Loading...
HomeMy WebLinkAboutC-8823-1A - Transfer Station Operating AgreementCO Q0 1 v TRANSFER STATION OPERATING AGREEMENT THIS TRANSFER STATION OPERATING AGREEMENT ("Agreement") is made and entered into as of this 6 day of rJ' P4 , 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 11 , 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.newgortbeachca.goy, 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 rd 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 5 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 7 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. E: 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. E 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. Default/Termination The following list of events shall constitute an event of default by the Operator. This is not an exclusive list of defaults and failure to perform other Agreement terms may be considered material. (A) Fraud or Deceit or Misrepresentation. If Operator engages in, or attempts to practice, any fraud or deceit upon City or makes a misrepresentation regarding information to City. (B) Insolvency or Bankruptcy. If Operator becomes insolvent, unable, or unwilling to pay its debts, files a bankruptcy petition or takes steps to liquidate its assets. M; (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 Operator's violation of this Section. 26. Notices All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first-class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Operator to City shall be addressed to City at: Public Works Director City of Newport Beach 100 Civic Center Drive Newport Beach, CA, 92658 Phone: 949-644-3311 Fax: 949-644-3318 All notices, demands, requests or approvals from City to Operator shall be addressed to Operator at: Attention: Chip Monaco, Regional Vice President CR&R Incorporated 11292 Western Avenue Stanton, California 90680 Phone: (714) 826-9049 Fax: (714) 890-6347 27. Compliance With All Laws Operator shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. Operator shall conform to all applicable provisions of State and Federal 23 law, including applicable provisions of the California Labor Code and the Federal Fair Labor Standards Act. In addition, all work performed by Operator shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 28. Waiver A waiver by either Party of any breach of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 29. Integrated Contract This Agreement represents the full and complete understanding of every kind or nature whatsoever between the Parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. All exhibits referenced in this Agreement are incorporated by reference. 30. Interpretation The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either Party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 31. Amendments This Agreement may be modified or amended only by written agreement between Operator and the City approved as to form by the City Attorney. 32. Severability If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 33. Controlling Law and Venue The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 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: Cie- Ala rkn C. Harp City Attorney ATTEST: 41��, .�� :•City Clerk CITY O BEACH, California al corporatin By: evin Muldoon ayor OPERATOR: &2 By O (Corporate Officer—) /— Title: Print Name ,l'liC1f� By: (Financial O icer) Title: Pmzssf (D""j i Print Name: 25 Exhibit "A" Transfer Station Legal Description & Depiction Legal Description All that certain real property situated in the County of Orange, State of California, described as follows. to -wit: Beginning at a point 30 feet South 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 1. Name and Street Address of Facility: fiy_of_Newport Beach Transfer Station 592 Superior Avenue Newport Beach, CA 92663 4.Specifications: 2. Name and Mailing Address of Operator: CR&R Incorporated 11292 Western Avenue Stanton, CA 90680 Facility Number: 30 -AB -0361 3. Name and Mailing Address of Owner: City of Newport Beach 3300 Newport Boulevard P.O. Box 1768 Newport Beach, CA 92658-8915 a. Permitted Operations: D Solid Waste Disposal Site D Transformation Facility Q 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 8.2nr c.Permitted Maximum Tonnage: d. Key Design Parameters (Detailed parameters are shown on site plans bearing EA and CalRecycle validations): Permitted Area (in acres) Total I Transfer/Processing 1.0 Design Capacity (cu.yds) 1 1 720<2t 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 refeiTed 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 I, 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 tiled 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 tiled with the County Clerk on May 8. 2003 to support the change in days and hours of operation. 14. Prohibitions: The facility is prohibited from receiving the following items or operational practices: • Acceptance of hazardous waste. radioactive waste. designated waste. non -hazardous waste requiring special handling. • Acceptance of liquid waste or semi-solid waste, containerized or not. • Acceptance of biosolids, sewage sludge, septic tank pumpings. clarifier waste. slurries. restaurant grease trap pumpings. • Acceptance of infectious or medical waste. • Acceptance of dead animals and ash. • Scavenging. open burning. public dumping. 15. The following documents describe and/or restrict the operation of this facility: Date Date Transfer/Processing Report 10/2018 Land Use and/or Conditional Use Permit NA NOE (Class I Categorical Exemption) 05/08/2003 Waste Discharge Requirements NOE (Class I Categorical Exemption) 10/09/1998 01/18/2002 31 ND (SCH No. 1990010863) 10/24,'1990 1 Resolution No. R8-2002-0010 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 e 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 Quarterly Qwaaerly Reporting Period Report Due January through May 1 March August 1 November April through June 1 February July through September October through December Page 3 of W orking Uratt 11 / 1'/ / 21 Facility Number: SOLID WASTE FACILITY PERMIT 30 -As -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 17(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.), fires, explosions, receipt or rejection of prohibited wastes. incidents of personal injury, vandalisms, accidents and/or property damage Each log entry shall be accompanied by a summary of the responses/corrective actions taken by the operator to mitigate any negative impacts of each occurrence. Days without incidents of SIU 0 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. c) 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. I) At all times, there shall be litter control personnel and/or other adequate measures to preclude litter from blowing and accumulating offsite. All litter shall be properly disposed in refuse receptacles and transported offsite within 48 hours. g) The operator shall notify the LEA by phone, fax_ or e-mail as soon as the maximum permitted daily tonnage has been exceeded. The operator shall provide the LEA in writing within 48 hours the reasons for the exceedance and the measures and procedures to prevent a recurrence. h) Personnel assigned to the facility shall be adequately trained in subjects pertinent to transfer station operations and maintenance, solid waste management, prohibited materials recognition and screening, use of mechanized equipment . and emergency procedures. A record of such training shall be maintained at the site and available for review by the LEA and other regulatory agencies upon request.