, 2021 3 0 Monday, May 17, 2021 4 Tuesday, May 18, 2021 8 Wednesday, May 19, 2021 8 ThursdaLz-y, 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 �f 8 CL 'o v v C C 0 0 c IA w 0 0 0 V c c 7 Q ATTACHMENT Y Page 6 of 11 t O a a U o S Z c vii rn m m `m 2 LrEO ° � u c .O a LL�+ N o 2 Z r O w W 0 G �_2 ATTACHMENT Y Page 6 of 11 ATTACHMENT Y Page 7 of 11 Q G 1RFq environmental services THE CITY OF NEWPORT BEACH Sharps Report Report Month: May 2021 SHARPS 18 16 iiE 39 s Account total does not include duplicates ATTACHMENT Y Page 8 of 11 OCFqM1q environmental services Ili. loco of n Qlnanor 00"0"10, THE CITY OF NEWPORT BEACH COMPLAINT REPORT Month: May 2021 RESIDENTIAL ACCOUNTS: CUSTOMER ADDRESS . SONIA GREGUREK721 W. 8A BOA BLVD. BACBOA 5/25/2021 Action Taken Action Taken Action Taken Action Taken ATTACHMENT Y Page 9 of 11 NOTE Resident complaint of missed -up on 5/2 Notified Ops, unable to pick -as scheduled due to street slurry proje< Serviced cart before 9:00 AM Customer complaint of cart placement following servicing Route manager visited location. Residents place carts far In street Attempted to contact resident and discuss challenges and solutions Customer complaint of missed courtesy pick up Notified Ops, verified schedule Indicates that back-up driver was servicing route todi ;had relief driver, returned to service customers carts e^I }a O IA � fO � u° CL C Z U o .. •� o fa!'! E 0 E E ` a V3! O E o V 01 0 42c o 4+ M r C W u` � c y a ATTACHMENT Y Page 10 of 11 wI O i I CL m CL V E o Z 3E u z° all a a►I gnSs N: s Ot � pp�N � Nim O t ! .4' et! N � ' iii! 4 M i rl 1 3Nt 1 I � a i t I i t ATTACHMENT Y Page 10 of 11 wI O i I CL m CL V E o Z 3E u z° all a a►I MONTHLY DETAIL FOR COLLECTION OF NON-CONTAINERIZED MATERIAL DURING "GRACE PERIOD" DATE CUSTOMER NAME ADDRESS QUANTITY CHARGE TOTAL ATTACHMENT Y Page 11 of 11 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: Residences Not Served by Contractor as of the Effective Date =' Chatham Ct Mesa View Newport Terrace 0 Santa Ana Heights Newport Beach City Boundary Attachment Z Page 1 of 5 0 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. Fv n�r37Y Ur t`•` C;`_Lc .l.'r 11 01 ger Hill 4 it • • Fa F. • r /h llrrcl er6irrl Ur Ir,/ror v � o I�' ry ,•• •• • • • `c • • 'n (•` Gil _ • •••• • V ' �� � 1-rJf0l1 r.71 `- =; � t;.lntll.tn,lc • • • •.• .00 71 c Ur " � • G 1 • � _ o • "s. V, N W Fi FOfr l.//rJRr t)r� r1 _. ••• •• : • : Irn t t It- I..r rJRl" � I ".— _ � ��J�r,'"4�. ', 4t r 1 - � � - - "....- • • � Ber�'tla �"� ..I.7R[I Ur . 1�� �1 • • 3 7. a _ rllc � yr f oru rt[! Bcni4iCanyon 1 �oL " poll .Sll r•/ _Fun: Fork , `'C l'rl�ur n 61r1r y P.,rk lit 0-1r < r1 Additional detail of Newport Terrace neighborhood below. �d �f•` ? 7iollN,o Pine PI .. SeaBlull Dr .. - Oak St Pew, TerN ? n O Lindrn PI C L ,5 ; W o Q n Grove PI .. a` z p o z ». i�covery Ur i » < O _ - a W Place N Taibart W 2001 St v Newport Beach e Rtyiunalo- Srlf Park Catryon�.. Community Evergreen PI Flark v ri • � Dogwood St Cellar PI - m stc �.• S�� Arbor St :. w . -. ._'.... ........ ... W 19th St o' - c htuina view .Parkr, �. Partr' N Center St Parkhill Dr q J Center 5l cninnaker P. ^Mlle" Attachment Z Page 2 of 5 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 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 Durinq 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 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 (g) $24.44 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 Attachment Q" (j) $334,872.48 (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. (j) 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 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 SEAM IST 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 Attachment Z-1 Page 2 of 18 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 Attachment Z-1 Page 3 of 18 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 Attachment Z-1 Page 4 of 18 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 Attachment Z-1 Page 5 of 18 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 Attachment Z-1 Page 6 of 18 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 Attachment Z-1 Page 7 of 18 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 SEAM IST 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 SEAM IST 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 Attachment Z-1 Page 8 of 18 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 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 PALAllO 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 Attachment Z-1 Page 10 of 18 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 Attachment Z-1 Page 11 of 18 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 Attachment Z-1 Page 12 of 18 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 PALAllO 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 Attachment Z-1 Page 13 of 18 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 PALAllO 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 Attachment Z-1 Page 14 of 18 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 PALAllO Newport Beach CA 92660 10 MADISON Newport Beach CA 92660 5 WINTHROP Newport Beach CA 92660 31 PALAZZO Newport Beach CA 92660 33 PALAllO Newport Beach CA 92660 35 PALAZZO Newport Beach CA 92660 Attachment Z-1 Page 14 of 18 Attachment Z-1 Page 15 of 18 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 Attachment Z-1 Page 16 of 18 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 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 Attachment Z-1 Page 18 of 18 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 1 �J Insurance Brokers & Q0 Consultants v December 12, 2022 City of Newport Beach Attn: Administration Municipal Operations 100 Civic Center Dr. Bay E, 2nd Floor Newport Beach, CA 92660 (929)644-3055 RE: Name of Principal: CR&R Incorporated Name of Obligee: City of Newport Beach Bond No. 800016851 In accordance with the renewal terms of the above bond, a bond continuation certificate is enclosed as evidence that the above referenced bond has been renewed and remains in full force and effect. Should you have any questions, please do not hesitate to contact us. Thank you. Sincerely, Margo eta T. Thorsen Senior Vice President - Surety 115 North El Molino Avenue Pasadena, CA 91101 EPICBROKERS.COM EDGEWOOD PARTNERS INSURANCE CENTER I CA LICENSE 0824370 CONTINUATION CERTIFICATE The Atlantic Specialty Insurance Company (hereinafter called the Surety) hereby continues in force its Bond No. 800016851 in the sum of Three Million Dollars and 00/100 ($3,000,000.00) Dollars, on behalf of CUR Incorporated in favor of City of Newport Beach for Collection, Transportation and Disposal of Municipal Solid Waste subject to all the conditions and terms thereof through 14th Day of January, 2024 at location of risk. This Continuation is executed upon the express condition that the Surety's liability shall not be cumulative and shall be limited at all times by the amount of the penalty stated in the bond. IN WITNESS WHEREOF, the Surety has caused this instrument to be signed by its duly authorized Attorney -in -Fact and its corporate seal to be hereto affixed this 12th Day of December, 2022. Atlantic Specialty rance Co y Surety BY. Mar reta T. Thorse , Attorney -in -Fact CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA County of Sacramento On (-LI-a Date personally appeared before me, Sandra R. Black T. Thorsen SANDRA R. BLACK _ COMM. # 2385775 3 NOTARY PUBLIC • CALIFORNIA0 SACRAMENTO COUNTY Comm. Exp. DEC. 8, 2025 �rvwvvwv�r Place Notary Seal Above Insert Name of Notary exactly as it appears on the official seal Name(s) of , Notary Public, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted. executed the instrument. I certify under PENALTY OF PERJURY nder the laws of the State of California that forego g pa ra raph is true and correct. _ / J /1 Witness n%/ hand and Signature OPTIONAL Though the information below is not required by law, it may prove vaTu�e to persons relying on the document and could prevent fraudulent removal and reattachment of the form to another document. Description of Attached Document Title or Type of Document: Document Date.- Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Individual ❑ Corporate Officer —Title(s):_ ❑ Partner ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer is Representing: Top of thumb here Number of Pages: Signer's Name: ❑ Individual ❑ Corporate Officer Title(s): — ❑ Partner ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer is Representing: intact INSURANCE Power of Attorney KNOW ALL MEN BY THESE PRESENTS, that ATLANTIC SPECIALTY INSURANCE COMPANY, a New York corporation with its principal office in Plymouth, Minnesota, does hereby constitute and appoint: Margareta T. Thorsen, each individually if there be more than one named, its true and lawful Attorney -in -Fact, to make, execute, seal and deliver, for and on its behalf as surety, any and all bonds, recognizances, contracts of indemnity, and all other writings obligatory in the nature thereof, provided that no bond or undertaking executed under this authority shall exceed in amount the sum of: unlimited and the execution of such bonds, recognizances, contracts of indemnity, and all other writings obligatory in the nature thereof in pursuance of these presents, shall be as binding upon said Company as if they had been fully signed by an authorized officer of the Company and sealed with the Company seal. This Power of Attorney is made and executed by authority of the following resolutions adopted by the Board of Directors of ATLANTIC SPECIALTY INSURANCE COMPANY on the twenty-fifth day of September, 2012: Resolved: That the President, any Senior Vice President or Vice -President (each an "Authorized Officer") may execute for and in behalf of the Company any and all bonds, recognizances, contracts of indemnity, and all other writings obligatory in the nature thereof, and affix the seal of the Company thereto; and that the Authorized Officer may appoint and authorize an Attorney -in -Fact to execute on behalf of the Company any and all such instruments and to affix the Company seal thereto; and that the Authorized Officer may at any time remove any such Attomey-in-Fact and revoke all power and authority given to any such Attomey-in- Fact. Resolved: That the Attorney -in -Fact may be given full power and authority to execute for and in the name and on behalf of the Company any and all bonds, recognizances, contracts of indemnity, and all other writings obligatory in the nature thereof, and any such instrument executed by any such Attomey-in-Fact shall be as binding upon the Company as if signed and sealed by an Authorized Officer and, further, the Attomey-in-Fact is hereby authorized to verify any affidavit required to be attached to bonds, recognizances, contracts of indemnity, and all other writings obligatory in the nature thereof. This power of attorney is signed and sealed by facsimile under the authority of the following Resolution adopted by the Board of Directors of ATLANTIC SPECIALTY INSURANCE COMPANY on the twenty-fifth day of September, 2012: Resolved: That the signature of an Authorized Officer, the signature of the Secretary or the Assistant Secretary, and the Company seal may be affixed by facsimile to any power of attorney or to any certificate relating thereto appointing an Attorney -in -Fact for purposes only of executing and sealing any bond, undertaking, recognizance or other written obligation in the nature thereof, and any such signature and seal where so used, being hereby adopted by the Company as the original signature of such officer and the original seal of the Company, to be valid and binding upon the Company with the same force and effect as though manually affixed. IN WITNESS WHEREOF, ATLANTIC SPECIALTY INSURANCE COMPANY has caused these presents to be signed by an Authorized Officer and the seal of the Company to be affixed this twenty-seventh day of April, 2020. ,G\P�AY 'N5��9,,, Q GpPPORgT�, p SEAL m Y 1986 6. By STATE OF MINNESOTA Lys��Fw Yot'+da' "%�b Paul J. Brehm, Senior Vice President HENNEPIN COUNTY 1N.°' On this twenty-seventh day of April, 2020, before me personally came Paul J. Brehm, Senior Vice President of ATLANTIC SPECIALTY INSURANCE COMPANY, to me personally known to be the individual and officer described in and who executed the preceding instrument, and he acknowledged the execution of the same, and being by me duly sworn, that he is the said officer of the Company aforesaid, and that the seal affixed to the preceding instrument is the seal of said Company and that the said seal and the signature as such officer was duly affixed and subscribed to the said instrument by the authority and at the direction of the Company. ALISON DWAN NASH•TROUT NOTARY PUBLIC • MINNESOTA My Commission Expires January 31, 2025 h6tl Notary Public I, the undersigned, Secretary of ATLANTIC SPECIALTY INSURANCE COMPANY, a New York Corporation, do hereby certify that the foregoing power of attorney is in full force and has not been revoked, and the resolutions set forth above are now in force. Signed and sealed. Dated 12th day of December 2022 ,\P�Z Y W gV9.,•. dq �pFPORgTF.9n': =� SEAL m= `—' 1986 0 This Power of Attorney expires "rZb��ety Yowt-dat' January 31, 2025 1b ,t ��.• Kara Barrow, Secretary Please direct bond verifications to sureiy(a intactinsurance.com