SEVENTH AMENDED AND RESTATED SOLID WASTE AGREEMENT
BETWEEN
CITY OF ANAHEIM
AND
REPUBLIC WASTE SERVICES OF SOUTHERN CALIFORNIA, LLC,
DBA ANAHEIM DISPOSAL
FOR
SOLID WASTE MANAGEMENT SERVICES
* * *
June 1, 2023
June 1, 2023 i City of Anaheim
AGREEMENT
BETWEEN
CITY OF ANAHEIM
AND
REPUBLIC WASTE SERVICES OF SOUTHERN CALIFORNIA, LLC, DBA ANAHEIM DISPOSAL
FOR
SOLID WASTE HANDLING SERVICES
TABLE OF CONTENTS
SECTION 1. RECITALS .........................................................................................................................5 SECTION 2. DEFINITIONS ...................................................................................................................6
2.1 AB 341 .....................................................................................................................................6
2.2 AB 827 .....................................................................................................................................6
2.3 AB 939 .....................................................................................................................................6
2.4 AB 1594 ...................................................................................................................................6
2.5 AB 1826 ...................................................................................................................................6
2.6 Affiliate ....................................................................................................................................6
2.7 Agreement ................................................................................................................................7
2.8 Agreement Year .......................................................................................................................7
2.9 Alternative Daily Cover (ADC) ...............................................................................................7
2.10 Alternative Facility(ies) ............................................................................................................7
2.11 Alternative Intermediate Cover (AIC) .....................................................................................7
2.12 Animal Waste ...........................................................................................................................7
2.13 Applicable Law ........................................................................................................................7
2.14 Approved C&D Processing Facility .........................................................................................8
2.15 Approved Facility(ies) ..............................................................................................................8
2.16 Approved Organic Waste Processing Facility ..........................................................................8
2.17 Approved Source Separated Recyclable Materials Processing Facility ...................................8
2.18 Approved Transfer Facility ......................................................................................................8
2.19 Back-Haul .................................................................................................................................8
2.20 Billing Statement ......................................................................................................................8
2.21 Bin ............................................................................................................................................8
2.22 Black Container ........................................................................................................................8
2.23 Black Container Waste .............................................................................................................8
2.24 Blue Container ..........................................................................................................................9
2.25 Brown Container ......................................................................................................................9
2.26 Bulky Item(s) ............................................................................................................................9
2.27 Business Day ............................................................................................................................9
2.28 California Code of Regulations (CCR) ....................................................................................9
2.29 CalRecycle................................................................................................................................9
2.30 Cart .........................................................................................................................................10
June 1, 2023 ii City of Anaheim
2.31 Change in Law........................................................................................................................10
2.32 City .........................................................................................................................................10
2.33 City Solid Waste .....................................................................................................................11
2.34 Collect/Collection/Collected/Collecting ................................................................................11
2.35 Collection Area.......................................................................................................................11
2.36 Commercial ............................................................................................................................11
2.37 Commercial Edible Food Generators .....................................................................................11
2.38 Commercial Premises .............................................................................................................11
2.39 Compost..................................................................................................................................11
2.40 Compostable Plastics ..............................................................................................................11
2.41 Construction and Demolition Waste ......................................................................................11
2.42 Container ................................................................................................................................12
2.43 County Agreement .................................................................................................................12
2.44 CPI or Consumer Price Index .................................................................................................12
2.45 Customer ................................................................................................................................12
2.46 Designated Disposal Facility ..................................................................................................12
2.47 Designated Facility .................................................................................................................12
2.48 Designated Waste ...................................................................................................................12
2.49 Discarded Materials ................................................................................................................12
2.50 Disposal ..................................................................................................................................13
2.51 Divert/Diversion .....................................................................................................................13
2.52 Dwelling Unit .........................................................................................................................13
2.53 Edible Food ............................................................................................................................13
2.54 Effective Date .........................................................................................................................13
2.55 Electronic Waste or E-Waste .................................................................................................13
2.56 Environmental Laws...............................................................................................................14
2.57 Excluded Waste ......................................................................................................................14
2.58 Exhibit ....................................................................................................................................14
2.59 Facility(ies) .............................................................................................................................14
2.60 Food Recovery .......................................................................................................................14
2.61 Food Recovery Organization ..................................................................................................14
2.62 Food Recovery Service ..........................................................................................................15
2.63 Food Scraps ............................................................................................................................15
2.64 Food-Soiled Paper ..................................................................................................................15
2.65 Food Waste .............................................................................................................................15
2.66 Franchise ................................................................................................................................15
2.67 Generator ................................................................................................................................15
2.68 Green Container .....................................................................................................................15
2.69 Hazardous Waste ....................................................................................................................15
2.70 Incompatible Materials ...........................................................................................................16
2.71 Large Event ............................................................................................................................16
2.72 Large Venue ...........................................................................................................................16
2.73 Materials Recovery Facility (“MRF”) ....................................................................................16
2.74 Manager ..................................................................................................................................16
2.75 Mixed-Use Premises...............................................................................................................16
2.76 Mixed-Use Premises Compactor Service ...............................................................................16
June 1, 2023 iii City of Anaheim
2.77 Mulch......................................................................................................................................17
2.78 Multiple-Unit Dwelling ..........................................................................................................17
2.79 Multiple-Unit Dwelling Premises Compactor Service ...........................................................17
2.80 Municipal Code ......................................................................................................................17
2.81 Non-Compostable Paper.........................................................................................................17
2.82 Non-Organic Recyclables .......................................................................................................17
2.83 Organic Materials ...................................................................................................................18
2.84 Organic Waste ........................................................................................................................18
2.85 Overdue Rate ..........................................................................................................................18
2.86 Party or Parties .......................................................................................................................18
2.88 Premises..................................................................................................................................18
2.89 Process, Processed, or Processing ..........................................................................................18
2.90 Processing Facility(ies) ..........................................................................................................18
2.91 Prohibited Container Contaminants .......................................................................................19
2.92 Putrescible Waste ...................................................................................................................19
2.93 Recycle or Recycling ..............................................................................................................19
2.94 Recyclable Material or Recyclables .......................................................................................19
2.95 Refuse .....................................................................................................................................19
2.96 Renewable Natural Gas (RNG) ..............................................................................................20
2.97 Residential ..............................................................................................................................20
2.98 Residential Premises...............................................................................................................20
2.99 Roll-off Box ...........................................................................................................................20
2.100 Sanitation Fund.......................................................................................................................20
2.101 SB 1383 ..................................................................................................................................20
2.102 Self-Hauler .............................................................................................................................20
2.103 Service Fee .............................................................................................................................20
2.104 Sharps .....................................................................................................................................21
2.105 Single Family Dwelling..........................................................................................................21
2.106 Solid Waste.............................................................................................................................21
2.107 Solid Waste Handling Services ..............................................................................................21
2.108 Source Separated ....................................................................................................................21
2.109 Source Separated Blue Container Organic Waste ..................................................................22
2.110 Source Separated Green Container Organic Waste ................................................................22
2.111 Source Separated Recyclable Materials .................................................................................22
2.112 Special Services ......................................................................................................................22
2.113 Special Wastes ........................................................................................................................22
2.114 Split-Container .......................................................................................................................22
2.115 State ........................................................................................................................................22
2.116 Temporary Service .................................................................................................................22
2.117 Term .......................................................................................................................................23
2.118 Tier One Commercial Edible Food Generators ......................................................................23
2.119 Tier Two Commercial Edible Food Generators .....................................................................23
2.120 Tip ..........................................................................................................................................23
2.121 Tip Frequency.........................................................................................................................24
2.122 Transfer ..................................................................................................................................24
2.123 Transformation .......................................................................................................................24
June 1, 2023 iv City of Anaheim
2.124 Transportation, Transport, or Transporting ............................................................................24
2.125 Universal Waste .....................................................................................................................24
2.126 Yard Waste .............................................................................................................................24 SECTION 3. GRANT OF EXCLUSIVE FRANCHISE TO PROVIDE SOLID WASTE HANDLING SERVICES TO ALL RESIDENTIAL AND COMMERCIAL PREMISES ...............25
3.1 Scope of Franchise .................................................................................................................25
3.2 Matters Excluded from Scope of Franchise ...........................................................................25 SECTION 4. ENFORCEMENT OF EXCLUSIVITY .........................................................................28 SECTION 5. ACCEPTANCE OF AGREEMENT; WAIVER OF TERMS .....................................29 SECTION 6. TERM................................................................................................................................30
6.1 Initial Term .............................................................................................................................30
6.2 Extension ................................................................................................................................30
6.3 Right of City or Republic to Avoid Automatic Extension .....................................................30 SECTION 7. CONDITIONS TO EFFECTIVENESS OF AGREEMENT .......................................31
7.1 Accuracy of Representation ...................................................................................................31
7.2 Absence of Litigation .............................................................................................................31
7.3 Furnishing of Insurance, Surety, and Corporate Guarantee ...................................................31
7.4 Effectiveness of City Council Actions ...................................................................................31
7.5 Payment of Fees and Costs .....................................................................................................31 SECTION 8. SOLID WASTE HANDLING SERVICES PROVIDED BY REPUBLIC .................32
8.1 General ...................................................................................................................................32
8.2 Residential Solid Waste Handling Service .............................................................................35
8.3 Commercial Solid Waste Handling Services .........................................................................39
8.4 Other Collection Programs .....................................................................................................41
8.5 Temporary Services ................................................................................................................41
8.6 Multiple-Unit Container Service Adjustment Procedures......................................................43
8.7 Commercial Service Adjustment Procedures and Commercial Overflow Charges ...............43
8.8 Recycling Obligations ............................................................................................................45
8.9 Diversion Obligations, Guarantee, and Indemnification ........................................................47
8.10 Additional Services ................................................................................................................51
8.11 Special Services ......................................................................................................................55
8.12 Processing and Performance Guarantees ...............................................................................55
8.13 Hazardous Waste ....................................................................................................................57
8.14 Code Enforcement, National Pollutant Discharge Elimination System (NPDES) Compliance, CalRecycle Assistance ...........................................................................................................58
8.15 Contamination Monitoring .....................................................................................................58
8.16 Inspection and Enforcement ...................................................................................................62
8.17 Universal Enrollment Monitoring ..........................................................................................64 SECTION 9. MINIMUM STANDARDS FOR REPUBLIC’S SOLID WASTE HANDLING SERVICE COLLECTION VEHICLES ................................................................................................65
9.1 General, Purchase and Ownership of Vehicles ......................................................................65
June 1, 2023 v City of Anaheim
9.2 Air Quality/Fuel Requirements ..............................................................................................65
9.3 Specific Requirements ............................................................................................................65
9.4 Costs of Vehicle Operation ....................................................................................................67
9.5 City Inspection .......................................................................................................................67
9.6 Correction of Defects and Removal of Vehicles from Use within City .................................68
9.7 Residential Cart Collection Vehicle Replacement .................................................................68 SECTION 10. REPUBLIC’S SOLID WASTE HANDLING SERVICE PERSONNEL ..................69
10.1 Uniforms .................................................................................................................................69
10.2 Identification of Employees ...................................................................................................69
10.3 Employee List.........................................................................................................................69
10.4 Driver’s License .....................................................................................................................69
10.5 Hiring of Illegal Workers Prohibited ......................................................................................69
10.6 Discontinued Use of Unsatisfactory Employees ....................................................................69
10.7 Training and Legal Compliance .............................................................................................69
10.8 Customer Service ...................................................................................................................70
10.9 Education and Public Awareness ...........................................................................................72 SECTION 11. ANNUAL CERTIFICATIONS.....................................................................................78
11.1 Certifications To Be Provided ................................................................................................78
11.2 Supporting Documentation for Certifications ........................................................................80 SECTION 12. CITY FEES AND SERVICES ......................................................................................81
12.1 Host Fee ..................................................................................................................................81
12.2 [Section Reserved] .................................................................................................................82
12.3 Services at City Yards ............................................................................................................82
12.4 City-Sponsored Event Collection ...........................................................................................82
12.5 Neighborhood Cleanup Events ...............................................................................................82
12.6 Bus Stop Containers and Collection .......................................................................................83
12.7 Emergency Service .................................................................................................................83 SECTION 13. REPUBLIC’S COMPENSATION ...............................................................................84
13.1 Service Fee .............................................................................................................................84
13.2 Republic-Billed Services ........................................................................................................88
13.3 Rate Adjustment Methodology ..............................................................................................88
13.4 Other Adjustments ..................................................................................................................90
13.5 Collection, Processing, Transfer and Landfill Fee Calculations ............................................90
13.6 Submittal of Rate Adjustment Request ..................................................................................90
13.7 Billing of the Monthly Service Fee ........................................................................................91
13.8 Republic-Billed Customer Collection Procedures .................................................................92
13.9 No Authorization to Charge Customers; Exceptions .............................................................92
13.10 Republic Petition for Adjustment to Fees ..............................................................................92
13.11 City Request for Reduction in Service Fees ...........................................................................92
13.12 Lowest Rate Guarantee ..........................................................................................................93
13.13 Republic’s Assistance with City Billing ................................................................................93
13.14 Annual Service Fee Estimate .................................................................................................93
13.15 Computer System Compatibility ............................................................................................93
June 1, 2023 vi City of Anaheim
SECTION 14. FAITHFUL PERFORMANCE ....................................................................................94 SECTION 15. INSURANCE COVERAGE ..........................................................................................95
15.1 Minimum Scope of Insurance ................................................................................................95
15.2 Minimum Limits of Insurance ................................................................................................95
15.3 Other Insurance Provisions ....................................................................................................95
15.4 Acceptability of Insurers ........................................................................................................96
15.5 Verification of Coverage ........................................................................................................96
15.6 Loss or Reduction in Insurance ..............................................................................................96 SECTION 16. ASSIGNMENT, SUBLETTING, AND TRANSFER; REQUIREMENTS AND LIMITATIONS ........................................................................................................................................97
16.1 General ...................................................................................................................................97
16.2 Assignment to be Broadly Interpreted ....................................................................................97
16.3 Nature of Agreement – Personal to Republic .........................................................................97
16.4 Procedure for Consideration of Assignment ..........................................................................97
16.5 Subcontractors ........................................................................................................................98 SECTION 17. REVIEW OF SERVICES AND PERFORMANCE ...................................................99
17.1 Performance Review ..............................................................................................................99
17.2 Performance Satisfaction Survey .........................................................................................100 SECTION 18. CITY'S REMEDIES; DEFAULT AND TERMINATION ......................................101
18.1 Notice of Default ..................................................................................................................101
18.2 Failure to Cure ......................................................................................................................101
18.3 Review by City Manager ......................................................................................................101
18.4 City Council Review ............................................................................................................101
18.5 Performance During Reviews ..............................................................................................101
18.6 Termination without Right to Cure ......................................................................................101
18.7 Liquidated Damages .............................................................................................................103 SECTION 19. CITY’S ADDITIONAL REMEDIES FOR BREACH BY REPUBLIC .................109 SECTION 20. REPUBLIC'S REMEDIES FOR BREACH BY CITY; ADMINISTRATIVE HEARING ..............................................................................................................................................110
20.1 Administrative Hearing ........................................................................................................110
20.2 Other Remedies; Claims .......................................................................................................110
20.3 Actions for Damages ............................................................................................................110
20.4 Limited Recourse to the City................................................................................................110 SECTION 21. RIGHTS OF CITY TO PERFORM DURING EMERGENCY ..............................111
21.1 Provision of Service .............................................................................................................111
21.2 Possession of Equipment ......................................................................................................111
21.3 Exclusions from Right to Possession of Equipment without Compensation .......................111
21.4 City's Exercise of Rights ......................................................................................................111 SECTION 22. PRIVACY .....................................................................................................................112 SECTION 23. REPORTS AND ADVERSE INFORMATION ........................................................113
June 1, 2023 vii City of Anaheim
23.1 Report Formats and Schedule...............................................................................................113
23.2 Monthly Reports ...................................................................................................................113
23.3 Annual Reports .....................................................................................................................117
23.4 Adverse Information.............................................................................................................121
23.5 Disaster Plan .........................................................................................................................122
23.6 Failure to Report ...................................................................................................................122 SECTION 24. IDENTIFICATION OF REPUBLIC .........................................................................123 SECTION 25. CITY'S FLOW CONTROL OPTION/COUNTY AGREEMENT .........................124
25.1 Flow Control Option ............................................................................................................124
25.2 County Agreement ...............................................................................................................124
25.3 Residential Organic Materials Diversion Program ..............................................................125 SECTION 26. INDEMNIFICATION .................................................................................................126
26.1 General .................................................................................................................................126
26.2 Hazardous Contaminant, Substances, or Waste Indemnification .........................................127
26.3 Indemnification For Land Application and/or Other Uses of Compost, Compostable Materials, and Anaerobic Digestate. ....................................................................................129 SECTION 27. REPUBLIC'S BOOKS AND RECORDS; AUDITS .................................................131
27.1 Maintenance and Inspection of Records ..............................................................................131
27.2 CERCLA Defense Records ..................................................................................................132
27.3 Periodic Examination of Records .........................................................................................132
27.4 Route Audit ..........................................................................................................................132
27.5 Audited Financial Statements ...............................................................................................133 SECTION 28. TRANSITION OBLIGATIONS .................................................................................134 SECTION 29. EXCUSE FROM PERFORMANCE..........................................................................135
29.1 Force Majeure.......................................................................................................................135
29.2 Labor Unrest .........................................................................................................................135
29.3 Procedures In Event of Excused Performance .....................................................................136 SECTION 30. GENERAL PROVISIONS ..........................................................................................137
30.1 Independent Contractor ........................................................................................................137
30.2 Pavement Damage ................................................................................................................137
30.3 Property Damage ..................................................................................................................137
30.4 Right of Entry .......................................................................................................................137
30.5 Law to Govern; Venue .........................................................................................................137
30.6 Amendment ..........................................................................................................................137
30.7 Notices ..................................................................................................................................138
30.8 Guarantee of Republic's Performance ..................................................................................138
30.9 Savings Clause .....................................................................................................................138
30.10 Exhibits Incorporated ...........................................................................................................138
30.11 Joint Drafting ........................................................................................................................138
30.12 City's Authorized Agent .......................................................................................................138
30.13 Integrated Agreement ...........................................................................................................139
June 1, 2023 viii City of Anaheim
30.14 Section Headings ..................................................................................................................139
30.15 Compliance with Law ..........................................................................................................139
EXHIBITS
A. Maximum Rate Schedule for Solid Waste Handling Services B. Container Specifications
C. Corporate Guaranty
D. Waste Screening Procedure
E. Processing, Transfer, and Disposal Service Facility Standards F. Collection System Specifications
G. Public Education and Outreach Plan
H. Republic Implementation Plan
I. Documentation of Single Family Organic Materials Rate per Ton
June 1, 2023 1 City of Anaheim
AGREEMENT
This Amended and Restated Solid Waste Agreement ("Agreement") is entered into to be effective as of the date on which the ordinance granting this Agreement takes effect, by and between the City of Anaheim, a charter city and a municipal corporation organized under the laws of the State of California (hereafter "City"), and Republic Waste Services of Southern California, LLC, a Delaware Limited Liability Company dba Anaheim Disposal (“Republic”), which is a wholly-owned subsidiary of Republic Services, Inc., a Delaware Corporation, (collectively, the "Parties") , to provide an exclusive franchise for Solid Waste Handling Services within the City.
RECITALS:
A. The City is empowered under S ection 7 of Article XI of the California Constitution to make and enforce, within its limits, all police and sanitary ordinances and regulations not in conflict with general laws.
B. The City, in accor dance with S ection 5 of Article XI of the California Constitution and the City Charter, may make and enforce all ordinances and regulations in respect to municipal affairs.
C. In the exercise of it its police powers, the City may determine the best means in i ts possession to protect the public health and safety.
D. Under Section 40059 of the California Public Resources Code, the City is authorized to determine aspects of Solid Waste handling which are of local concern and the means by which such services are to be rendered under terms and conditions prescribed by the City Council by resolution or ordinance, including the provision of Solid Waste Collection, Processing, and Disposal services on an exclusive or non-exclusive basis and with or without competitive bidding.
E. Under Section 40057 of the California Public Resources Code, the City is required to provide for Solid Waste Handling Services, including the Collection, Transfer, and Disposal of Solid Waste.
GRANT OF FRANCHISE
The City Council determined, in granting this F ranchise, that the public health, safety , and well-being made it necessary that this Franchise be awarded to Republic Waste Services of Southern California, LLC on an exclusive basis without competitive bidding in order to provide Solid W aste Handling Services to its citizens in the manner determined by the City Council to best protect the public health and safety and achieve necessary levels of Recycling and Diversion.
The City Council has further determined, in granting this Franchise, that the inclusion in Section 25 hereof of provisions giving the City the right to direct the site at which Solid Waste and Processing residues shall be Disposed decreases potential liability risks, aids in ensuring the environmentally sound disposition of Solid Waste, and generally assists in ensuring the efficient performance of the City’s traditional municipal function of waste management. Further, since the City is responsible, pursuant to Section 13.1 here, for reimbursement to Republic of all t ipping fees paid for Processing or Disposal of City Solid Waste, protection of public funds requires that the City have the right, as a market participant, to determine which facility’s or facilities’ services shall be used to Process or Dispose of City Solid Waste.
June 1, 2023 2 City of Anaheim
The Taormina family has supplied S olid Waste Collection, Transportation, handling, Recycling, Processing, and Disposal services to the City since 1948.
The City wished to restate and modify the basic agreements under which such services have been provided and to establish and regulate such services on a franchise basis.
Section 1400 of the City Charter provides that any P erson or corporation furnishing the City or its inhabitants with any public utility or service may be required by ordinance to have a valid and existing franchise therefore.
Section 1400 of the City Charter further provides that the City Council is empowered to grant such franchise to any Person or corporation and to prescribe the terms and conditions of such grants.
The City Council passed a resolution on June 21, 1994, declaring its intent to grant the franchise granted hereby, stating the name of the proposed grantee, the character of the franchise, the terms and conditions upon which it was proposed to be granted, and the date, hour, and place for a public hearing thereon.
The City Clerk published such resolution on June 30, 1994, within fifteen (15) days of the passage thereof, in the official newspaper of the City.
The City Council conducted a public hearing on the matter on July 19, 1994, not less than twenty (20) nor more than sixty (60) days after passage of such resolution.
The City Council adopted ordinance number 5434 on July 19, 1994, containing and granting this Franchise on the same terms and conditions specified in its resolution of intention.
No referendum of the people was called or conducted with respect to this Franchise granted hereby.
An executed copy of this Agreement, constituting written acceptance of this Franchise by Taormina Industries, LLC, was filed by it with the City Clerk within ten (10) days of the adoption of such ordinance granting this Franchise.
APPROVAL OF TRANSFER OF CONTROL
Pursuant to the terms of this Franchise, Taormina Industries, LLC requested that the City approve the transfer of ownership and control of Taormina Industries, LLC to Republic Services, Inc. and consent to the transfer of the Franchise thereto.
Based on the exceptionally high quality of service provided by Taormina Industries, Inc. to the City in the performance of its obligations under this Franchise and throughout its history of providing such services to the City, and the assurance from Taormina Industries, LLC management person nel that Republic will continue to provide the City with the same level of service that the City has previously experienced, the City Council, on February 25, 1997, approved the change in ownership and control of Taormina Industries, LLC to Republic Services, Inc. and consented to the transfer of this Franchise to Republic.
SECOND AMENDMENT TO FRANCHISE
The City determined that Yard Waste Collection, Discarded Materials (previously bulk Collection waste) Processing, and certain other enhanced levels of S olid Waste management services would be in the best
June 1, 2023 3 City of Anaheim
interests of the City. Republic has been providing such services and the City and Republic previously agreed to amend and restate the Franchise to provide for such additional services.
An Ordinance authorizing execution and delivery of the Second Amended and Restated Franchise, as amended and restated, was duly adopted by the City Council on March 28, 2000.
THIRD AMENDMENT TO FRANCHISE
The City and Republic agreed to amend this Franchise Agreement to reflect certain modifications or clarifications related to Republic’s operations and performance of services, as described herein.
An Ordinance authorizing execution and delivery of the Third Amended and Restated Franchise, as further amended and restated, was duly adopted by the City Council on October 29, 2002.
FOURTH AMENDMENT TO FRANCHISE
The City and Republic agreed to amend this Franchise A greement to reflect certain modifications or clarifications related to Republic’s operations and performance of services, as described herein.
An Ordinance authorizing execution and delivery of the Fourth Amended and Restated Franchise Agreement, as further amended and restated, was duly adopted by the City Council on February 15, 2005.
FIFTH AMENDMENT TO FRANCHISE
The City and Republic agreed to amend th e Franchise Agreement to reflect certain modifications or clarifications related to Republic’s management, as described herein.
An Ordinance authorizing execution and delivery of the Fifth Amended and Restated Franchise Agreement, as further amended and restated, was duly adopted by the City Council on September 26, 2006.
SIXTH AMENDMENT TO FRANCHISE
The exe cution and delivery of this Franchise, as amended and restated, by Republic has been duly authorized by all necessary corporate actions.
An Ordinance authorizing execution and delivery of the Sixth Amended and Restated Franchise Agreement, as further amended and restated, was duly adopted by the City Council on March 8, 2012.
SEVENTH AMENDMENT TO FRANCHISE
The execution and delivery of this Franchise, as amended and restated, by Republic has been duly authorized by all necessary corporate actions.
The City therefore grants Republic the amended and restated Franchise described herein on the terms and conditions established hereby.
A. The State of California has found and declared that the amount of Solid Waste generated in California, coupled with diminishing Disposal capacity and potential adverse environmental impacts from landfilling and the need to conserve natural resources, have created an urgent need for S tate
June 1, 2023 4 City of Anaheim
and local agencies to enact and implement an aggressive integrated waste management progr am.
The State has, through enactment of AB 939 and subsequent related legislation including, but not limited to: the Jobs and Recycling Act of 2011 (AB 341), the Event and Venue Recycling Act of 2004 (AB 2176), SB 1016 (Chapter 343, Statutes of 2008 [Wiggi ns, SB 1016]), the Mandatory Commercial Organics Recycling Act of 2014 (AB 1826), and the Short -Lived Climate Pollutants Bill of 2016 (SB 1383), directed the responsible S tate agency, and all local agencies, to promote a reduction in landfill Disposal and to maximize the use of feasible waste reduction, re-use, Recycling, and composting options in order to reduce the amount of material that must be disposed.
B. SB 1383 establishes regulatory requirements for jurisdictions, Generators, haulers, Solid Waste Facilities, and other entities to support achievement of State-wide Organic Waste Disposal reduction targets.
C. SB 1383 requires jurisdictions to implement Collection programs, meet Processing Facility requirements, conduct contamination monitoring, provide education, maintain records, submit reports, monitor compliance, conduct enforcement, and fulfill other requirements; and, the City has chosen to delegate some of its responsibilities to Republic , acting as the City’s designee, through this Agreement.
An Ordinance authorizing execution and delivery of the Seventh Amended and Restated Franchise Agreement, as further amended and restated, was duly adopted by the City Council on the [ ] day of May 2023.
COVENANTS:
Based upon the foregoing Recitals and for good and valuable consideration, the receipt and sufficiency of which is acknowledged by each of the Parties, City, and Republic hereby agree as follows:
June 1, 2023 5 City of Anaheim
SECTION 1. RECITALS
The Parties acknowledge the above Recitals are true and correct and incorporate them herein as if they were fully restated.
June 1, 2023 6 City of Anaheim
SECTION 2. DEFINITIONS
Whenever any term used in this Agreement has been defined by the California Public Resources Code, the definition of such term set forth therein shall apply unless the term is otherwise defined in this Agreement. Except as provided in Section 1, words beginning with lower case letters are being used with their common ordinary meanings, not as defined terms. Otherwise, the following capitalized words and terms shall have the following meanings:
2.1 AB 341
“AB 341” means the Assembly Bill approved by the Gove rnor of the State of California on October 5, 2011, which amended Sections 41730, 41731, 41734, 41735, 41736, 41800, 42926, 44004, and 50001 of, and added Sections 40004, 41734.5, and 41780.01 and Chapter 12.8 (commencing with Section 42649) to Part 3 of D ivision 30 of, and added and repealed Section 41780.02 of, the Public Resources Code, relating to Solid Waste, as amended, supplemented, superseded, and replaced from time to time.
2.2 AB 827
“AB 827” means the Assembly Bill approved by the Governor of the State of California on October 2, 2019, which amended Sections 42649.2, 42649.2, 42649.8, and 42649.81 of the Public Resources Code, relating to Solid Waste, as amended, supplemented, superseded, and replaced from time to time.
2.3 AB 939
“AB 939” shall mean the California Integrated Waste Management Act of 1989, currently codified as California Public Resources Code Section 40000 et seq., as it may be amended, supplemented, superseded, and replaced from time to time.
2.4 AB 1594
“AB 1594” means the Assembly Bill approved by the Governor of the State of California on September 28, 2014, which amended Sections 40507 and 41781.3 of the Public Resources Code, relating to Solid Waste, as amended, supplemented, superseded, and replaced from time to time.
2.5 AB 1826
“AB 1826” means the Organic Waste Recycling Act of 2014 (Chapter 727, Statutes of 2014 modifying Division 30 of the California Public Resources Code), also commonly referred to as “AB 1826,” as amended, supplemented, superseded, and replaced from time to time.
2.6 Affiliate
“Affiliate” means a business in which Republic owns a direct or indirect ownership interest, a business (including corporations, limited and general partnerships, and sole proprietorships) which has a direct or indirect ownership interest in Republic, and/or a business which is also owned, controlled or managed by any business or individual which has a direct or indirect ownership interest in Republic. For purposes of determining whether an indirect ownership interest exists, the constructive ownership provisions of Section 318(a) of the Internal Revenue Code of 1986, as in effect on the date of this Agreement, shall apply; provided, however, that (i) "ten percent (10%)" shall be substituted for "fifty percent (50%)" in Section 318(a)(2)(C) and in Section 318(a)(3)(C) thereof; and, (ii) Section 318(a)(5)(C) shall be
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disregarded. For purposes of determining ownership under this paragraph and constructive or indirect ownership under Section 318(a), ownership interest of less than ten percent (10%) shall be disregarded, and percentage interests shall be determined on the basis of the percentage of voting interest or value which the ownership interest represents, whichever is greater.
2.7 Agreement
“Agreement” means this Franchise Agreement between the City and Republic for the Collection, Transportation, Recycling, Processing, and Disposal of Recyclable Materials, Organic Materials, and Solid Waste, and other services related to meeting the goals and requirements of Applicable Law, such as AB 939, AB 341, AB 1826, and SB 1383 , including all E xhibits and attachments, and any amendments thereto.
2.8 Agreement Year
“Agreement Year” shall mean July 1 to June 30 each year, with the exception that the first Agreement Year shall be from the execution of the Agreement to June 30, 2023.
2.9 Alternative Daily Cover (ADC)
“Alternative Da ily Cover” or “ADC” has the same meaning as in Section 20690 of Title 27 of the California Code of Regulations.
2.10 Alternative Facility(ies)
“Alternative Facility” means any Facility other than Approved Facilities approved by City for temporary use.
2.11 Alternative Intermediate Cover (AIC)
“Alternative Intermediate Cover” or “AIC” has the same meaning as in Section 20700 of Title 27 of the California Code of Regulations.
2.12 Animal Waste
“Animal Waste” shall mean animal carcasses, dead animals, and/o r parts or portions of dead animals.
Animal Waste shall not include manure.
2.13 Applicable Law
“Applicable Law” means any adopted law, rule, regulation, permit, action, determination , or final order of any governmental body having jurisdiction, applicable to the Collection services; the operating assets; the sighting, design, acquisition, permitting, construction, equipment, financing, ownership, possession, shakedown, testing, operation or maintenance of any of the operating assets; or, any other transition or matter contemplated hereby (including any of the foregoing which concern health, safety, fire, environmental protection, labor relations, mitigation monitoring plans, building codes, non- discrimination, and the payment of minimum wages, and further including the Anaheim City Charter, the Municipal Code and the County Integrated Waste Management Plan.)
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2.14 Approved C&D Processing Facility
“Approved C&D Processing Facility” means the C&D Materials Processing Facility identified in Exhibit E.
2.15 Approved Facility(ies)
“Approved Facility(ies)” means any one of or any combination of the: Approved C&D Processing Facility; Approved Organic Waste Processing Facility; Approved Source Separated Recyclable Materials Processing Facility; and, Approved Transfer Facility.
2.16 Approved Organic Waste Processing Facility
“Approved Organic Waste Processing Facility” means the Approved Organic Waste Processing Facility identified in Exhibit E.
2.17 Approved Source Separated Recyclable Materials Processing Facility “Approved Source Separated Recyclable Materials Processing Facility” means the Approved Recyclable Materials Processing Facility identified in Exhibit E.
2.18 Approved Transfer Facility
“Approved Transfer Facility” means the Approved Transfer Facility identified in Exhibit E.
2.19 Back-Haul
“Back-Haul” means generating and Transporting Recyclable Materials and/or Organic Waste to a destination owned and operated by the Generator using the Generator’s own employees and equipment, or as otherwise defined in 14 CCR Section 18982(a)(66)(A).
2.20 Billing Statement
“Billing Statement” has the meaning specified in Section 13.7.1 hereof.
2.21 Bin
“Bin” shall mean a Container with a capacity of at least one (1), and less than ten (10), cubic yards. dumpsters, Bins with attached compacting equipment (m ini-packers), and other similar Discarded Materials Collection Containers are other names for, and types of, Bins. Bins include Split-Containers.
2.22 Black Container
“Black Container” has the same meaning as in 14 CCR Section 18982(a) (28) and shall be used for the purpose of storage and Collection of Black Container Waste, subsets of Solid Waste. For the purposes of this Agreement, Black Containers may be gray or black, as specified in 14 CCR Section 18982(a)(28).
See Exhibit B for additional Container specifications.
2.23 Black Container Waste
“Black Container Waste” means Discarded Materials or Refuse that is Collected in a Black Container that is part of a three -Container Discarded Materials Collection service that prohibits the placement of Prohibited Container Contaminants in the Black Container as specified in 14 CCR Sections 18984.1(a)
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and (b), or as otherwise defined in 14 CCR Section 17402(a)(6.6). For the purposes of this Agreement, Black Container Waste includes carpet and textiles.
2.24 Blue Container
“Blue Container” has the same meaning as in 14 CCR Section 18982(a)(5) and shall be used for the purpose of storage and Collection of Source Separated Recyclable Materials. See Exhibit B for additional Container specifications.
2.25 Brown Container
“Brown Container” has the same meaning as in 14 CCR Section 18982(a)(5.5) and shall be used for the purpose of storage and Collection of Source Separated Food Waste. See Exhibit B for additional Container specifications.
2.26 Bulky Item(s)
“Bulky Items” means Discarded Materials that cannot and/or would not typically be accommodated within a standard Container including specifically: furniture (including chairs, sofas, mattresses, and rugs); appliances (including refrigerators with and without Freon, ranges, washers, dryers, water heaters, dishwashers, plumbing, small household appliances, and other similar items, commonly known as "white goods"); Residential wastes (including wood waste, tree branches, scrap wood, in the aggregate not exceeding one (1) cubic yard per Collection, and Yard Waste bundles beyond the quantities to be Collected per Section 8.2.6 or that can fit in the Cart for weekly Collection); and, clothing. For purposes of this Agreement, and notwithstanding any provision hereof to the contrary, Bulky Items shall specifical ly include items commonly known in the waste industry as "brown goods," " E-Waste," and " Universal Waste" (including, without limitation all types of E lectronic Waste, stereos, televisions, computers and monitors, cellular phones, VCRs, microwaves, and other similar type of equipment and products). Bulky Items do not include car bodies, Construction and Demolition Waste, or (with the exception of appliances/white goods described above) items that cannot reasonably be moved with equipment of the type which, pursuant to industry standards, would normally be carried in a truck Collecting Bulky Items.
In the event a question arises as to whether a specific item or category of items meets the definition of Bulky Items, City shall be responsible to determine whether said definition shall apply, which determination shall be final and binding on the Parties.
2.27 Business Day
“Business Day” means each calendar day, excluding Saturdays, Sundays, and holidays.
2.28 California Code of Regulations (CCR)
“California Code of Regulations” or “CCR” means the State of California Code of Regulations. CCR references in this Agreement are preceded with a number that refers to the relevant Title of the CCR (e.g., “14 CCR” refers to Title 14 of CCR).
2.29 CalRecycle
“CalRecycle” means the State of California Department of Resources Recycling and Recovery, the department within the State Natural Resources Agency responsible for the administration of the Integrated Waste Management Act of 1989, California Public Resources Code Section 40000 et seq. ("AB 939"), or
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any successor department or agency created or designated for such purpose. Pursuant to AB 939, the term "Board" when used therein means CalRecycle or the Director of CalRecycle, as appropriate.
2.30 Cart
“Cart” means a plastic Container, ranging from approximately twenty (20) to one hundred and ten (110) gallons in size, approved by the City, with a hinged lid and wheels , serviced by an automated or semi - automated process, as opposed to a manual process of lifting and dumping.
2.31 Change in Law
“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, management, operation or maintenance of the operating assets, or other matters to which Applicable Law applies:
The enactment, adoption, prom ulgation, issuance, modification, or written change in administrative or judicial interpretation of any Applicable Law on or after the Effective Date of the Agreement; The imposition or assessment of any new per-ton fees imposed by local, State, or federal agencies on the processing at the Approved or Designated Facilities, or for the subsequent Disposal, of tonnage Collected within the City pursuant to this Agreement;
The order or judgment of any governmental body, on or after the Effective Date, to the extent such order or judgment is not the result of willful or negligent action, error or omission or lack of reasonable diligence of the City or of Republic, 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
The denial of an application for , delay in the review, issuance or renewal of, or suspension, termination, interruption, or imposition of a new or more stringent condition in connection with the issuance, renewal, or failure of issuance or renewal on or after the Effective 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 City or of Republic, 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.
2.32 City
“City” means the City of Anaheim, a California charter city and municipal corporation , and shall mean the territorial boundaries of the City, together with all amendments and changes thereto, which boundaries are depicted on maps, incorporated herein by reference, that are kept on file in the office of the City Clerk of the City of Anaheim, and which are from time to time amended to reflect changes.
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2.33 City Solid Waste
“City Solid Waste” means any Solid Waste which was originally discarded by the first Generator thereof, prior to any Processing, within the geographical limits of the City.
2.34 Collect/Collection/Collected/Collecting
“Collect,” “Collection,” “Collected,” or “Collecting” shall mean to physical ly possess, Transport, and remove Discarded Materials from a Premise and from within the City.
2.35 Collection Area
“Collection Area” shall mean all Premises within the City, including Premises which may be annexed and thereby added to the City following the Effective Date.
2.36 Commercial
“Commercial” is used to describe Solid Waste service provided to, or records related to, Commercial Premises.
2.37 Commercial Edible Food Generators
“Commercial Edible Food Generators” includes Tier One Commercial Edible Food Generators and Tier Two Commercial Edible Food Generators, or as otherwise defined in 14 CCR Section 18982(a)(7). For the purposes of this Agreement , Food Recovery Organizations and Food Recovery Services are not considered Commercial Edible Food Generators.
2.38 Commercial Premises
“Commercial Premises” means Premises upon which business activity is conducted, including but not limited to retail sales, services, wholesale operations, manufacturing , and industrial operations, but excluding Residential Premises upon which business activities are conducted when such activities are permitted under applicable zoning regulations and are not the primary use of the property.
Notwithstanding any provision to the contrary herein, in the Municipal Code, or otherwise, for purposes of this Agreement, Premises upon which hotels and motels are operated shall be deemed to be Commercial Premises.
2.39 Compost
“Compost” has the same meaning as in 14 CCR Section 17896.2(a)(4), which stated, as of the Effective Date of this Agreement, that “Compost” means the product result ing from the controlled biological decomposition of organic Solid Wastes that are Source Separated from the municipal Solid Waste stream, or which are separated at a centralized Facility.
2.40 Compostable Plastics
“Compostable Plastics” or “Compostable Pl astic” means plastic materials that meet the ASTM D6400 standard for compostability.
2.41 Construction and Demolition Waste
“Construction and Demolition Waste,” “Construction and Demolition Debris,” “C&D Waste,” or “C&D Materials” means any combination of inert building materials and Solid Waste resulting from
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construction, remodeling, repair, cleanup, or demolition operations as defined in California Code of Regulations, Title 22 Section 66261.3 et seq. This term includes, but is not limited to, asphalt, c oncrete, Portland cement concrete, brick, lumber, gypsum wallboard, cardboard, and other associated packaging; roofing material, ceramic tile, carpeting, plastic pipe and steel. The material may be commingled with rock, soil, tree stumps; and , other vegetative matter resulting from land clearing and landscaping for construction or land development projects.
2.42 Container
“Container” means any and all types of Discarded Materials receptacles, including Residential and bus stop, Carts, cans, Split-Containers, Bins, and Roll-off Boxes.
2.43 County Agreement
”County Agreement” shall mean that certain waste disposal agreement, as the same may be amended from time to time, entered into among various Orange County cities, including specifically the City of Anaheim, and the County of Orange relating to the use of County of Orange landfills for the Disposal of Solid Waste Collected in such cities, and which is on file in the office of City’s City Clerk.
2.44 CPI or Consumer Price Index
“CPI” or Consumer Price Index means the Consumer Price Index for All Urban Consumers (CPI-U) CUUR0000SA0L1E, U.S. All Items Less Food and Energy.
2.45 Customer
“Customer” shall mean any P erson receiving Discarded Materials Handling Services from Republic within the Collection Area.
2.46 Designated Disposal Facility
“Designated Disposal Facility” means the Disposal Facility identified in Exhibit E, that is a Disposal Facility and that the City is directing Republic to use.
2.47 Designated Facility
“Designated Facility” means the Designated Disposal Facility.
2.48 Designated Waste
“Designated Waste” means non-Hazardous Waste which may pose special Disposal problems because of its potential to contaminate the environment and which may be Disposed of only in Class II Disposal sites or Class III Disposal sites pursuant to a variance issued by the California Department of Health Services.
Designated Waste consists of those substances classified as Designated Waste by the State, in California Water Code of Regulations Title 23, Section 252213173, as may be amended from time to time.
2.49 Discarded Materials
“Discarded Materials” are included in the definition of Solid Waste and shall be regulated as such. For purposes of this Agreement, material is deemed to have been discarded, without regard to whether it is destined for Processing or Disposal, and whether or not is has been separated from other Solid Wastes, in all cases where a fee or other compensation, in any form or amount, is directly or indirectly solicited from,
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or, levied, charged, or otherwise imposed on, or paid by, the Generator or Customer in exchange for handling services. As used herein, handling services include, without limitation, the Collection, removal, Transportation, delivery, Processing, and/or Disposal of the material. Discarded Materials do not include Edible Food t hat is recovered for human consumption and is not discarded. For the purposes of this Agreement, Discarded Materials include Source Separated Recyclable Materials, Source Separated Organic Materials, Food Waste, Refuse, Black Container Waste, and C&D Material once the materials have been placed in Containers for Collection.
2.50 Disposal
“Disposal,” “Dispose,” or any variation thereof, means the ultimate disposition of Discarded Materials Collected by Republic at a landfill or otherwise in full regulatory compliance.
2.51 Divert/Diversion
“Divert,” “Diversion,” or any variation thereof, means to prevent Discarded Materials from Disposal at landfill or Transformation facilities, (including facilities using incineration, pyrolysis, distillation, gasification, or biological conversion methods) through source reduction, reuse, Recycling, composting, anaerobic digestion, or other method of Processing, subsequent to the provisions of AB 939. Diversion is a broad concept that is to be inclusive of material handling and Processing changes that may occur over the Term including, but not limited to, changes in standard industry practice or implemen tation of innovative (but not necessarily fully proven) techniques or technology that reduce Disposal risk, decrease costs, and/or are for other reasons deemed desirable by the City.
2.52 Dwelling Unit
“Dwelling Unit” shall mean a Residential structure containing one (1) or more habitable rooms, having one (1) and only one (1) kitchen, and arranged for or occupied by one or more P ersons living as a household unit with common access to all living, eating, and food preparation areas.
2.53 Edible Food
“Edible Food” means food intended for human consumption. For the purposes of this Agreement, Edible Food is not Solid Waste or Discarded Materials if it is recovered and not discarded. Nothing in this Agreement requires or authorizes the recovery of Edible Food that does not meet the food safety requirements of the California Retail Food Code. If the definition in 14 CCR Section 18982(a)(18) for Edible Food differs from this definition, the definition in 14 CCR Section 18982(a)(18) shall apply to this Agreement.
2.54 Effective Date
“Effective Date” shall mean the date on which the Ordinance granting this Agreement takes effect.
2.55 Electronic Waste or E-Waste
“Electronic Waste” or “E-Waste” means electronic equipment and includes, but is not limited to, stereos, televisions, computers and computer monitors, cellular phones, fax machines, household copiers, computer printers, other items with electric plugs that are banned from landfill Disposal, and other similar items commonly known as “brown goods”.
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2.56 Environmental Laws
“Environmental Laws” means all federal and State statutes, county, local, and City ordinances concerning public health, safety , and the environment including, by way of example and not limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 USC §9601 et seq.; the Resource Conservation and Recovery Act, 42 USC §6901 et seq.; the Federal Clea n Water Act, 33 USC §1251 et seq.; the Federal Clean Air Act, 42 USC §7401 et seq.; the Toxic Substances c ontrol Act, 15 USC §2601 et seq.; the occupational Safety and Health Act, 29 USC §651 et seq.; the California Hazardous Waste Control Act, California Health and Safety Code §25100 et seq.; the Carpenter-Presley- Tanner Hazardous Substance Account Act, California Health and Safety Code §25300 et seq.; the Porter- Cologne Water Quality Control Act, California Water Code §13000 et seq.; the Safe Drinking Water and Toxic Enforcement Act, California Health and Safety Code §25249.5 et seq.; as currently in force or as hereafter amended, and all rules and regulations promulgated thereunder.
2.57 Excluded Waste
“Excluded Waste” means the following materials, including but not limited to, Hazardous Waste, Sharps, infectious waste, Designated Waste, volatile, corrosive, biomedical, biohazardous, and toxic substances , or other material, Excluded Waste also includes any material that would, as a result of, or upon Disposal, be a violation of local, S tate, or federal law, regulation , or ordinance, including land use restrictions or conditions, waste that cannot be Disposed of in Class III landfills, waste that would present a significant risk to human health or the environment, cause a nuisance, or otherwise create or expose Republic or City to potential liability ; but not including de minimis volumes or concentrations of waste of a type and amount normally found in Residential Solid Waste after implementation of program s for the safe Collection, Recycling, treatment, and Disposal of batteries and paint in compliance with Sections 41500 and 41802 of the California Public Resources Code.
2.58 Exhibit
“Exhibit” means an exhibit to this Agreement, as the same may be amended or modified from time to time in accordance with the terms hereof.
2.59 Facility(ies)
“Facility” means any Approved or Designated Facility, plant or site, owned or leased and maintained, operated, or used by Republic for purposes of performing under this Agreement.
2.60 Food Recovery
“Food Recovery” means actions to collect and distribute Edible Food for human consumption which otherwise would be Disposed, or as otherwise defined in 14 CCR Section 18982(a)(24).
2.61 Food Recovery Organization
“Food Recovery Organization” means an entity that primarily engages in the collection or receipt of Edible Food from Commercial Edible Food Generators and distributes that Edible Food to the public for Food Recovery either directly or through other entities, including, but not limited to:
A. A food bank as defined in Section 113783 of the Health and Safety Code; B. A nonprofit charitable organization; and,
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C. A nonprofit charitable temporary food facility as defined in Section 113842 of the Health and Safety Code.
If the definition in 14 CCR Sec tion 18982(a)(25) for Food Recovery Organization differs from this definition, the definition in 14 CCR Section 18982(a)(25) shall apply to this Agreement.
2.62 Food Recovery Service
“Food Recovery Service” means a Person or entity that collects and transp orts Edible Food from a Commercial Edible Food Generator to a Food Recovery Organization or other entities for Food Recovery; or, as otherwise defined in 14 CCR Section 18982(a)(26).
2.63 Food Scraps
“Food Scraps” means all food such as, but not limited to , fruits, vegetables, meat, poultry, seafood, shellfish, bones, rice, beans, pasta, bread, cheese, and eggshells. Food Scraps excludes fats, oils, and grease when such materials are Source Separated from other Food Scraps. Food Scraps is a subset of Food Waste.
2.64 Food-Soiled Paper
“Food-Soiled Paper” means compostable paper material that has come in contact with food or liquid, such as, but not limited to, compostable paper plates, paper coffee cups, napkins, pizza boxes, and non-waxed milk cartons.
2.65 Food Waste
“Food Waste” means Source Separated Food Scraps, Food-Soiled Paper, and Compostable Plastics (only if able to be Collected per Exhibit E). Food Waste is a subset of Source Separated Green Container Organic Waste (Source Separated Organic Materials).
2.66 Franchise
“Franchise” means this Solid Waste Franchise granted by City to Republic, pursuant to this Agreement as amended and restated herein.
2.67 Generator
“Generator” means any Person whose act first causes Solid Waste to become subject to regulation under federal, State, or local regulations.
2.68 Green Container
“Green Container” has the same meaning as in 14 CCR Section 18982(a)(29) and shall be used for the purpose of storage and Collection of Source Separated Green Container Organic Materials.
2.69 Hazardous Waste
“Hazardous Waste” means as defined in Section 26.2 of the Agreement.
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2.70 Incompatible Materials
“Incompatible Material” or “Incompatibles” mean(s) human -made inert material, including, but not limited to, glass, metal, plastic, and also includes Organic Waste that the receiving end -user, Facility, operation, property, or activity is not designed, permitted, or authorized to perform Organic Waste recovery activities as defined in 14 CCR Section 18983.1(b), or as otherwise defined by 14 CCR Section 17402(a)(7.5).
2.71 Large Event
“Large Event” means an event, including, but not limited to, a sporting event or a flea market, that charges an admission price, or is operated by a local agency, and serves an average of more than 2,000 individuals per day of operation of the event, at a location that includes, but is not limited to, a public, nonprofit, or privately owned park, parking lot, golf course, street system, or other open space when being used for an event. If the definition in 14 CCR Section 18982(a)(38) differs from this definition, the definition in 14 CCR Section 18982(a)(38) shall apply to this Agreement.
2.72 Large Venue
“Large Venue” means a permanent venue facility that annually seats or serves an average of more than 2,000 individuals within the grounds of the facility per day of operation of the venue facility. For purposes of 14 CCR, Division 7, Chapter 12 and this Agreement, a venue facility includes, but is not limited to, a public, nonprofit, or privately owned or operated stadium, amphitheater, arena, hall, amusement park, conference or civic center, zoo, aquarium, airport, racetrack, horse track, performing arts center, fairground, museum, theater, or other public attraction facility. For purposes of 14 CCR, Division 7, Chapter 12 and this Agreement, a site under common ownership or control that includes more than one Large Venue that is contiguous with other Large Venues in the site, is a single Large Venue. If the definition in 14 CCR Section 18982(a)(39) differs from this definition, the definition in 14 CCR Section 18982(a)(39) shall apply to this Agreement.
2.73 Materials Recovery Facility (“MRF”)
“Materials Recovery Facility” means a permitted Solid Waste Facility where Solid Wastes or Recyclable Materials are pre -processed, or sorted or separated for the purposes of Recycling, P rocessing, or composting.
2.74 Manager
“Manager” means the Public Works Operations Manager of the City, or their designated representative, or any employee of the City who succeeds to the duties and responsibilities of the Manager.
2.75 Mixed-Use Premises
“Mixed-Use Premises” means buildings with combined Commercial and Residential Premises that have been designated as Mixed-Use Premises by the Public Works Operations Manager.
2.76 Mixed-Use Premises Compactor Service
“Mixed-Use Premises Compactor Service” means the Collection and Processing of City Solid Waste from City Mixed -Use Premises by Republic as approved by the Manager, in Roll-off Boxes with attached
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compaction devices ten (10) cubic yards or greater in capacity. This service shall be billed by Republic in accordance with the City’s approved rate schedule.
2.77 Mulch
“Mulch” means a layer of material applied on top of soil, and, for the purposes of the Agreement, Mulch shall conform with the following conditions, or conditions as otherwise specified in 14 CCR Section 18993.1(f)(4):
Meets or exceeds the physical contamination, maximum metal concentration, and pathogen density standards for land applications specified in 14 CCR Section 17852(a)(24.5)(A)(1) through (3).
Was produced at one or more of the following types of Facilities:
A. A compostable material handling operation or Facility as defined in 14 CCR Section 17852(a)(12), that is permitted or authorized under Division 7 of Title 14 of the CCR, other than a chipping and grinding operation or Facility as defined in 14 CCR Section 17852(a)(10); B. A Transfer/Processing Facility or Transfer/Processing operation as defined in 14 CCR Section 17402(a)(30) and (31), respectively, that is permitted or authorized under 14 CCR, Division 7; or, C. A Solid Waste landfill as defined in PRC Section 40195.1 that is permitted under 27 CCR, Division
2. 2.78 Multiple-Unit Dwelling
“Multiple-Unit Dwelling” means any building in the City, other than a Single-Family Dwelling, used for Residential purposes.
2.79 Multiple-Unit Dwelling Premises Compactor Service
“Multiple-Unit Dwelling Premises Compactor Service” means the Collection and Processing of City Solid Waste from City Multiple-Unit Dwelling Premises by Republic as approved by the Manager, in Roll-off Boxes with attached compaction devices ten (10) cubic yards or greater in capacity. This service shall be billed by Republic in accordance with the City’s approved rate schedule.
2.80 Municipal Code
“Municipal Code” means the Anaheim Municipal Code, as the same may be amended, supplemented , or modified from time to time.
2.81 Non-Compostable Paper
“Non-Compostable Paper” includes, but is not limited to, paper that is coated in a plastic material that will not breakdown in the composting Process, or as otherwise defined in 14 CCR Section 18982(a)(41).
2.82 Non-Organic Recyclables
“Non-Organic Recyclables” means non-putrescible and non-hazardous recyclable wastes including, but not limited to, bottles, cans, metals, plastics, and glass, or as otherwise defined in 14 CCR Section 18982(a)(43). Non-Organic Recyclables are a subset of Source Separated Recyclable Materials.
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2.83 Organic Materials
“Organic Materials” means Yard Waste and Food Waste, individually or collectively. No Discarded Material shall be considered to be Organic Materials, however, unless it is Sour ce S eparated from Recyclable Materials and Solid Waste. Organic Materials are a subset of Organic Waste.
2.84 Organic Waste
“Organic Waste” means Solid Waste containing material originated from living organisms and their metabolic waste products including, but not limited to, food, Yard Waste, Food Waste, organic textiles and carpets, lumber, wood, paper products, printing and writing paper, manure, biosolids, digestate, and sludges, or as otherwise defined in 14 CCR Section 18982(a)(46). Biosolids and digestate are as defined in 14 CCR Section 18982(a)(4) and 14 CCR Section 18982(a)(16.5), respectively.
2.85 Overdue Rate
“Overdue Rate” means the maximum rate of interest permitted by the laws of the State, if applicable, or the rate charged by the Bank of America, N.A. or any successor or assignee as its base rate, plus one percent (1%), whichever is lower.
2.86 Party or Parties
“Party” or “Parties” refers to the City and Republic, individually or together.
2.88 Premises
“Premises” shall mean any land, building, and/or structure within the City limits where Solid Waste is generated or accumulated.
2.89 Process, Processed, or Processing
“Process,” “Processed ,” or “Processing” means the controlled separation, recovery, volume reduction, conversion, or Recycling of Solid Waste including, but not limited to, organized, manual, automated, or mechanical sorting, the use of vehicles for spreading of waste for the purpose of recovery, and/or includes the use of conveyor belts, sorting lines, or volume reduction equipment, or as otherwise defined in 14 CCR Section 17402(a)(20).
2.90 Processing Facility(ies)
“Processing Facility(ies)” means facilities where the following activities are conducted: sorting, cleaning, treating, composting, and reconstituting 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 marketplace. Processing Facilities include materials recovery facilities, Compost facilities, Construction and Demolition Waste sorting facilities, co ncrete and asphalt grinding facilities, facilities for the preparation of bioengineered feedstock, Transfer stations, and any other plant or site, owned or leased and maintained, operated, or used by Republic for purposes of performing under this Agreement. Processing Facilities does not include waste-to-energy, thermal destruction , or any type of Transformation facilities.
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2.91 Prohibited Container Contaminants
“Prohibited Container Contaminants” means the following: (i) Discarded Materials placed in the Source Separated Recyclable Materials Container that are not identified as acceptable Source Separated Recyclable Materials for the City’s Source Separated Recyclable Materials Container; (ii) Discarded Materials placed in the Source Separated Organic Materials Container that are not identified as acceptable Source Separated Container Organic Materials for the City’s Source Separated Organic Materials Container; (iii) Discarded Materials placed in the Refuse Container that are acceptable Source Separated Recyclable Materials and/or Source Separated Organic Materials to be placed in City’s Source Separated Organic Materials Container and/or Source Separated Recyclable Materials Container; and, (iv) Excluded Waste placed in any Container.
2.92 Putrescible Waste
“Putrescible Waste” means wastes that are capable of being decomposed by micro -organisms with sufficient rapidity as to cause nuisances because of odors, gases, or other offensive conditions, and includes materials such as, but not limited to Food Waste, offal, and dead animals; or, as otherwise defined in 14 CCR Section 17402(a)(21).
2.93 Recycle or Recycling
“Recycle” or “Recycling” means the process of Collecting, sorting, cleansing, treating, and reconstituting materials for the purpose of retu rning them to the economic mainstream in the form of raw material for new, reused, or reconstituted products which meet the quality standards necessary to be used in the marketplace. Recycling includes processes deemed to constitute a reduction of landfill Disposal pursuant to 14 CCR, Division 7, Chapter 12, Article 2. Recycling does not include gasification or Transformation, as defined in Public Resources Code Section 40201.
2.94 Recyclable Material or Recyclables
“Recyclable Material” or “Recyclables” means those Discarded Materials that the Generators set out in Recyclables Containers for Collection for the purpose of Recycling by Republic and that exclude Excluded Waste. No Discarded Materials shall be considered Recyclable Materials unless such material is separated from Organic Materials, and Solid Waste. Recyclable Materials shall include, but not be limited to: newspaper (including inserts, coupons, and store advertisements); mixed paper (including office paper, computer paper, magazines, junk mail, catalogs, brown paper bags, brown paper, paperboard, paper egg cartons, telephone books, grocery bags, colored paper, construction paper, envelopes, legal pad backings, shoe boxes, cereal, and other similar food boxes yet excluding paper tissues, paper towels, paper with plastic coating, paper contaminated with food, wax paper, foil -lined paper and cartons, and Tyvex non-tearing paper envelopes); chipboard; corrugated Cardboard; glass containers of any color (including brown, clear, and green glass bottles and jars); aluminum (including beverage containers and small pieces of scrap metal); steel, tin, or bi-metal cans; mixed plastics such as plastic containers (no. one (1) to seven (7) except six (6)) and except expanded Polystyrene (EPS); bottles including containers made of HDPE, LDPE, or PET; and, those materials added by Republic from time to time.
2.95 Refuse
“Refuse” shall mean Solid Waste or debris, except sewage, Construction and Demolition Debris, Recyclable Materials, and/or Organic Materials placed in Source Separated Containers for Collection.
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2.96 Renewable Natural Gas (RNG)
“Renewable Natural Gas” or “RNG” means gas derived from Organic Waste that has been Diverted from a landfill and Processed at an in-vessel digestion Facility that is permitted or otherwise authorized by 14 CCR to recover Organic Waste, or as otherwise defined in 14 CCR Section 18982(a)(62).
2.97 Residential
“Residential” is used to describe Solid Waste service provided to, or records related to, Residential Premises.
2.98 Residential Premises
“Residential Premises” shall mean all Premises upon which Dwelling Units exist. Notwithstanding any provision to the contrary herein, in the Municipal Code, or otherwise, for purposes of this Agreement, Premises upon which hotels and motels are operated shall be deemed to be Commercial Premises.
2.99 Roll-off Box
“Roll-off Box” means Discarded Materials Collection Containers of ten (10) cubic yards or larger, including Roll-off Boxes with attached compaction devices.
2.100 Sanitation Fund
“Sanitation Fund” means the Sanitation Fund established and maintained by the City in its accounting system as an enterprise fund pursuant to Section 10.12.040 of the Municipal Code, separate from its other funds and accounts for receipts and disbursements in connection with City sanitation services.
2.101 SB 1383
“SB 1383” means Senate Bill 1383 of 2016 approved by the Governor on September 19, 2016, which added Sections 39730.5, 39730.6, 39730.7, and 39730.8 to the Health and Safety Code, and added Chapter
13.1 (commencing with Section 42652) to Part 3 of Division 30 of the Public Resources Code, establishing methane emissions reduction targets in a statewide effort to reduce emissions of short -lived cli mate pollutants as amended, supplemented, superseded, and replaced from time to time. For the purposes of this Agreement, SB 1383 specifically includes and refers to the Short -Lived Climate Pollutants (SLCP):
Organic Waste Reductions Regulations developed by CalRecycle and adopted on November 3, 2020, that created Chapter 12 of 14 CCR, Division 7 and amended portions of regulations of 14 CCR and 27 CCR.
2.102 Self-Hauler
“Self-Hauler” or “Self-Haul” means a Person who hauls Discarded Materials, recovered ma terial, or any other material, to another Person in accordance with the terms of this Agreement and City’s Municipal Code. Self-Hauler also includes a Person who Back -Hauls waste, as defined in 14 CCR Section 18982(a)(66)(A).
2.103 Service Fee
“Service Fee” has the meaning specified in Section 13.1 hereof.
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2.104 Sharps
“Sharps” means hypodermic needles, pen needles, intravenous needles, lancets, and other devices that are used to penetrate the skin for the delivery of medications.
2.105 Single Family Dwelling
“Single Family Dwellin g” means any building in the City used for or designated as a Single Family Dwelling, including each part of a condominium project, duplex, a townhouse project, mobile home park.
Any ambiguity as to whether a Custome r’s Premises qualifies as a Single Family Dwelling or Multiple- Unit Dwelling shall be resolved by City.
2.106 Solid Waste
“Solid Wast e” means all discarded P utrescible Waste and non-putrescible solid, semisolid, and liquid wastes, including Refuse, C&D Waste, Bulky Items, Recyclable Materials, and Organic Waste, or any combination thereof which are permitted to be Disposed of in a Class III landfill, and which are included in the definition of “Non-hazardous Solid Waste” set forth in the California Code of Regulations . “Solid Waste” means all Solid Wastes generated by Residential, Commercial, and industrial sources, and all Solid Waste generated at construction and demolition sites, and at treatment works for water and waste water, which are Collected and T ransported under the authorization of the City or are Self-Hauled by residents or contractors. Solid Waste does not include agricultural crop residues, mining waste and fuel extraction waste, forestry wastes, ash from industrial boilers, furnaces and incinerators , or hazardous materials, or any waste which is not permitted to be Disposed of at a Class III landfill and which fall within the definition of “Nonhazardous Soli d Waste” set forth in Title 23, Chapter 15, Section 2523(a) of the California Code of Regulations as amended or designated Class II wastes. Materials shall be deemed “Solid Waste” consistent with the meaning of California Public Resources Code Section 4019 1, and for purposes of this Agreement shall be regulated as such, whether or not they may be potentially Recyclable Material, in either of the following instances: (a) the material is mixed or commingled with other types of Solid Waste such that more than sixty -five percent (65%) of the material consists of Solid Waste rather than Recyclable Materials, or (b) the payment of a fee, charge, or other consideration, in any form or amount, is directly or indirectly solicited or received from the Generator by any Person or combination of Persons in exchange for Collection, removal, Transportation, storage, Processing, handling, consulting, Container rental, or Disposal services (“fee for service” Recycling), whether or not arranged by or through a subcontractor, broker, agent, consultant, or Affiliate of the provider of such service.
2.107 Solid Waste Handling Services
“Solid Waste Handling Services” or “Discarded Materials Handling Services” means the Collection, Transfer, Transport, Recycling, Processing, and Disposal of Discarded Materials.
2.108 Source Separated
“Source Separated” or “Source Separate” means materials, including commingled Recyclable Materials, that have been separated or kept separate from the Refuse stream, at the point of generation, for the purpose of additional sorting or Processing of those materials for Recycling, composting, or reuse in order to return them to the economic mainstream in the form of raw material for new, reused, or reconstituted products which meet the quality standards necessary to be used in the marketplace, or as otherwise defined in 14 CCR Section 17402.5(b)(4). For the purposes of the Agreement, Source Separated shall include separation of materials by the Generator, property owner, property owner’s employee, property manager, or property
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manager’s employee into different Containers for the purpose of Collection such that Source Separated materials are separated from Black Container Waste and other Solid Waste for the purposes of Collection and Processing.
2.109 Source Separated Blue Container Organic Waste
“Source Separated Blue Container Organic Waste” means Source Separated Organic Waste that can be placed in a Blue Container that is limited to the Collection of those Organic Wastes and Non -Organic Recyclables as d efined in 14 CCR Section 18982(a)(43); or, as otherwise defined by 14 CCR Section 17402(a)(18.7). Source Separated Blue Container Organic Waste is a subset of Organic Waste and Source Separated Recyclable Materials, for the purposes of this Agreement.
2.110 Source Separated Green Container Organic Waste
“Source Separated Green Container Organic Waste” or “ Source Separated Organic Materials” means material that can be placed in a Green Container that is specifically intended for the separate Collection of Organic Waste by the Generator, excluding Source Separated Blue Container Organic Waste, carpets, Non-Compostable Paper, and textiles. Source Separated Green Container Organic Waste is a subset of Organic Waste.
2.111 Source Separated Recyclable Materials
“Source Separated Recyclable Materials” means Source Separated Non-Organic Recyclables and Source Separated Blue Container Organic Waste.
2.112 Special Services
“Special Services” mean unique services for which rates have not been established, and that ar e beyond services contemplated under the scope of this Agreement, as further described in Section 8.11.
2.113 Special Wastes
“Special Wastes” shall mean wastes other than Solid Waste including sewage sludge (biosolids), industrial sludge, asbestos, auto bodies, tires, used motor oil, Hazardous Waste, Animal Waste, explosive substances, radioactive materials, and other materials which may not be Disposed of at a Class III landfill or which require special handling. It shall also mean and include Universal Waste, which are those wastes listed in Section 66261.9 of Division 4.5, Title 22, California Code of Regulations.
2.114 Split-Container
“Split-Container” means a Container that is split or divided into segregated sections, instead of an entire Container, or as otherwise specified in 14 CCR, Division 7, Chapter 12, Article 3.
2.115 State
“State” means the State of California.
2.116 Temporary Service
“Temporary Service” shall mean Solid Waste Handling Services provided by Republic on an as -needed and temporary basis to any Premises within the City in conjunction with construction, demolition, cleanup, or other projects, and by use of temporarily placed Bins or Roll-off Boxes.
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2.117 Term
“Term” shall have the meaning ascribed in Section 6 of this Agreement.
2.118 Tier One Commercial Edible Food Generators
“Tier One Commercial Edible Food Generator” means a Commercial Edible Food Generator that is one of the following, each as defined in 14 CCR Section 18982:
A. Supermarket.
B. Grocery Store with a total facility size equal to or greater than ten thousand (10,000) square feet.
C. Food Service Provider.
D. Food Distributor.
E. Wholesale Food Vendor.
If the definition in 14 CCR Section 18982(a)(73) of Tier One Commercial Edible Food Generator differs from this definition, the definition in 14 CCR Section 18982(a)(73) shall apply to this Agreement.
2.119 Tier Two Commercial Edible Food Generators
“Tier Two Commercial Edible Food Generator” means a Commercial Edible Food Generator that is one of the following, each as defined in 14 CCR Section 18982:
A. Restaurant with two hundred and fifty (250) or more seats, or a total facility size equal to or greater than five thousand (5,000) square feet.
B. Hotel with an on-site food facility and two hundred (200) or more rooms.
C. Health facility with an on-site food facility and one hundred (100) or more beds.
D. Large Venue.
E. Large Event.
F. A State agency with a cafeteria with two hundred and fifty (250) or more seats or total cafeteria facility size equal to or greater than five thousand (5,000) square feet.
G. A local education agency with an on-site food facility.
If the definition in 14 CCR Section 18982(a)(74) of Tier Two Commercial Edible Food Generator differs from this definition, the definition in 14 CCR Section 18982(a)(74) shall apply to this Agreement.
2.120 Tip
“Tip” means the act of a trash truck picking up a Container and emptying the Container into the truck, as performed during Collection service.
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2.121 Tip Frequency
“Tip Frequency” means the number of times a Container is scheduled to be emptied (tipped) during a calendar week by Republic.
2.122 Transfer
“Transfer” means the act of transf erring the materials Collected by Republic in its route vehicles into larger vehicles for Transport to other facilities for the purpose of Recycling, Processing, or Disposing of such materials.
2.123 Transformation
“Transformation” means incineration, pyrolysis, distillation, gasification, or biological conversion other than composting. “Transformation” does not include composting.
2.124 Transportation, Transport, or Transporting
“Transportation,” “Transport,” or “Transporting” means the act of conveying Collected materials from one location to another.
2.125 Universal Waste
“Universal Waste” or “U -Waste” mean any of the following waste that are conditionally exempt from classification as Hazardous Wastes pursuant to Title 22 of the California Code of Regulations (22 CCR), § 66261.9: (i) batteries as described in 22 CCR § 66273.2; (ii) thermostats as described in 22 CCR § 66273.4; (iii) lamps as described in 22 CCR § 66273.5; and, (iv) cathode tube materials as described in 22 CCR § 66273.6; (v) Electronic Waste.
2.126 Yard Waste
“Yard Waste” shall mean Organic Waste generated from any landscape, including but not limited to: grass clippings, leaves, prunings, tree trimmings, weeds, branches , and brush Collected pursuant to this Agreement. Yard Waste is a subset of Organic Materials and excludes Hazardous Waste.
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SECTION 3. GRANT OF EXCLUSIVE FRANCHISE TO PROVIDE SOLID
WASTE HANDLING SERVICES TO ALL RESIDENTIAL AND COMMERCIAL
PREMISES
3.1 Scope of Franchise
Except as hereinafter expressly set forth, City hereby grants to Republic and Republic hereby accepts from City, for the Term hereof, the exclusive contract, right, and privilege of franchise to Collect, Transport, and Dispose of all Solid Waste generated or accumulated within the Collection Area from Single Family and Multiple-Unit Dwellings, Commercial Premises, and industrial P remises. The exclusive Franchise, right, and privilege to provide Solid Waste Handling Services within City l imits, granted to Republic by this Agreement, shall be interpreted to be consistent with all Applicable Laws, now in effect and adopted during the T erm of this Agreement, and the scope of this Agreement shall be limited by all applicable current and developing laws and regulations. In the event that future interpretations of current law or future enactments limit the ability of City to lawfully grant to Republic a franchise for the scope o f services as specifically set forth herein, Republic agrees that the scope of this Agreement will be limited to those services and materials which may be lawfully provided, and that City shall not be responsible for any lost profits claimed by Republic as a result thereof.
3.2 Matters Excluded from Scope of Franchise
Notwithstanding any other provisions set forth in this Agreement to the contrary, the exclusive Franchise granted herein shall exclude the Collection, Transportation, Recycling, and Disposal of:
(A) Any Solid Waste otherwise within the scope of this Agreement which is Transported by a Self- Hauler as that term is defined in this Agreement and is used in the Municipal Code, or any other City ordinance, resolution, regulation, or policy, as such may be adopted or amended from time to time;
(B) Other Persons shall maintain the right to: (1) accept Source Separated Recyclable Materials and Source Separated Organic Materials donated from the service recipient, or (2) to pay the service recipient for Source Separated Recyclables and Source Separated Organic Materials provided that there is no net payment made by the service recipient to such other Person , including without limitation, discounted service fees paid by the Generator; (C) Any items which are Source Separated at any Premises by the Generator and sold or donated to other Persons, including youth, civic, or charitable organizations; (D) Any Solid Waste generated on City property and rights of way or in the course of City activities, otherwise within the scope of this Agreement which is Collected or T ransported to a Disposal or Recycling facility by City employees in the course and scope of their employment with City (street sweeping debris P rocessing/Disposal shall remain covered by this Agreement and shall b e either Collected from a City facility by Republic or delivered by City employees or a street sweeping service provider to an Approved or Designated Facility); (E) The Collection, Transportation, or Disposal of any Hazardous Waste or Substance as defined herein; Universal Waste; E-Waste; biohazardous waste; untreated medical waste; infectious waste; a nimal
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waste; used cooking fats, oils, grease and similar waste; or , other materials which do not constitute Solid Waste by the Person or entity that generated such wastes; (F) The Collection, T ransportation, and Disposal of Construction and Demolition Waste by a construction contractor, handyman, repairman, or other sim ilar service provider or such service provider’s employees, using its own equipment and containers, as an incidental part of the services provided to its customers, rather than as a hauling service, provided that such waste is not Collected or Transported by a third party hired for the primary purpose of Collecting and Transporting said materials;
(G) The Collection, Transportation, and Disposal of Yard Waste and related Solid Waste by a gardener, or landscaper, as an incidental part of the gardening or l andscaping services provided to its customers, rather than as a hauling service, provided, that such Solid Waste is not Collected or Transported by a third party hired for the primary purpose of Collecting and Transporting said materials;
(H) Solid Waste Handling Services provided by any Person having a legal right to continue doing so, pursuant to Public Resources Code Section 49520, Et. seq., or otherwise, as long as and to the extent such legal right continues to exist; except that to the degree any territory in which Republic has a franchise granted by another governmental entity is annexed into City during the Term, Republic agrees the provisions of this Agreement shall apply to such territory and further acknowledges that this Agreement constitutes any notice required by the Public Resources Code in connection therewith;
(I) Solid Waste Handling Services for State governmental agencies such as school districts, which may have facilities in City, but over which City has no jurisdiction in connection w ith the regulation of Solid Waste;
(J) The Collection, T ransfer, Transport, Recycling, Processing, and D isposal of A nimal Waste and remains from slaughterhouses or butcher shops for use as tallow; (K) The hauling of byproducts from agricultural or industrial sources in accordance with Public Resources Code Section 40059.4;
(L) The Collection, Transfer, Transport, Recycling, Processing, and Disposal of by-products of sewage treatment, including sludge, sludge ash, grit, and screenings; (M) Edible Food removed from a Premises for the purpose of Food Recovery, regardless of whether the Generator donates, sells, or pays a fee to another Person(s) to collect or receive the Edible Food from the Generator;
(N) Organic Waste that is composted or otherwise legally managed at the site where it is generated or at a community composting site, as defined by 14 CCR Section 18982(a)(8); (O) Food Scraps that are donated, sold, or collected for free for use in making new food products (such as spent grains made into food bars) for human consumption; and,
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(P) Solid Waste removed by cleanup services whose primary business is the cleanup of Solid Waste on the property of another Person and, incidental to such business, where all of the following apply: (i) the cleanup service hauls only the Solid Waste that it is contracted to clean up and no other Solid Waste; (ii) performs onsite cleanup services that includes removing junk from Commercial Premises, garages , and Residential Premises as part of the overall cleanup service, but does not remove Solid Waste or C&D Waste from Construction and Demolition Waste sites; (iii) uses their own vehicle to haul the Solid Waste which is contracted for clean up; and , (iv) does not use a Bin, Roll-off Box, or other Container to accomplish the cleanup, Collection , or Transportation of the Solid Waste.
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SECTION 4. ENFORCEMENT OF EXCLUSIVITY
Republic shall be responsible for enforcing the exclusivity of this Agreement. City shall reasonably assist Republic in its efforts to enforce the exclusivity hereof. In addition, City shall adopt such ordinances or other regulations as it deems to be necessary or desirable to protect the exclusive rights granted herein.
City shall have the right, but not the obligation, to enforce the exclusivity hereof, including by instituting appropriate legal proceedings, and/or to request that Republic do so. Republic shall have an affirmative obligation to enforce such exclusivity provisions when requested to do so by City. Republic shall reimburse City for its reasonable legal costs, extraordinary administrative costs (including staff time), or other expenses incurre d in connection with City's actions to either enforce the exclusivity hereof, or to assist Republic in doing so.
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SECTION 5. ACCEPTANCE OF AGREEMENT; WAIVER OF TERMS
Republic agrees to be bound by and comply with all the requirements of this Agreement. Republic waives Republic's right to change the terms of this Agreement under federal, State, or local law, or administrative regulation. Republic waives any right or claim to serve the City or any part of the City under any prior grant of franchise, contract, license, or permit issued or granted by any governmental entity including any right under Section 49520 of the Public Resources Code. Additionally, by and upon the execution of this Agreement, Republic agrees to the termination of the prior agreement as of the Effective Date, agrees to waive any and all rights under the prior agreement, and agrees to release and hold the City harmless from any of the City's obligations thereunder (excepting, however, the right to compensation accrued and unpaid for services provided prior to the Effective Date); provided, however, nothing contained in thi s provision is intended to or shall relieve Republic from any obligation existing under the prior agreement pertaining to insurance, indemnification, or other legal obligations to City or Customers (as opposed to obligations to provide service pursuant to the terms thereof), or from any obligation set forth in the prior agreement which are called out as surviving the termination thereof, and all such obligations, including specifically those indemnification obligations relating to Environmental Laws, general liability, and Applicable Laws shall survive the termination of the prior agreement.
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SECTION 6. TERM
6.1 Initial Term
The initial Term of this Agreement shall commence on the date on which the ordinance granting this Agreement takes effect, and shall end at midnight on June 30, 2031, unless this Agreement is terminated sooner pursuant to Section 18 hereof.
6.2 Extension
Subject to Section 6.3, on January 1 of each year commencing after July 1, 2024, the Term of this Agreement then existing shall be automatically extended for an additional one-year period.
6.3 Right of City or Republic to Avoid Automatic Extension City or Republic shall have the rig ht at any time to avoid the automatic extension provisions of Section
6.2 hereof. In order to exercise such right, City or Republic (as the case may be) shall provide written notice thereof to Republic or City (as applicable). Upon such notice, there shall be no further extension of this Agreement pursuant to Section 6.2 hereof, and the Term of this Agreement shall expire at midnight on June 30 of the last Agreement Year through which this Agreement has been automatically renewed pursuant to this Section. Any extension pursuant to subsection 6.2 hereof which occurred prior to giving of such notice shall remain in effect. In the event that either party exercises its rights under this Section
6.3, the Parties may subsequently reinstate the automatic extension provisions of Section 6.2 by written agreement.
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SECTION 7. CONDITIONS TO EFFECTIVENESS OF AGREEMENT
The satisfaction of each and all of the conditions set out below, each of which may be waived in whole or in part by City in writing, is a condition precedent to the effectiveness of this Agreement, and a condition of Republic's continued right to the benefits conveyed herein:
7.1 Accuracy of Representation
All representations and warranties made by Republic and set forth in this Agreement shall be accurate, true, and correct on and as of the Effective Date of this Agreement.
7.2 Absence of Litigation
There shall be no litigation pending in any court challenging the award of this Agreement to Republic or the execution of this Agreement or seeking to restrain or enjoin its performance.
7.3 Furnishing of Insurance, Surety, and Corporate Guarantee Republic shall have furnished evidence of the Surety (performance bond and/or l etter of c redit) and insurance required by Sections 14 and 15 hereof, and shall comply with all ongoing requirements relating thereto, and shall provide the corporate guarantee required by Section 30.8 hereof.
7.4 Effectiveness of City Council Actions
City's ordinance approving this Agreement shall become effective pursuant to California law.
7.5 Payment of Fees and Costs
Republic shall have made payment to City of all fees, costs , and other payments due as of the Effective Date as more fully set forth in Section 12.
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SECTION 8. SOLID WASTE HANDLING SERVICES PROVIDED BY
REPUBLIC
8.1 General
8.1.1 Provision of Labor, Materials, and Equipment
Republic shall furnish all labor, supervision, materials, supplies, and equipment necessary to provide for all services required by the terms of this Agreement.
8.1.2 Performance Standards
Republic shall perform Solid Waste Handling Services as required hereunder in a manner consistent with good housekeeping standards and all relevant provisions of the Municipal Code. Republic's equipment shall be maintained so as to both: (1) meet the highest industry standards with regards to efforts to prevent liquid from leaking and to the degree possible be "watertight" and "leak-proof” and, (2) at all times comply with the provisions of all laws and regulations, including any applicable National Pollution Discharge Elimination Systems ("NPDES") permit, with regards to leaking of materials. Republic shall immediately, within no more than ninety (90) minutes, clean up any spills from its equipment of which Republic becomes or is made aware.
8.1.3 Noise and Disruption
Republic shall perform Solid Waste Hand ling Services as required hereunder in such a manner as to minimize noise and other disruptive impacts including, without limitation, those upon traffic. Noise levels of equipment used for Col lection shall comply with City Municipal Code Section 6.70 Sound Pressure Levels.
8.1.4 Coordination with Street Sweeping
Republic shall use its best efforts to coordinate its Collection schedules such that street sweeping on any given street shall occur the Business Day following Collection of Discarded Materials by Republic.
8.1.5 Collection Times
Republic shall not commence Solid Waste Handling Services for Customers at Commercial Premises until 5:00 a.m. and for Customers at Residential Premises, including Multiple-Unit Dwellings, until 7:00 a.m., nor shall such activities occur after 8:00 p.m. for Customers at Commercia l Premises and 7:00 p.m. for Customers at Residential, including Multiple-Unit Dwellings, Premises. The 5:00 a.m. Commercial start time assumes early Collections will be in industrial areas , unless Republic has received advance written approval from Manager to perform Collection services prior to 5:00 a.m . The Manager may require Republic to comply with time frames applicable to Residential Premises in connection with Solid Waste Handling Services for Customers at Commercial Premises whose Premises are in close proximity, within five hundred (500) feet or less, to Residential Premises. Solid Waste Handling Services at Residential Premises shall not occur on Saturdays; excepting Temporary and Permanent Bin Services and Collection occurring on Saturdays following such holidays as may be approved by the Manager. Commercial Solid Waste Handling Services may occur on Saturdays. No Solid Waste Handling Services shall occur on Sundays at Residential Premises, except in exceptional circumstances for which specific approval is given by the Manager. Solid Waste Handling Services may occur at Commercial Premises on Sundays only as
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approved by the Manager; provided, however, no such service shall occur on Sundays in connection with any Premises at which the Manager determines such service would be contrary to the public interest.
8.1.6 Collection and Holiday Schedules
Republic shall establish Collection routes and a Collection schedule which shall be appr oved by the Manager such that Customers at all Residential and Commercial Premises within the City will have not less than one (1) established Collection day each week. Republic shall provide notice to each Customer of its established Collection day(s) . Re public shall not change Residential Premises or Multiple -Unit Dwellings Customers’ established Collection day(s) from those in effect on the Effective Date without providing notice to City, and shall provide at least two (2) weeks’ notice to Customers of any change in their established Collection day(s). Notwithstanding any provision herein to the contrary, and except in case of emergency or as otherwise required by Manager, should any established Collection date fall on one of the followi ng legal holidays, Republic shall provide for Collection one (1) day later during the pick-up week, and the regular pick-up schedule shall be resumed the following week: New Year’s Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, and Christmas Day. If one of these holidays fall s on a Sunday and the landfill in use and/or Republic’s collective bargaining agreement recognizes that holiday on the following Monday, then that Monday shall be conside red a legal holiday under this S ection. A pick-up week shall be defined as Monday through Saturday. Republic may not change its established Collection schedules without obtaining the prior written consent of the Manager.
All routes must be completed on the approved scheduled day. The City staff must be notified immediately by Republic, via email and or a telephone call, if a route will not be Collected according to the approved schedule. In addition, Republic shall provide a written explanation to the City outlining the cause of the failure and shall provide a plan to Collect all missed Customers the following Business Day.
8.1.7 Commingling of Routes
Unless authorized by the Manager, Republic shall not, during its Collection process, commingle Discarded Materials Collected hereunder with Solid Waste Collected in any other city or any unincorporated area, or on behalf of any other entity operating or existing within City that is not subject to this Agreement, and is specifically prohibited from combining Collection routes related to services provided pursuant to this Agreement with Collection routes for other jurisdictions it may service.
8.1.8 Replacement of Containers After Collection
Republic shall, whenever possible, place Carts in the street gutter, adjacent to the curb , upon completing Collection. If Cart was Collected from an alternative, approved location, Cart shall be returned to that location. Republic shall replace all Containers in the location upon the property of each Customer utilizing Containers designated for storage of Container s, and shall secure gates, doors, and/or enclosures when applicable. Any alternative Container Collection locations must be approved by the Cit y and Republic prior to implementing any alternative Collection locations.
8.1.9 Discarded Materials Collection Containers
(A) Republic's Containers shall meet the minimum standards set forth on the attached Exhibit B. (B) City-Provided Refuse and Recyc ling Carts . City has previously provided Refuse and Recycling Carts. City is no longer responsible for providing Carts. Republic may continue to use City-provided Carts in the City, subject to Exhibit B.
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(C) Container Inventory. Republic shall be solely responsible for the acquisition and distribution of Containers. Republic shall maintain an adequate supply of Containers on hand for distribution to new Customers or to existing Customers which require additional Containers to ensure delivery of requested Containers within seven (7) calendar days from the date of the requested change in service. (D) All Containers shall be maintained by Republic in good repair, and any question as to the meaning of this standard shall be resolved b y the Manager. All Container repairs or replacements shall be completed within three (3) Business Days, unless Container is lost/stolen or damaged beyond use and Customer has no receptacle for Re fuse, in which case, Republic shall provide a replacement within one (1) Business Day.
(E) All Containers shall be maintained by Republic in a watertight condition that are used primarily for the Disposal of Discarded Materials containing liquids or other materials that would otherwise leak from a non-watertight Container.
(F) Republic shall replace any damaged Containers at no charge to Customers, provided, however, that Republic shall be entitled to charge Customers for the replacement of any Container that has been damaged by a Customer, ordinary wear and tear excepted. Any such charge shall not exceed Republic's actual and reasonable cost of the Container (excluding Container delivery and removal), which shall be subject to the Manager's verification and approval of compliance with the terms of this Agreement.
(G) Republic shall, at Customer's request, once annually, refurbish, replace, and steam clean as necessary all Republic-owned Bins and Roll-off Boxes at no charge to Customers; provided, however, City may require the steam cleaning or replacement of Containers utilized at restaurants, bars, and grocery stores/markets more frequently if it determines such action is needed to protect public health and safety. Additional steam cleaning s, refurbishments, or replacements beyond once per year shall be provided to any Customers who request it at a charge not to exceed the maximum rate set forth in Exhibit A.
(H) Drivers shall be proactive in reporting Containers that require repair, replacement, and/or graffiti removal. Republic shall remove any graffiti that appears on any Containers in use in the City within twenty-four (24) hours, excluding Sundays and holidays, after becoming aware of it, either when seen by Republic or notified by City or Customer. Republic shall provide City crews with paint matching Containers in City to be carried in City vehicles at no charge so that City crews have the option of addressing graffiti immediately.
(I) All Containers shall be kept freshly painted in a uniform fashion and shall be identified with Republic's name and local phone number in letters on their exterior so as to be visible when the Containers are placed for use.
(J) At a Commercial Customer's request, Republic shall provide Containers with locking lids and locks, and may charge a one-time set-up charge to Commercial Customers not to exceed the maximum rate set forth on Exhibit A.
(K) At a Multiple-Unit Dwelling, Republic shall provide Containers with locking lids and locks only at the direction of the Manager, and may charge a one -time set -up ch arge to owners or property managers not to exceed the maximum rate set forth on Exhibit A.
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(L) At a Commercial or Multi-Unit Dwelling with difficult /special access or hard-to -reach Container areas, Republic may charge the rate set forth on Exhibit A.
8.1.10 Missed Pick-ups
In case of a missed pick -up called in by a Customer or City, Republic shall Collect Refuse , Recyclable Material, Organic Materials, and/or scheduled pickup Bulky Items from such Customer no later twenty- four (24) hours (excluding Sundays and holidays) after notification from either Customer or City. Records of the addresses of all missed pick-ups shall be maintained by Republic and shall be reported to City upon request. If Republic demonstrates to the satisfaction of the Manager a pattern of ongoing late "set -outs" by a given Customer, missed pick-ups resulting from late set-outs by that Customer shall not be counted as missed pick-ups in evaluating Republic's performance hereunder.
8.1.11 Record of Non-Collection
As more fully set forth herein and further described in Section 8.15.1.3.C, Republic shall Collect all Discarded Materials placed for Collection by Customers, excepting materials that are specifically called out herein (such as Hazardous Waste). Whenever Republic determines not to C ollect any Discarded Materials deposited for Collection, Republic shall leave a bilingual (English and Spanish) tag at least four and five tenths inches (4.5”) by nine inches (9”) in size, indicating the reason for Republic's refusal to do so. This information may be either handwritten or left by means of a check system (i.e., checking off boxes on a preprinted form /hang tag). The tag shall provide Republic's business name and its local telephone number and shall be securely fastened to the Container or the article refused. Republic shall maintain a record of all such tagging at its place of business. Such record shall contain the date of such notice, street address, reason for non-Collection, and a summary of any communications between Republic and the Customer involved. Such record shall be retained, either in the form of the original document or by electronic storage, so that it may be conveniently inspected by representatives of City upon request.
Annually, Republic must provide a list of all tagged Customers for inclusion on the CalRecycle Electronic Annual Report.
8.2 Residential Solid Waste Handling Service
8.2.1 Single Family and Multiple-Unit Dwelling Refuse Cart Service Republic shall provide each Customer at a Single Family Dwelling or Multiple-Unit Dwellings with four (4) units or less, where each Dwelling Unit has sufficient Cart storage space for individual Cart Collection service, with one (1) n inety-six (96) gallon Cart designated for the Collection of Refuse . Republic shall Collect all Black Container Waste placed in Black Containers for Collection not less than once per week using an automated Collection system at rates that do not exceed the maximum rates set forth in Exhibit A. Carts used for Collection of Black Container Waste shall comply with the Container standards, colors, and labeling requirements specified in Exhibit B. Any Customer requesting a smaller Cart shall be provided with a thirty-five (35) or sixty-four (64) gallon Cart by Republic instead of the standard ninety- six (96) gallon Cart noted above. There will be no charge for Cart size exchanges. Upon request from any Customer at a Single Family Dwelling or at a Multi ple-Unit Dwelling that receives Black Container Collection service, Republic shall provide such Customer with one (1) or more additional Black Container Waste Carts, and shall Collect all Black Container Waste placed for Collection in such additional Carts at rates that do not exceed the maximum rates set forth in Exhibit A. Wherever feasible, Customers shall be directed by Republic to place Carts for Collection either in the street gutter, against the curb, in front of their Premises, or adjacent to their Premises in the alley or easement in the rear of their Premises. If a
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Customer and Republic cannot agree upon a Collection location, or if City determines the selected location may cause safety or other concerns, City may make the final determination of the Collection location.
8.2.2 Walk-Out Service for Eligible Customers
Republic shall provide eligible Customers with "walk -out service" as set forth in this paragraph at no additional charge. This servi ce shall require Republic to use its own forces to bring a Customer's Carts from a Customer's backyard, side yard, or such other location at which the Customer's Containers are regularly stored, to Republic's Collection vehicle; and, after tipping of the contents thereof, returning said Containers to the location where they are regularly stored. To be eligible for this service, a Customer shall have a DMV -issued disabled P erson placard/license plate or provide a physician's letter as described herein. Each Customer desiring walk-out service shall cause a letter to be submitted to Republic from a physician confirming the Customer is unable to move their Carts to the curb, and that to the best of their knowledge there is no other capable P erson living in the Customer's household to provide this service.
Republic may require each eligible Customer to provide a new letter from a physician on an annual basis, or upon request by Republic, in order to maintain eligibility for walk-out service. In order to receive walk- out service, a Customer will be required to sign a standardized agreement, the terms of which shall be subject to City's approval, that authorizes entry onto the Customer's property and holds Republic harmless for any liability (including specifically l iability related to pets escaping) associated with Republic providing the service. Republic shall be fully responsible for administering this program, with the exception that any dispute regarding a Customer's eligibility for walk-out service shall be resolved by the Manager.
For any instance where walk -out service is required for Collection caused by unsafe or inaccessible site conditions, including but not limited to, low overhangs, steep access driveways or ramps, no turn-around or back-up area, and other such conditions for regular Collection V ehicles, Republic will bill Customer based on their reasonable direct cost to service the location plus a reasonable margin . Final rate shall be reviewed and approved by the City before initiating the special service request.
8.2.3 Refuse Cart Overage
Republic shall Collect additional Refuse placed out for Collection in the Residential Customer’s own Containers (bags, barrels, etc.) beside Customer’s Carts, up to the equivalent of six (6) bags per pickup, at no additional charge for two (2) weeks beginning each December 26. This service is limited to R efuse that could otherwise be placed in the Refuse Cart, and not Bulky Items which are Collected in accordance with just 8.2.8.
Customers may request a special pickup, whereby, after Republic has emptied all Discarded Materials Carts on Collection day, Customer may refill all Carts (Refuse, Recyclables, and Organic Materials Carts) with the same waste stream (either Refuse, Recyclables , or Organic Materials) and Republic shall return and empty all Carts . Republic may charge Customer directly in accordance with the Residential s pecial pickup rate in Exhibit A.
8.2.4 Single Family and Multiple-Unit Dwelling Recyclable Material Cart Service Republic shall provide each Customer at a Single Family Dwelling or Multi ple-Unit Dwelling with one (1) ninety-six (96) gallon Cart designated for the Collection of Recyclables at no additional charge. Upon request from any Customer at a Single Family Dwelling or Multiple-Unit Dwelling, Republic shall provide such Customer with one (1) or more additional Recyclable Materials Cart(s) at no additional charge. Any
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Customer requesting smaller Recycling Cart(s) shall be provided with a sixty-four (64) or thirty-five (35) gallon Recyclable Materials Cart(s) by Republic instead of the standard ninety-six (96) gallon Cart noted above. Republic shall Collect Recyclable Material s placed in Recycling C arts for Collection from each Customer at a Single Family Dwelling and Multi ple-Unit Dwelling on the same day as such Cust omer's Refuse Cart is Collected, utilizing an automated Collection process. Customers shall be directed to place Recycling Carts in the same location for Collection as Refuse Carts.
8.2.5 Curbside Grease Collection Program
If ever required by the applicable regulatory agency, Applicable Law, or requested by City, Republic shall design a program for the Collection of grease, fat, oils , and similar waste generated from household cooking activities (the "Curbside Grease Collection Program") that the Manager finds satisfactory and approves. Republic shall be responsible to ensure the Curbside Grease Collection Program complies with all Applicable Laws and regulations. At such time as a Curbside Grease Collection Program is implemented and maintained, and in order to ensure that Republic is fairly compensated for any additional costs incurred in implementing and maintaining such a program, Republic and City shall meet and confer in good faith to determine a fair and reasonable adjustment to the maximum rates set forth on Exhibit A in order to compensate Republic for implementing such a program. If Parties cannot agree upon a rate adjustment or program parameters within ninety (90) days of City’s request, the matter will be decided by a stipulated hearing officer as described in Anaheim Municipal Code Section 1.12.110.0106. The hearing process shall be as described in Section 1.12.110 of the Anaheim Municipal Code.
8.2.6 Single Family Organic Materials Collection
Republic shall provide all Single Family and Multi -Unit Dwelling Customers receiving Cart Refuse Collection with a ninety-six (96), sixty-four (64), or thirty-five (35) gallon Cart for Collection of Organic Materials. Carts used for Collection of Organic Materials shall comply with the Container standards, colors, and labeling requirements specified in Exhibit B. Republic shall Collect Organic Materials from Carts at the point of Collection (typically curbside) and return them to their approximate original position following Collection. Republic shall Collect all Organic Materials placed in Organic Materials Carts, as well as all Yard Waste bundled, as set forth below, and put out for Collection by Customers not less than once per week on the same day as Refuse Collection. Customers that regularly fill their Organic Materials Carts may receive additional Organic Materials Carts at the rates in Exhibit A. Republic shall have an Organic Waste Recycling program whereby it, at a minimum, Collects the types of Organic Materials defined in Section 2.83.
Republic shall only be obligated to Collect Yard Waste set out for Collection in bundles if it does not exceed a maximum of forty-eight (48) inches long and twenty-four (24) inches in diameter, with a bundled weight limit of forty-five (45) lbs. Republic shall inform Customers with greater quantities of Yard Waste to call for a Bulky Item Collection of the additional material by leaving a hang tag.
8.2.7 Use of Bins for Residential Dwellings
Republic shall provide Bin Collection service to Multiple-Unit Dwellings as approved by Manager.
Republic shall provide Bin Collection service to Single Family Dwelling Customers that request such service, subject to City approval. Republic shall supply each Residential Bin Customer with one (1) or more Bins in amounts specified by the Manager and at a rate not to exceed that set forth in Exhibit A.
Republic shall supply Bins meeting the minimum standards set forth in Exhibit B and Section 8.1.9 for Solid Waste Handling Services. In the event of any dispute as to the adequacy of the number of Bins at
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any given Multiple-Unit Dwellings, the Manager shall have the ability to approve the number and size of Bins used at such location and the frequency of Collection service . In the event extra Bin pickups are required at a Single Family or Multi ple-Unit Dwelling in any given month, Republic may charge the owner or manager of the Single Family or Multi ple-Unit Dwelling for such pickups an amount that does not exceed the maximum rate as set forth in the attached Exhibit A.
8.2.8 Bulky Item Collections from Residential Premises, Multi ple-Unit Dwelling, and Mixed-Use Premises
Republic shall Collect and remove any Bulky Item (as defined in Section 2. 26) disposed of at any Residential Premises, including each individual Multiple-Unit Dwelling and Residential Units at Mixed- Use Premises, upon the request of any Customer or of the Manager on behalf of any Customer. Collection from Customers with Cart service shall be on the Customer’s next regularly scheduled Collection day; Republic may require Customers to notify Republic by at least 12:00 p.m. of the Business Day prior to their Collection day. Collection from Customers with Bin service shall be within seven (7) calendar days from the day of the request. The first three (3) such Collections in any calendar year shall be provided by Republic without additional charge to the Customer. Each Collection shall be limited to a maximum of twenty (20) Bulky Items. Each item shall be a size and weight that can be safely loaded and T ransported in a Bulky Item Collection vehicle. For the fourth such Collection, and any subsequent Collection, in any calendar year, Republic is responsible for billing the Customer in accordance with the approved rate schedule in Exhibit A.
8.2.9 Bulky Item Diversion
Bulky Items Collected pursuant to this Agreement may not be landfilled until the following hierarchy of diversion efforts has been followed by Republic:
(A) Reuse as is (if energy efficient);
(B) Disassemble for reuse or Recycling;
(C) Recycle or other means of diversion; and,
(C) Disposal.
This hierarchy is intended to preclude the use of front or rear loading packer vehicles for Bulky Items unless the compaction mechanism is not used to compact the Bulky Items.
8.2.10 Proper Handling of Bulky Items
Republic shall properly handle all materials required to be Collected as Bulky Items, including specifically items that require special handling pursuant to the Environmental Laws, such as materials that constitute Universal Waste and/or E-Waste.
8.2.11 Residential Sharps Collection Program
Republic shall provide a mail-back program for the collection of used needles , lancets, and other Sharps (the "Sharps Collection Program") that the Manager finds satisfactory and approves. Republic shall be responsible to ensure the Sharps Collection Program complies with all Applicable Laws and regulations.
The Sharps Collection Program at a minimum will allow for Residential Customers (Single Family and
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Multiple-Unit Dwellings ) to receive specialized Sharps c ontainers for a fee , and return filled Sharps containers for proper disposal through the mail (may be U.S. Postal Service, FedEx, UPS, or other similar service), and may also include a drop-off location in or near City, at a location designated and serviced by Republic. The mail-back program will provide a return receipt to participants, providing documentation of proper disposal. Republic shall advertise and describe the program on its website, and shall provide Residents access to the program through Republic’s website and through a published telephone number.
8.2.12 Residential Non-Controlled Medication Collection Program If requested to do so by City, or otherwise required by law, Republic shall design and present a program to City for the collection of unused non-controlled medicines (the "Non-Controlled Medication Collection Program") that the Manager finds satisfactory and approves. Republic shall be responsible to ensure any Non-Controlled Medication Collection Program complies with all Applicable Laws and regulations. It is anticipated that any Non -Controlled Medication Collection Program at a minimum will allow for Customers to mail unused medication (excepting controlled substances) to a specific c ollection location, in specialized packaging provided by Republic, and/or deliver unused medication (excepting controlled substances) to a location in or near City, at a location designated and serviced by Republic. At such time as (if) a Non-Controlled Medication Collection Program is implemented, and if necessary in order to ensure that Republic is f airly compensated for the additional costs incurred in implementing such a program, Republic and City shall meet and confer in good faith to determine a fair and reasonable adjustment to the maximum rates set forth on Exhibit A.
8.2.13 Curbside Hazardous Waste Collection and Drop Off Program If requested to do so by City, or otherwis e required by law, Republic shall design a program for the curbside Collection of Hazardous Waste that the Manager finds satisfactory and approves. Republic shall be responsible to ensure the program complies with all Applicable Laws and the Manager may specify the specific Hazardous Waste, or subsets of Hazardous Waste that are to be handled by the program . It is anticipated that any such program at a minimum may also allow for Customers to deposit Hazardous Waste at a specific Collection location, in specialized packaging provided by Republic, and/or deliver any such Hazardous Waste to a location in or near City, designated by Republic. At such time as (if) such program is implemented, and if necessary in order to ensure that Republic is fairly compensated for the additional costs incurred in implementing such a program, Republic and City shall meet and confer in good faith to determine a fair and reasonable adjustment to the maximum rates set forth on Exhibit A.
8.3 Commercial Solid Waste Handling Services
8.3.1 Commercial Refuse Collection
Republic shall provide all Commercial Customers with at least one (1) Bin, and/or Roll -off Box for Collection of Refuse, unless Customer chooses to provide its own compacting Containers. All Containers used for Collection of Refuse shall comply with the Container standards, colors, and labeling requirements specified in Exhibit B. Republic shall Collect all Discarded Materials placed in Containers for Collection, including Customer-owned Containers that are connected to a Customer's own packer unit, at rates that do not exceed the maximum rates set forth in Exhibit A ; all Containers shall be Collected not less than once per week . Republic shall provide additional Containers to Customers and shall provide additional Collections upon request, or as may be required by City's Municipal Code, health and safety requirements, or by the Manager, and may charge rates for such services whi ch do not exceed the maximum rates set forth in Exhibit A. Containers shall be Collected by Republic from the location upon each Customer's
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property designated for their storage, and replaced to that location with gates and/or doors secured, as applicable, after Collection is completed, unless different arrangements are agreed upon by the Customer and Republic.
8.3.2 Commercial Cart Service
As an alternative to the requirements of Section 8.3.1, Republic shall offer Collection in ninety-six (96), sixty-four (64), or thirty-five (35) gallon Carts to Commercial Customers that do not have space for, or do not generate enough Solid Waste to require the use of Bins for Collection. Rates for Customers receiving such service shall not exceed the maximum rates set forth on Exhibit A. If Republic and Customer have a disagreement as to whether Carts are appropriate, or if City determines the Collection in Carts cause health and safety or other concerns, City shall make the final determination as to whether Collection in Carts may occur. All Carts used for Collection of Discarded Materials shall comply with the Container standards, colors, and labeling requirements specified in Exhibit B.
8.3.3 Commercial Bulky Item Service
Republic shall provide unlimited Bulky Item C ollection services, on an on-call basis, to Customers not serviced under Section 8.2.8. Republic may charge these Customers for such services as Special Services at rates not to exceed those in Exhibit A. Bulky Item Collection service calls shall be responded to within a reasonable time but not longer than seven (7) calendar days from the date of the Customer's call for service. Republic shall produce, keep current, and provide public information specifically outlining the Bulky Item pick-up service. Bulky Items Collected pursuant to this Section are subject to the D iversion and handling requirements set forth in Section 8.2.9.
8.3.4 Commercial and Multiple-Unit Dwelling Organic Materials Collection Republic shall provide Source Separated Organic Materials Collection service, including Food Waste, for all Commercial and Multiple-Unit Dwelling Customers. At a minimum, the program shall include Organic Materials Cart Collection service and Organic Materials Bin Collection service at the rates included in Exhibit A, and any related services required under this Agreement. The implementation plan attached as Exhibit H includes a phase -in strateg y, schedule and tasks to be implemented by Republic for all Commercial and Multiple-Unit Dwelling Customers wit h a goal to be in compliance with SB 1383 requirements on or before March 1, 2024, unless a further extension is approved by CalRecycle as part of the City’s Compliance Action Plan (“CAP”) (including documentation for Customers eligible for de minimis or physical space waivers under SB 1383).
8.3.5 Commercial and Multiple-Unit Dwelling Recyclables Collection Republic agrees to provide Source Separated Recyclable Materials Collection service to Commercial and Multiple-Unit Dwelling Customers at the rates in Exhibit A. Republic may purchase Source Separated Recyclable Materials from its Customers as well. Republic agrees to provide Recyclable Materials Bins or Recyclable Materials Carts to such Customers in sufficient q uantities to meet the Recycling needs of each Customer. Recyclable Materials Collection programs shall be made available at a minimum for the same materials as included above in Section 8.2.4 for the Single -Family Cart Recyclable Materials program.
Republic shall make programs available for all other Recyclable Materials for which it has established markets. Republic shall notify all Commercial and Multi ple-Unit Dwelling Customers via a mailed flyer
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each year of the availability of Recyclable Materials Coll ection programs that includes a list of all acceptable materials to be Collected by the program.
8.3.6 Commercial and Multiple-Unit Dwelling Split-Containers Republic agrees to provide Split-Containers for space constrained Commercial and Multiple-Unit Dwelling Customers that cannot otherwise reasonably accommodate a separate Container on their Premises at the rates in Exhibit A. Customers that are approved for the use of Split-Containers by Republic and the City will be charged a one-time installation fee at the rate in Exhibit A.
8.4 Other Collection Programs
In the event CalRecycle, or any federal, State, or local law or regulation, imposes upon City or Republic a requirement for the implementation of any S ource Separated program for the Collection of any waste material (whether or not meeting the definition of Solid Waste hereunder) not already covered by this Agreement, whether Commercial or Residential in nature, City may require that Republic design and present a progra m to City to comply with such requirement within thirty (30) days of request, which program shall meet the Man ager's reasonable approval. At such time as (if) any such program is implemented, and if necessary in order to ensure that Republic is fairly compensated for the additional costs incurred in implementing and maintaining such a program, Republic and City shall meet and confer in good faith to determine a fair and reasonable adjustment to the maximum rates set forth on Exhibit A.
If City and Republic cannot agree upon terms of the program or the cost of the program within ninety (90) days of City receiving Republic’s proposal , the matter will be decided by a stipulated hearing officer as described in Anaheim Municipal Code Section 1.12.110.0106. The hearing process shall be as described in Section 1.12.110 of the Anaheim Municipal Code.
8.5 Temporary Services
Republic shall provide Temporary Services as de fined in Section 2.115 on an on-call basis to any Customer requesting such service pursuant to the following conditions:
(A) Containers utilized in connection with Temporary Services shall meet the minimum standards set forth herein.
(B) No charges exc epting rates not exceeding the maximum rates set forth in the attached Exhibit A related to Bins (whether Bins for clean -up projects or Bins for construction projects -which are designated as Temporary Bins and Temporary c onstruction Bins respectively on Exhibit A, and which may have differing maximum rates as reflected on Exhibit A) or Roll -off Boxes utilized in connection with Temporary Services shall be imposed by Republic, unless reviewed and approved in accordance with Section 8.11 (Special Services).
(C) Temporarily placed three (3) cubic yard Bins may be used for small cleanup -type projects at Residential Premises; provided, however, Bins used for such purposes shall not remain at the same address for a period that exceeds four (4) consecutive weeks. Bins used for Temporary Service shall not remain in any public rights-of-way for a period exceeding two (2) consecutive weeks. Bins may not be placed in any public rights-of-way so as to create a safety hazard or so as to block any right- of-way to a degree that it is not reasonably usable. Bins placed in City's rights-of-way shall be subject to such requirements as may be imposed by City, and at a minimum shall be equipped with reflectors,
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reflective tape, reflective paint, or other reflective devises which, to the satisfaction of the Manager, make such Bins reasonably visible to vehicle traffic at night. (D) Republic shall provide Temporary Construction and Demolition Waste Bins on a per-project basis and such Bins may be utilized for longer than four (4) consecutive weeks. These Bins shall not be placed in the right-of-way. If utilities are turned on at Premises where Temporary construction Bin service is being provided, Republic shall inform City to bill the Customer, and Republic shall be compensated at no more than the rate in Exhibit A for non-temporary service. Republic will Process all mixed C&D Waste Containers to achieve compliance with the current CalGreen Diversion requirements. On a monthly basis, Republic shall provide City with a complete list of all Temporary Service C&D Waste accounts and Customers . The list shall identify the Customers that have exceeded the four (4) consecutive week limit and have utilities turned on. Republic shall provide signed Customer s ervice agreements to start Cit y billing. Format of the list shall be reviewed and approved by the City.
(E) Republic shall provide all services necessary to support Customer compliance with all CalGreen Diversion requirements and all requirements of Applicable Laws, including but not limited to those in SB 1383, CalRecycle requirements for C&D Diversion, requirements of the Anaheim Municipal Code and all reporting and record-keeping requirements in said Applicable Laws. Such services shall include, but not be limited to: (A) informing all Customers requesting Containers, Bins, and/or Roll- off Boxes of the requirements of CalGreen including the Diversion percentage required ; (B) preparing a Diversion plan for the job site and di scussion with the job site superintendent or owner regarding same; (C) upon request of Customer, providing comprehensive training on the job site to all construction personnel about how to implement the Diversion plan for the job site, including explaining what material(s) are to be placed in each of the Containers for Source Separated Recyclable Materials (e.g. metal, glass, cardboard, sheetrock, concrete, asphalt), what materials are to be placed in the Organic Materials Containers for grubbing, soil, Yard Waste and wood, what materials are to be placed in the mixed C&D Containers, and what materials are to be placed in the Solid Waste Containers; (C) providing Containers, Bins, and/or Roll -off Boxes, as needed for storage and Transport of Source Separated Construction and Demolition Debris, Organic Materials, and mixed Construction and Demolition Debris, as well as appropriate size Containers for Solid Waste; (D) providing Collection service for all Containers on a timely basis : (E) delivering all Recyclable Materials, any Organic Materials, and all mixed C&D materials to the appropriate City- approved Processing Facility for Diversion and delivering all Solid Waste to the Designated Disposal site; (G) tracking and maintaining records of all tonnages of each type of material delivered to said Processing Facilities and of the tonnage of Solid Waste delivered for Disposal; (H) providing a monthly report to the City and the job site superintendent of the tons of each type of Divert ed material and Solid Waste delivered to Approved Facilities and for Disposal and the percentage of total C&D material generated by the job site and the tonnage Diverted for the past month; (I) providing the City with documentation and calculations of how Diversion is being assessed and achieved by each Processing Facility and how the percentage of Diverted mater ials (compared to inbound material tonnages ) is being tracked, calculated, and apportioned to the City of Ana heim versus other jurisdictions whose tonnage is also being processed at each Processing Facility; (J ) working and coordinating with Customer’s job site superintendent to ensure a smooth and effective Diversion program in compliance with all Applicable Law s; and, (K) making modifications to the Diversion plan, services, or other aspects of the C&D Diversion as directed by the City. Republic shall inform Customers utilizing Containers, Bins , and/or Roll-off Boxes that Discarded Materials
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being generated must be Diverted pursuant to the requirements of all Applicable Laws . Republic shall develop , produce , and distribute to such Customers, at Republic’s sole expense, a color brochure highlighting the requirements for Diversion of C&D Debris , describing methods of Diversion that will fulfill such requirements, and describing the services Republic shall provide as enumerated in this Section.
(F) Republic shall submit the brochure to City for final approval before printing and distribution to Customers.
8.6 Multiple-Unit Container Service Adjustment Procedures City staff will initiate a Solid Waste service level investigation at the request of property owners, tenants, and/or City staff, which may result in an increase or decrease in service levels.
City will notify Republic to inspect the identified location for up to three (3) weeks, documenting the date, Container number, and Discarded Materials level or other requested information on a report to the City for each day the Container(s) are checked. An inspection shall be done on Collection day prior to Collection. Republic shall photograph over -filled, overflowing, or otherwise problem Containers and provide site maps showing Container locations and Container numbers as part of the report. Republic shall also identify other options for reducing the volume of material in the Container(s) including, but not limited to, source reduction, flattening of boxes, and increasing Diversion of Recyclable Materials, Yard Waste, and/or Food Scraps . Within two (2) Business Days of completing the Solid Waste service inspection(s), Republic shall provide the report and supporting documentation to the Manager for review and make a recommendation regarding any service level adjustment.
Report shall be in a format approved by Manager, and any service changes must be approved by Manager.
8.7 Commercial Service Adjustment Procedures and Commercial Overflow Charges
8.7.1 Commercial Service Adjustment Procedure
Commercial Customers that regularly produce more Discarded Materials than their current level of service can accommodate may have their service level increased in accordance with the following procedure:
First Incident – If more material is placed for Collection than fits in a Container, Republic shall photograph the overflowing Container, Collect the Discarded Materials, and send to the Customer (at both the service and billing addresses) the picture and a letter instructing that addit ional instances of overflowing Containers may result in an increase in the level of service and related fees. The letter shall include options for reducing the volume of material in the Container(s) including, but not limited to, source reduction, flattening of boxes, and increasing Diversion of Recyclable Materials, Yard Waste, and/or Food Scraps.
The letter shall offer the services of Republic’s Recycling Coordinator at no charge to the Customer, to discuss and assist the Customer in implementing any of t he options to reduce the amount and volume of materials in the Container(s).
Second Incident –
Upon the second event of an overfilled Conta iner, Republic shall photograph the overflowing Container, Collect the Discarded Materials, and send to the Customer the picture and a letter instructing that a third incident may result in an increase in the level of service and related fees. The letter shall include options for reducing the volume of material in the Container(s) including, but not limited to, source reduction, flattening of boxes, and increasing Diversion of Recyclable Materials, Yard Waste,
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and/or Food Scraps. The letter shall offer the services of Republic’s Recycling Coordinator at no charge to the Customer, to discuss and assist the Customer in imp lementing any of the options to reduce the amount and volume of materials in the Container(s).
Third Incident – Upon the third event of an overfilled Container. Republic shall photograph the overflowing Container, Collect the Discarded Materials, and send to the Customer the picture and a letter documenting the third incident. The letter shall include options for reducing the volume of material in the Container(s) including, but not limited to, source reduction, flattening of boxes, and increasing Diversion of Recyclable Materials, Yard Waste, and/or Food Scraps. The letter shall offer the services of Republic’s Recycling Coordinator at no charge to the Customer, to discuss and assist the Customer in implementing any of the options to reduce the amount and volume of materials in the Container(s). Republic may present the photograph and written communications to the Manager and request an increase in Customer’s service level. Manager has the sole discretion to recommend and approve increased level of service or request code enforcement assistance and further investigation. On the third occasion of overfilling, and for each occurrence thereafter, Republic shall be entitled to directly charge the Customer the overflow fee if the Container overflowed sufficiently to require the driver to leave the Collection vehicle to clean spilled Discarded Materials around the Container. Republic shall maintain all records verifying first and second notices and photos supporting sufficient overflow requiring driver to leave Collection vehicle as described above.
This procedure is intended to address Customers that habitually overflow Containers and are not willing to implement additional Diversion of materials or other options to reduce the amount or volume of material in the overflowing Containers, and who have not voluntarily agreed to upgrade service levels. Nothing in this S ection is intended to prohibit Republic and Customer from mutually agreeing on voluntary adjustments to service levels.
8.7.2 Commercial Overflow Charges
Republic may directly charge the Customer the overflow fee in the approved rate schedule, as noted in Section 8.7.1 above, so long as Republic’s Customer service agreement contains notice that upon the third instance of overflowing Containers a Customer may receive a charge. Republic may not charge the overflow fee to any Commercial Customer if there was a reported missed pickup unless Republic can provide documentation confirming that the Container was not missed. Republic may not charge any overflow fees for Containers at Multiple-Unit Dwellings, City facilities, or other municipal locations.
Republic agrees that annual revenue from overflow fees may not exceed two hundred thousand dollars ($200,000) in any Agreement Year. In the event that overflow fees exceed two hundred thousand dollars ($200,000) in any Agreement Y ear, the additional revenue exceeding two hundred thousand dollars ($200,000) will be paid, by Republic, to the City of Anaheim within thirty (30) days after the end of each Agreement Year.
In the event that this Section gives rise to a dispute between Republic and a Customer, City shall settle the dispute in accordance with Section 10.8.4.
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8.8 Recycling Obligations
8.8.1 General
The Parties agree that accepted types of Source Separated Recyclable Materials may be added to or removed from the list included in Section 8.8.6 from time to time by mutual consent provided that in all cases Source Separated Recyclable Materials (including Source Separated Blue Container Organic Waste) is included for Collection. Republic shall not add or remove materials to or from this list without written approval from the City or signed amendment to the Agreement, and such approval shall not be unreasonably withheld. Republic shall update public education materials accordingly as new items are added to the list of those recovered by an Approved or Designated Facility and/or as directed by City .
Prohibited Container Contaminants shall not be Collected in Blue Containers and shall be tagged in accordance with Section 8.15.
Republic shall Transport the Source Separated Recyclable Materials to (i) the Approved Source Separated Recyclable Materials Processing Facility, or (ii) the Approved Transfer Facility for Transfer and Transport to the Approved Source Separated Recyclable Materials Processing Facility, as specified in Exhibit E.
8.8.2 Minimum Diversion
Republic warrants and represents that it is aware of and familiar with City’s current Source Reduction and Recycling Element (the “SRRE”), that it is familiar with City’s waste stream, and that it has the ability to provide sufficient programs and services to ensure City will meet or exceed the Diversion goals (including, without limitation, amounts of Discarded Materials to be D iverted, time frames for D iversion, and any other requirements) set forth in AB 939, AB 341, AB 1826, and SB 1383, and that it shall do so without imposing any costs or fees other than those set forth on t he attached Exhibit A. Republic acknowledges that it is responsible for ensuring that its various programs achieve the Diversion requirements hereunder, and that it may be required to modify its programs from time to time, at no additional cost to the City or Customers, to meet such D iversion requirements. Republic specifically acknowledges that the City ’s current mandated D iversion goal as set forth pursuant to the Applicable Laws is fifty percent (50%) (currently set per AB 939), and that this is subject to possible modification pursuant to the provisions of Applicable Law. In the event new programs are required to meet a Diversion goal in excess of fifty percent (50%) for the City, Republic and the City shall meet and confer in good faith in advance to determine a fair and reasonable adjustment to the maximum rates set forth on Exhibit A in order to compensate Republic for implementing such new programs.
8.8.3 Customer Participation Compliance Requirements
The minimum required level of Customer participation that must be achieved by Republic on or before March 1, 2024, unless a further extension is approved by CalRecycle as part of the City’s CAP. Republic shall maintain compliance annually thereafter which shall include the following:
8.8.3.1 SB 1383 Programs
(A) Residential Premises . Republic must fully implement a Residential Organic Materials Diversion program where all Residential Premises are provided the required Containers to comply with SB 1383.
(B) C ommercial Premises . Republic must implement and maintain an SB 1383 compliant Commerci al Recycling and Organic Materials Diversion program with the goal of providing Recycling and
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Organic Materials Containers to all Customers required to have such Containers under CalRecycle requirements, unless the Customer has been granted a waiver per th e City Municipal Code or Customer otherwise complies via third party program, Self-Haul, or Back-Haul programs.
8.8.3.2 Republic Has Maintained Full Implementation of All AB 341 and AB 1826 Diversion Programs As of the date of this Agreement, Republic agr ees to implement and maintain AB 341 and AB 1826 Diversion programs such that all Commercial Customers required to have such programs are subscribed to the Republic-provided program, unless the Customer has been granted a waiver per the City Municipal Code or Customer otherwise complies via third party program, Self-Haul, or Back-Haul programs.
8.8.3.3 Non-Compliant Customers
Republic shall document any Customers that are not in compliance with the required mandatory programs per AB 341, AB 1826, and/or SB 1383, and forward the list of non-compliant Customers to the City.
8.8.4 [Section Reserved]
8.8.5 Construction and Demolition Waste Roll-off Box Loads Republic shall Process all Construction and Demolition Waste Roll-off Box loads as necessary to achieve the minimum Diversion requirement listed in Section 8.8.2 and Exhibit E of the Agreement.
8.8.6 Minimum Requirements for Organic Materials and Recyclable Materials Republic shall utilize a truck dedicated for the purpose of Collecting Organic Materials from Customers, such that Organic Materials which ha ve been separated prior to Collection, once Collected, are not commingled with other Solid Waste (including Recyclable Material).
Similarly, Republic shall utilize a truck dedicated for the purpose of Collecting Recyclable Materials, such that Recyclable Material Collected in Recycling Containers, once Collected, is not commingled with other Solid Waste (including Organic Materials).
All material Collected by Republic in Recycling Containers pursuant to this Agreement shall be delivered to a properly permitted, City Approved Processing Facility for Recycling and reuse purposes as specified in Exhibit E.1 . At a minimum, the Recyclable Materials recovered shall include, but not be limited to:
aluminum cans; glass jars and bottles; bi -metal and tin cans; empty aerosol containers; polyethylene terephthalate plastic ( “PET”); high de nsity polyethylene plastic (“ HDPE”); plastics types 3 – 7; plastic bags, shrink wrap, and other plastic materials (if readily identifiable as being R ecyclable Material); juice boxes and milk cartons (aseptic packaging, Tetra Pak© and waxed cardboard); coat hangers and metal foil; newspaper; mixed paper (e.g., ledger, computer, junk mail, magazines, paperback books , cereal boxes, envelopes, paper shopping bags , and non-metallic wrapping paper); corrugated cardboard; and, telephone books. Republic may update this list with prior City approval.
All Organic Materials separated prior to Collection and thereafter Collected by Republic pursuant to this Agreement (including specifically materials Collected in Green or Brown Containers, Roll-off Boxes, and holiday trees) shall be delivered to a properly permitted an d City Approved or Designated Facility for Processing, Recycling, mulching, composting, or alternative uses for which D iversion credit is provided and approved by CalRecycle.
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All Recyclable Materials Containers , whether for permanent Residential or Commercial Customers or Temporary Service, shall be delivered to an properly permitted and City Approved Facility for Processing, Recycling, and reuse purposes.
8.8.7 Extent of Applicable Franchise Rights
Nothing in this Agreement shall be construed as giving Republic the right to Collect Recyclable Material which has not been discarded and placed for Collection by Republic in the location designated for that purpose.
8.8.8 Use of Alternate Processing Facilities
Republic is using alternative Processing Facilities to process certain Recyclable Materials, Organic Materials, and other materials as of the Effective Date. During the term of the prior amended -restated agreement between Republic and the City, a fire occurred on February 20, 2022, at the CVT facility owned by Republic located on Blue Gum Street in the City of Anaheim. The fire destroyed the materials recovery portion of the facility as well as other parts of the facility creating the need for Republic to locate alternate materials recovery facility(ies) to P rocess Recyclable Materials Collected in City. Loss of use of certain other portions of the CVT facility due to the fire resulted in Republic using other alternat e Processing Facilities for Diversion of materials Collected in City. Republic has estimated it will take two (2) to four (4) years to design, obtain permits, rebuild the facility, and to order, receive, and install new equipment to make the CVT facility completely operational again. During that time, City and Republic agree that the maximum rates listed in Exhibit A reflect Republic’s use of the alternate Processing Facilities (including but not limited to, T ransport of materials to said F acilities) as well as all other P rocessing and Transfer operations and Collection, Disposal, materials marketing operations , and all other services r equired by this Agreement. At such time as the CVT facility becomes partially and/or fully operational, Republic and the City agree that the rates in Exhibit A shall remain unchanged by such events, and shall only be adjusted as provided for in Section 13.3 of the Agreement.
8.9 Diversion Obligations, Guarantee, and Indemnification
8.9.1 Warranties and Representations
Republic warrants and represents that it is aware of , and familiar with, City's SRRE and requirements of SB 1383, that it is familiar with City's Solid Waste stream, and that it has the ability to and will provide sufficient Diversion programs and services to ensure the City meets or exceeds (i) the minimum Diversion requirements per Section 8.8.2 of this Agreement; (ii) the contamination limits and levels listed in Section
8.15 of this Agreement; and, (iii) implementation of one hundred percent (100%) of the Diversion described in this Agreement. Republic warrants, represents, and guarantees it shall do so without imposing any costs or fees other than those set forth herein and those provided for in Exhibit A or otherwise authorized by City pursuant to this Agreement.
8.9.2 Mutual Cooperation
City and Republic shall reasonably cooperate in good faith with all efforts by each other to meet City’s Diversion and other compliance requirements imposed by AB 939, SB 1383, and all other Applicable Laws. The City and Republic acknowledge that SB 1383 allows CalRecycle to impose fines and penalties on ei ther City, Republic , or both for failure to comply with SB 1383 requirements in the timeframes contained in SB 1383 and the regulations promulgated thereto. City agrees it will file such petitions and
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applications as may be reasonably requested by Republic for time extensions in meeting Diversion goals, or for other exceptions from the terms of AB 939, SB 1383, or other Applicable Laws.
8.9.3 Waste Reduction and Program Implementation; Facility, State, and County Reporting Republic shall implement the programs identified in the City ’s SRRE and Household Hazardous Wastes Element (HHWE) and all Diversion programs contained in this Agreement immediately upon the Effective Date thereof, and shall implement all programs required by any amendments or modifications thereto. In meeting this obligation, Republic shall be mindful of and comply with all requirements of the County Agreement, including specifically, without limitation, the requirements thereof generally relating to: (i) the delivery of Solid Waste only to Facilities that provide quarterly certifications of Solid Waste delivered, and (ii) the Disposal of residual Solid Waste that remains after Recycling , composting, and other processes at Processing Facilities have been completed. Republic shall provide City with monthly, quarterly, and annual written reports in a form adequate to meet City’s Applicable Law-related filing and reporting requirements to CalRecycle and to the County of Orange throughout the Term of this Agreement, wherein City’s performance under the above programs shall be set forth in detail to the satisfaction of City. Republic shall be responsible to prepare, or assist City with the preparation of, all reports and other information as may be required by any agency, includi ng specifically the State of California, in order to comply with AB 939, SB 1383, and all other Applicable Laws. Republic shall reimburse City for any costs City incurs in appearing before CalRecycle and/or the County of Orange in relation to any reporting or other requirements..
8.9.4 CalRecycle Guarantee and Indemnification
Republic warrants and guaranties that it will carry out its obligations under this Agreement such that: (i) both it and City will at all times be in compliance with the fifty percent (50%) Diversion requirements of AB 939 as measured by the per capita Disposal calculation reported by CalRecycle, and (ii) City will meet or exceed the current diversion requirements (including, without limitation, amounts of Solid Waste to be Diverted, time frames for D iversion, and any other requirements) set forth in SB 1383, AB 939, and all amendments thereto including but not limited to AB 341 and AB 1826, existing as of the date of execution of this Agreement . In this regard, Republic agrees that it will, in addition to any other requirement contained herein, at its sole cost and expense:
(A) To the extent legally permitted, defend, with counsel approved by City, indemnify, and hold harmless City and City’s officials, employees, and agents from and against all fines and/or penalties and other liabilities which may be imposed by CalRecycle or any other regulatory agency if: (l) Republic fails or refuses to t imely provide information relating to its operations which is required pursuant to this Agreement, SB 1383, or AB 939, and such failure or refusal prevents or delays City from submitting reports required by SB 1383 and AB 939 in a timely manner; or , (2) the source reduction and R ecycling goals, D iversion requirements, program implementation requirements, contamination limits, or any other requirements of AB 939 and SB 1383 are not met with respect to the waste stream Collected under this Agreement;
(B) Assist City in responding to inquiries from CalRecycle within the timeframes required by SB 1383 for production of all documents required to be maintained in City’s Implementation Record for SB 1383 and all other requested information and documentation; (C) Attend CalRecycle site visits in City upon request of City;
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(D) Assist City in preparing for, and participating in, Cal Recycle’s biennial review of C ity’s SRRE pursuant to Public Resources Code Section 41825 (may be every two (2) years, or every (4) four years if City remains in compliance);
(E) Assist City in applying for any extension, including under Public Resources Code Section 41820, if so directed by City;
(F) Assist City in any hearing conducted by CalRecycle relating to City’s compliance with AB 939; (G) Assist City with the development of and implement ation of all public awareness and education program(s) required by CalRecycle or other agencies (in additional to those described in Exhibit G) that are consistent with the City’s SRRE and HHWE, as well as any related requirements of AB 939 and SB 1383;
(H) Provide City with Recycling, source reduction, Diversion, and other AB 939 related technical assistance;
(I) Implement all new, enhanced, or other Diversion programs, public outreach and education, and all other requirements contained in any c ompliance order issued to the City and/or to Republic by CalRecycle at any time during the Term and comply with all deadlines and timeframes contained in said compliance order(s);
(J) Subject to Applicable Law, b e responsible for and pay any fees, penalties or other costs imposed against the City by CalRecycle, and indemnify and hold harmless City from and against any fines, penalties, or other liabilities, levied against it for violation of AB 939’s and/or SB 1383’s Diversion requirements, or violation of any other provision of AB 939 and/or SB 1383, arising from or in any way related to Republic’s performance of its obligations under this Agreement.
8.9.5 Waste Generation/Characterization and Capacity Planning Studies Republic acknowledges that City must perform Solid Waste generation and D isposal characterization studies periodically to comply with the requirements of AB 939 , SB 1383, and other Applicable Law.
Republic agrees to participate and cooperate with City and its agents and to accomplish studies and data collection and prepare reports, as needed and directed by City, to determine weights and volumes of Solid Waste Collected and characterize Solid Wast e generated, disposed, transformed, Diverted, or otherwise handled/Processed to satisfy the requirements of AB 939 and other Applicable Law.
On request of Manager, or at least one (1) time annually, Republic shall perform, and allow City to observe, waste characterizations to determine the percentage of residue and the percentage of landfill Diversion in an applicable waste stream using the applicable materials Processing system. Republic shall provide the City with at least thirty (30) days written notice prior to conducting the waste characterization study. At least forty-five (45) days prior to the waste characterization study unless otherwise approved by the City, Republic shall submit a written random sampling and waste characterization methodology to the Manager for written approval. The methodology shall include the following minimum requirements:
(A) At least five (5) days of sampling from five (5) different loads;
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(B) A randomized sampling methodology that results in at least two hundred and fifty pounds (250 lbs.) of material being sampled (and sorted) for each load sampled from five (5) or more randomly selected locations on the load;
(C) The types of commodity groups into which the samples will be sorted; and, (D) The methodology by which the results of the audit will be applied to tonnage reports.
Republic shall coordinate with the City to select the routes and material streams that will be selected for the waste characterization studies. Prior to the implementation of the co-collected food scraps and yard trimmings program in as noted on Exhibit H, Republic shall conduct a waste characterization study of the residential Discarded Materials to determine the baseline amount of recoverable O rganic Waste in the Discarded Materi als stream. The City may direct Republic to conduct additional annual waste characterizations of the residential Discarded Materials stream in subsequent contract years to assess how much Organic Waste remains in the Discarded Mat erials stream after program activation. In addition to the annual waste characterization study, the City may direct Republic to conduct up to two (2) additional waste characterizations per year for materials streams or routes of the City’s choosing. Republic shall submit a written report to the City within thirty (30) days of completing the waste characterization study showing the percentage of each commodity type sorted during the waste characterization. Republic acknowledges that the City is required by SB 1383 to coordinate with the County and participate in Organic Waste and Edible Food Recovery capacity planning studies. Republic shall participate and/or provide information to the City as needed for the City’s participation in such capacity planning studies.
This information and/or participation may include, but is not limited to: conducting or supporting waste characterization studies; providing information regarding existing and potential new or expanded capacity in Republic’s operations for the Collection, Transport, Transfer, or Processing of Source Separated Recyclable Materials and Source Separated Organic Materials; and, any other information deemed necessary by the City or County for purposes of the study. Republic shall respond to requests for information or participation from the City within thirty (30) days, unless another timeframe is otherwise specified or authorized by the City.
8.9.6 Implementation of Additional Diversion Services
In the event City does not meet the current Diversion goal of fifty percent (50%) imposed by AB 939 with respect to all Solid Waste generated in City as described in Sections 8.8.2 and 8.9.4, Republic shall notify the City as soon as reasonably possible , and City may direct Republic to perform additional services (including the implementation of new D iversion programs) or modify the manner in which it performs existing services, and Republic agrees to do so at no additional charge. Pilot programs and innovativ e services which may entail new Collection methods, and use of new or alternative Solid Waste Processing and Disposal technologies, are included among the kinds of changes which City may direct ; provided, however, that Republic shall be entitled to receive additional reasonable compensation for the new services required by the City to meet D iversion requirements greater than the fifty percent ( 50%) City Diversion goal under AB 939.
8.9.7 Mandatory Recycling and Organic Materials Program Requirements Republic shall provide reporting to City necessary for the City to meet mandatory Recycling and Organic Waste program requirements in accordance with AB 939, SB 1383, AB 341, and all other Applicable Laws. Reports that may be requested by City include, but are not limited to, a list of Customers (including
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permanent Roll-off Box Customers) that neither have their Discarded Materials P rocessed, nor receive Collection and Proces sing of Recyclable Materials nor Collection and Proces sing of Organic Materials from Republic. This assistance shall be provided for no additional compensation.
Republic and City shall meet and confer in good faith to determine a fair and reasonable adjustment to the maximum rates set forth on Exhibit A for any new programs not included in this Agreement. If City and Republic negotiate in good faith but cannot agree upon terms of a new program or the cost of the program, the matter will be decided by a stipulated hearing officer as described in Anaheim Municipal Code Section
1.12.110.0106. The hearing process shall be as described in Section 1.12.110 of the Anaheim Municipal Code.
8.10 Additional Services
As part of the consideration for entering this Agreement, Republic shall provide th e following additional services, receiving no more than the indicated compensation (see Exhibit A), if any:
8.10.1 Monitoring and Cleaning of Bin Enclosures
Republic shall work with the Manager in identifying and resolving continual problems with overflow ing Containers or Container enclosures, and/or other unsanitary conditions caused by Customers. Republic shall clean out (including removing Solid Waste, sweeping, or other service as directed by City) any overflowing Containers or Container enclosures within City within twenty-four (24) hours of notification by City. Republic may bill for any such services, when they are required by City to provide these services, in an amount not to exceed the rates in the approved rate schedule.
8.10.2 Abandoned Item Collection
Republic shall Collect and Divert or Dispose of Bulky Items abandoned in the City’s right -of-ways.
Republic shall Collect abandoned items directly from the right -of-way within twenty -four (24) hours, excluding Sundays and holidays , of discovery by Republic or request of City. If any abandoned Bulky Item is inaccessible or unable to be safely Collected , Republic will provide an update to the City staff within one (1) hour so City staff can provide support and develop a plan to safel y Collect the item . If necessary, the City may request that Republic provide support to Collect the item, such as Republic ’s truck returning to the site with City personnel to safely remove the item. Republic shall photo-document all non-Collected abandoned Bulky Items and include the photos in follow up reports to City staff.
Republic drivers shall report to dispatch and then make arrangements to return to site of non-Collected Bulky Items to prevent Customer complaints to City from reaching City departments other than the Public Works Department regarding abandoned Bulky Items. Republic shall provide a weekly report to the City upon request or as indicated by the Manager including but not limited to; date of Collection, address or location, items not removed with photo , and any relevant driver notes . Republic may only invoice City for the per ton costs permitted in accordance with Section 13.1.6; no additional compens ation shall be paid under this Section.
8.10.3 Assistance for Special Events and Large Venues
At the request of City, Republic shall, free of charge, assist P ersons designated by City (whether City employees, private individuals, or schools) who are responsible to organize or coordinate special events (including but not limited to concerts, festivals, carnivals, parades, or sporting events) or events in Large Venues (including but not limited to Anaheim Convention Center and Honda Center) in the
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implementation of Diversion programs for said special events. Republic will assist with reporting and planning needs to provide Recycling and Organic Materials Collection service and Diversion as may be useful in meeting the requirements of AB 2176 and SB 1383, and in lowering Disposal quantities generated at such events at no additional charge. Republic shall be responsible for assisting event sponsors with preparing and submitting to City a waste reduction and Recycling p lan prior to such events, and within thirty (30) days following each such event shall assist with the submittal of a waste characterization report listing the amount of each material Collected for D isposal and Recycling at the event. Republic shall, free of charge, for City events only, provide all necessary Recycling services (including Collection, Processing, Disposal of residue, and provision of all necessary Containers and other equipment needed) at said events. Upon City request, Republic will, at its own expense, staff booths at such events, and develop, produce and distribute outreach material promoting Recycling and Diversion strategies.
Republic shall provide Recycling, zero waste, and Organic Materials Diversion planning to Large Venues and Events or high profile conventions such as N ational Association of Music Merchants (“N AMM”) show and other conventions or carnivals as selected by the Manager.
8.10.4 Holiday Trees
For a reasonable period (as determined by City and for at least three (3) weeks), agreed to by City and Republic, following December
25 each year, Republic shall, free of charge, pick up all holiday trees placed out for Collection by Customers. Republic shall instruct Customers that they are required to remove tinsel, ornaments, and flocking from trees prior to placing for Collection. Republic shall Process all holiday trees that are properly set out for Collection as Organic Waste in accordance with Exh ibit E. Such trees shall not be comingled with other Solid Waste and shall be delivered to a proper facility for Processing, rather than Disposal, as required by the provisions hereof. In addition, Republic will allow holiday trees to be collected after the three (3) week holiday tree Collection period as “ Bulky Items;” such Collection shall count towards the three (3) Bulky Item pickups per year at no additional charge.
8.10.5 Compost Giveaway
Republic will sponsor one (1) annual Compost give-a-way event on a Saturday, which may be coordinated with America Recycles Day and/or Earth Day, at which residents shall receive free Compost. Republic shall maintain records of the amount of Compost distributed to residents and shall provide a minimum of sixty (60) tons of Compost per event, and report that amount to the City after each event.
8.10.6 Provision of Recovered Organic Waste Products
(A) General. Upon City request, Republic shall assist the City to achieve the requirement for recovered Organic Waste specified in SB 1383. Upon request, Republic shall:
1. procure and provide to the City California derived Compost and/or Mulch; and/or,
2. purchase Renewable Natural Gas obtained from California derived sources. (B) Republic Services shall perform the following activities:
1. Bulk Compost and/or Mulch for City Use. If requested by City, Republic Services shall provide to the City bulk Compost, Mulch, or both to assist the City to achieve the City’s recovered Organic Waste product purchasing requirements as needed to comply with SB 1383.
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The City will notify Republic Services the City’s needs for delivery of Compost, Mulch, or both, throughout each calendar year including the desired tonnage of each material. Republic Services shall deliver Compost, Mulch, or both, at an agreed upon date and time by the Manager to any accessible location within City limits. The City will specify the material type (i.e., Compost, Mulch, or both) to be provided and will review the quality specifications provided by Republic of the selected material type for any given application. Republic shall be entitled to compensation for actual costs of providing Compost and/or Mulch. Republic shall provide City with copies of supporting documentation, such as invoices from Compost/Mulch producers, for the purchase of Compost/Mulch, and transportation invoices from providers that deliver the Compost/Mulch. City shall remit compensation directly to Republic Services through payment of monthly invoices submitted by Republic.
2. Use of RNG. Republic shall use reasonable business efforts to use California -derived Renewable Natural Gas in Collection Vehicles per Section 9.2. (C) SB 1383 Procurement. Republic agrees that all RNG, Compost, Mulch, or a combination of the products provided through this Agreement shall comply with the municipal procurement requirements of SB 1383, including being generated from California Organic Waste products, as defined by SB 1383 for each applicable material type.
(D) Upon City request, Republic shall assist the City in development of a plan to meet the per capita California Organic Waste Products procurement requirements of SB 1383.
8.10.7 Company War ranty of Recovered Organic Waste Products Republic shall provide assurance through the execution of a liability waiver stating that all recovered Organic Waste products provided by Republic and used within the City are free from pathogens and inorganic waste material that may be harmful to the health and welfare of the City and its constituents, and also meet in accordance with standards of CalRecycle and subject to the United States Composting Council guidelines requiring testing demonstrating that fecal coliform levels of less than one thousand (1000) MPN per gram of dry Compost or Salmonella less than three (3) MPN per four (4) grams of dry Compost. Republic shall indemnify and hold harmless the City against any claims arising from contaminated recovered Organic Waste products provided by Republic, as set forth in Section 26.
8.10.8 Generator Waiver Program Coordination
A. Types of Generator Waivers:
1. G eneral. City may grant waivers described in this Section to Generators that impact the scope of Republic’s provision of service for those Customers. Waivers issued shall be subject to compliance with SB 1383 Regulatory requirements, pursuant to 14 CCR Section 18984.11, or other requirements specified by the City.
2. De Minimis Waivers. The City may waive a Multiple-Unit Dwellings’, Commercial Business’, or its Property Owner’s obligation to comply with some or all of the Source Separated Recyclable Materials and Organic Materials requirements set forth in this Agreement, SB 1383 regulations, and the City Municipal Code if the Multiple-Unit Dwelling, Commercial Business, or its Property Owner provides documentation or the City has evidence demonstrating one of the following de minimis conditions:
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a. The Multi-Family’s or Commercial Business’ total Solid Waste Collection service is two (2) cubic yards or more per week, and Recyclable Materials or Organic Materials subject to Collection in a Blue Container or Green Container comprises less than twenty (20) gallons per week, per applicable Container, of the Multi -Family’s or Commercial Business’ total waste; or,
b. The Multi ple-Unit Dwelling’s or Commercial Business’ total Solid Waste Collection service is less than two (2) cubic yards per week, and Recyclable Materials or Organic Materials subject to Collection in a Blue Container or Green Container comprises less than ten (10) gallons per week, per applicable Container, of the Multi -Family’s or Commercial Business’ total waste.
3. Physical Space Waivers. The City may waive a Multi ple-Unit Dwelling’s , Commercial Business’, or its Property Owner’s obligation to comply with some or all of the Source Separated Recyclable Materials or Organic Materials service requirements set forth in this Agreement, SB 1383 Regulations, and the City Municipal Code if the Multi-Family, Commercial Business, or its Property Owner provides documentation, or the City has evidence from its staff, Republic, licensed architect, or licensed engineer demonstrating that the Premises lacks adequate space for Blue Container(s) and/or Green/Brown Container(s).
B. Republic Review of Generator Waiver Requests. Requests Submitted to Republic. Generators may submit City developed waiver application requests for de minimis waivers or physical space waivers to Republic. Republic shall within thirty (30) calendar days review the Generator’s waiver application and inspect the Generator’s Premises to verify the accuracy of the application. Republic shall provide documentation of the inspection, including photo-documentation and Republic’s recommendation to approve or deny the waiver request, and send this information to the City within fifteen (15) calendar days of completion of review of the Generator’s waiver application for the City’s review and approval. The City ultimately retains the right to approve , deny, and/or further investigate any application, regardless of Republic’s recommendation. Republic shall report information regarding waivers reviewed on a monthly basis, in accordance with Section 23.2.
C. Re
public Change in Customers’ Servi ce Levels. When the City grants a waiver to a Generator, the City shall notify Republic within fifteen (15) calendar days of the waiver approval with information on the Customer and any changes to the service level or Collection service requirements for th e Customer. Republic shall have seven (7) days to notify City of a Customer’s s ervice level for adjustment to the Billing Statement, as needed.
D. Wai ver Reverification . It shall be the responsibility of Republic to verify that the Generators with de minimis or physical space constraint waivers continue to meet the waiver requirements set forth in this Section. Republic shall conduct such reverifications of waivers throug h inspection of each Generator’s Premises and review of applicable records at least once every five (5) years for de minimis and physical space constraint waivers. Pursuant to Section 23.2, Republic shall maintain a record of each waiver verification and provide a monthly report to the City documenting the waiver reverifications performed and recommendations to the City on those waivers that Republic concludes are no longer warranted. The City shall make a final determination of the waiver eligibility of Generators.
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E. Republic Recordkeeping of Generators Granted Waivers. Upon Republic request, no more than twelve (12) times per year, the City shall provide Republic an updated listing of waivers approved by the City, including the Generators’ names, mailing address, service address, and type of waiver.
Republic shall maintain waiver-related records and report on waiver verifications pursuant to Section
23.2. Republic’s waiver recordkeeping software shall be compatible with the City’s system.
8.10.9 Automati c Subscription of Services to Commercial and Multiple-Unit Dwellings Republic shall execute the implementation plan included in Exhibit H that provides automatic subscription of services to the City’s Commercial and Multiple-Unit Dwelling Customers subject to mandatory requirements for Commercial Recycling and/or Organic Materials. This plan shall achieve full compliance with Applicable Laws and regulations including, but not limited to, AB 939, AB 341, AB 1826, and SB 1383 in alignment with the timeline the City submitted to CalRecycle. Automatic subscription of services shall not apply to the City’s Commercial and Multiple-Unit Dwelling Customers that have been granted waivers or exemptions described in the City of Anaheim Municipal Code or who otherwise c omply through other methods such as Self-Hauling, third-party Recycling and/or Organic Waste programs, or other compliance approaches consistent with Applicable Law.
8.11 Special Services
If Customer requests Republic to provide, unique services for which rates have not been established, and that are beyond services contemplated under the scope of this Agreement, Republic may provide such services under the following provisions. Rates shall be reviewed and approved by Manager prior to provision of such services to ensure that the services are not covered by the rates and service descriptions contained herein, and that the rates to be charged are reasonable. Rates included in Exhibit A include ancillary services involved in the provision of services described in this Agreement. Maximum rates for such “Special Services,” if approved, shall be based on Republic’s actual and reasonable costs incurred in doing so. Republic shall notify the Manager of any such services prior to such time as they are provided in order to allow the City an opportunity to conduct necessary inspections, review the proposed rate, and impose appropriate regulations. Additional services shall not be provided by Republic without City’s approval.
8.12 Processing and Performance Guarantees
(A) Priority Utilization of the Approved Recyclable Materials Processing Facility. Republic shall utilize the Approved Recyclable Materials Processing Facility to the full extent of its capacity in accordance with good engineering practice to receive, Process, and T ransfer City Solid Waste. In the event at any time and for any reason that the Approved Recyclable Materials Processing Facility is unable to receive, Process, and Transfer all Discarded Materials Collected by Republic from the City and from any other Approved Recyclable Materials Processing Facility Customer or source , Republic shall accord complete priority to the receiving, Processing, and T ransfer of City Solid Waste over Discarded Materials from any such other Facility Customer or source. Republic shall Transport all Discarded Materials to the Approved Facility(ies) specified in Exhibit E and shall Transfer, Process, and Dispose of Discarde d Materials in accordance with this Section and Exhibit E. The Approved Facilities shall comply with the following requirements:
(1) Approved Transfer Facility. Republic’s Approved Transfer Facility shall be a Transfer Facility or operation that Transfers Source Separated Recyclable Materials, Organic Materials , and Black Container Waste Collected in accordance with this Agreement.
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(2) Approved Source Separated Recyclable Materials Processing Facility (Blue Containers).
Republic’s Approved Recycl ables Processing Facility shall be a Facility or operation that Processes Source Separated Recyclable Materials to recover materials designated for Collection in the Blue Container.
(3) Approved Organic Waste Processing Facility (Green Containers). Republic’s Approved Organic Waste Processing Facility shall be a Facility that Processes Organic Materials to recover Source Separated Organic Waste.
(4) Designated Disposal Facility (Black Containers). The Designated Disposal Facility shall be a Disposal Facil ity that accepts Black Container Waste Collected in accordance with this Agreement for Disposal.
(5) Allowable Organic Waste Facilities. If Republic is interested in Transporting Discarded Materials to a type of Facility that is not described above, Repub lic shall obtain written approval from the City and such Facilities or activities shall constitute a reduction in l andfill Disposal pursuant to 14 CCR Section 18983.1(b). If Republic is interested in using a Facility, operation, or activity not listed above and not specifically identified in 14 CCR Section 18983.1(b), Republic shall be responsible for securing the necessary approvals from CalRecycle, pursuant to 14 CCR Section 18983.2, that the Facility’s process or technology constitutes a reduction in landfill Disposal prior to the City’s final approval of such Facility or activity.
(6) Guaranteed Capacity and Facility Standards. Republic shall guarantee Transfer, Processing, and Disposal capacity at the Approved and Designated Facility(ies) to receive all Discarded Materials Collected by Republic throughout the Term of the Agreement and shall comply with Facility standards specified in Exhibit E.
(7) Other Facility Provisions. Exhibit E describes other Facility provisions including, but not limited to, use of Alternative Facilities, contamination monitoring of Discarded Materials received at the Approved and Designated Facilities, emergency conditions, and more. (8) Transportation and Facility Costs. Republic shall pay all costs for the Transport, Transfer, Processing, and/or Disposal of Discarded Materials Collected in accordance with this Agreement. Republic’s compensation for such services is included in the rates charged to Customers.
(9) Subcontractor. If Republic does not own or operate one or more of the Approved or Designated Facilities, Republic shall enter into a subcontract agreement with the owner or operator of such Approved and Designated Facility(ies) , and the requireme nts of this Section and Exhibit E shall pertain to the Subcontractor. In addition, any other Subcontractor requirements or obligations stated in other sections of this Agreement shall apply. (10) Transportation to Non-Approved Facilities Prohibited. If Republic Transports Discarded Materials to a Facility other than the Facilities in Exhibit E or an Alternative Facility without prior City approval, Republic’s failure to comply may result in assessment of liquidated damages.
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(B) Performance Guarantees . Republic shall observe, perform and comply with the performance guarantees in accordance with their respective terms, and pay any liquidated damages set forth in Section 18.7 hereto on account of any failure of performance. (C) A llocation of Facility Perform ance. The Parties acknowledge that, because Republic utilizes the Approved Recyclable Materials Processing Facility to provide Solid Waste H andling and management services to several Approved Recyclable Materials Processing Facility customers, and because Solid Waste from all such other Approved Recyclable Materials Processing Facility customers is in most instances commingled with City Solid Waste for P rocessing and Transfer, it will be necessary to allocate the performance results and costs of the Approved Recyclable Materials Processing Facility among numerous parties. The need for such allocations will arise, for example and without limitation, (a) in determining compliance with the p erformance guarantees set forth in this Agreement, (b) determining tonnages to be reported to regulatory agencies including but not limited to CalRecycle and the County of Orange, (c) in allocating the amount of residue and unprocessed City Solid Waste Transferred and Disposed of hereunder the cost of which the City is paying as part of the Service Fee, and (d) in allocating the cost impact of a Change in Law among the City and the other Approved Recyclable Materials Processing Facility customers. The system for allocating the Approved Recyclable Materials Processing Facility performance shall be fair, reasonable, and equitable among all the Approved Recyclable Materials Processing Facility customers, and shall not impose any result, burden, or obligation on the City which is inconsistent with the terms and provisions of this Agreement, and shall not favor Republic over the City and all other Approved Recyclable Materials Processing Facility customers, taken as a whole. No agreement or arrangement (or performance thereunder) between Republic and any other Approved Recyclable Materials Processing Facility customer involving the Approved Recyclable Materials Processing Facility shall impair the ability of Republic to provide the services required by this Agreement.
8.13 Hazardous Waste
The Parties acknowledge that the Approved and Designated Facilities have not been designed and are not intended to be used in any manner or to any extent as a facility for the handling, transportation, storage , or disposal of Hazardous Waste, except Source S eparated household Hazardous Waste delivered to a designated portion of the Approved Recyclable Materials Processing Facility under the auspices of the county’s disposal program. Neither Republic nor the City shall countenance or knowingly permit the delivery of Hazardous Waste to the Approved or Designated Facilities . Republic shall diligently comply with the waste screening practices and procedures set forth in this Section hereof and Exhibit D for purposes of Hazardous Waste identification and removal. Republic shall use reasonable efforts to identify any Person responsible for delivery to or abandonment at the Approved or Designated Facilit ies of any Hazardous Waste and to require such Person to remove such Hazardous Waste and bear all costs and liabilities associated therewith. The City shall diligently enforce all Applicable Laws of the City prohibiting the delivery of Hazardous Waste to the Approved or Designated Facilit ies, and both the City and Republic shall take all reasonable steps necessary to seek the enforcement of all other Applicable Laws regarding such delivery. If Republic discovers that Hazardous Waste has been delivered to the Approved or Designated Facilities, it shall give immediate notice of such discovery to the City and to all other appropriate governmental authorities. Immediately upon receipt of such notification, Republic shall, in the most expeditious manner possible in the circumstances and at its sole cost and expense, cause such Hazardous Waste to be cleaned-up, removed from the Approved or Designated Facilities, and transported to and d isposed of at a landfill or other disposal site lawfully permitted to receive and dispose of such
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Hazardous Waste, and shall have full responsibility and liability for or in connection with or as a result of the delivery of Hazardous Waste to the Approved or Designated Facilities and the clean -up, removal, transportation, disposal, storage or Processing thereof.
8.14 Code Enforcement, National Pollutant Discharge Elimination System (NPDES) Compliance, CalRecycle Assistance
Republic shall provide the City with digital photographs of improperly used Containers to City for use in code enforcement. Republic shall assist the City to maintain compliance with NPDES provisions by removing leaking Containers or leaking vehicles from service until they are repaired. Republic will provide the City assistance with any of Republic’s obligations under this Agreement affected by requirements imposed on the City by agencies administering and enforcing Applicable Laws, including but not limited to, CalRecycle, the State Water Resources Control Board, and the Regional Water Quality Control Board.
8.15 Contamination Monitoring
8.15.1 Contamination Monitoring Procedures
8.15.1.1 General
This Section describes the protocol for Prohibited Container Contaminants to be used by Republic in conducting contamination monitoring required by Sections 8.15.2 and 8.15.3.
8.15.1.2 Container Inspection Method
Republic shall u tilize the following method for Prohibited Container Contaminant (“Contaminants”) inspections:
Physical Container Inspections. Republic’s route audit personnel shall lift the Container lid and observe the contents. If any bags (plastic or kraft bags) or boxes are present that contain any materials of any type, Republic personnel shall utilize proper equipment and wear proper safety gear (including but not limited to gloves, work boots, goggles, long sleeved uniforms, a safety vest , and appropriate headgear) and may utilize a “claw ,” “rake, ” or other suitable equipment to open the bags and boxes and determine the contents. Upon finding Prohibited Container Contaminants in a Container, Republic shall follow the contamination noticing procedures and contaminated Container handling protocols set forth in Section
8.15.1.3. 8.15.1.3 Actions upon Identification of Prohibited Container Contaminants (A) Record Keeping. The driver or other Republic representative shall record each event of identification of Prohibited Container Contaminants in a written log or in the on-board computer system including date, time, Customer’s address, type of Container (Blue, Green, or Black Container); and, maintain photographic evidence, if required. Driver or Republic representative shall submit this record to Republic’s Customer service department, and Republic’s Customer service department shall update the Customer’s account record to note the event, if the documentation of the on-board computer system did not automatically update the Customer’s account record. (B) Identification of Excluded Waste. If Republic’s personnel observe Excluded Waste in an uncollected Container, Republic’s personnel shall record that observation and immediately inform their route
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supervisor. Republic shall follow protocols specified in Section 8.15.1.3.C. The route supervisor shall investigate and initiate applicable action within one (1) Business Day or sooner if the Excluded Waste may cause immediate danger.
(C) Courtesy Pick-Up Notices. Upon identification of Prohibited Container Contaminants in a Customer’s Container, Republic shall provide the Customer a courtesy pick-up notice.
The courtesy pick -up notification shall: (i) inform th e Customer of the observed presence of Prohibited Container Contaminants; (ii) include the date and time the Prohibited Container Contaminants were observed; (iii) include information on the Customer’s requirement to properly separate materials into the ap propriate Containers, and the accepted and prohibited materials for Collection in the Blue Container, Green Container, and Black Container; (iv) inform the Customer of the courtesy pick-up of the Containers with Prohibited Container Contaminants on this occasion with information that Republic may assess contamination fees for Commercial Customers only; and, (v) shall include photographic evidence and a description of the way the Customer can access the photographic evidence via a QR code, photograph left on site, or by other method(s) acceptable to the City. Republic shall leave the courtesy pick-up notice attached to or adhered to the Generators’ contaminated Containers; at the Premises’ door or gate; or, subject to City’s approval, may deliver the notice by mail, e-mail, or text message.
The format of the courtesy pick-up notice shall be approved by the City Manager and must be a distinct color from the non-Collection notices.
Republic shall Collect the Containers with Prohibited Container Contaminants and Transport the material to the appropriate Approved or Designated Facility for Processing; or Republic may Collect the contaminated materials with Black Container Waste and Transport the contaminated materials to the appropriate Approved or Designated Facility for Disposal/Processing. If this occurs in more than two (2) occasions in a six (6) month period for a Customer, City may direct Republic to investigate the cause(s) of the c ontamination and perform the steps in Section 8.16 to bring t he Customer into compliance.
(D) Non-Collection Notices. Upon identification of Prohibited Container Contaminants in a Container in excess of standards agreed upon by the Parties or that contain Excluded Waste, Republic shall provide a non-Collection notice to the Generator. The non-Collection notice shall, at a minimum: (i) inform the Customer of the reason(s) for non-Collection; (ii) include the date and time the notice was left or issued; (iii) describe the premium charge to Customer for Republic to return and Collect the Container after Customer removes the Prohibited Container Contaminants; (iv) provide a warning statement that a Contamination Processing F ee may be assessed; and, (v) include photographic evidence of the violation(s).
Communications with Customer. Whenever a Container is not Collected because of Prohibited Container Contaminants, a Customer service representative or the Recycling Coordinator shall contact the Customer to discuss, and encourage the Customer to adopt proper Discarded Materials preparation and Source Separation procedures.
(E) Assessment of Contamination Processing Fees for Commercial Customers. If Republic observes ten percent (10%) or more Prohibited Container Cont aminants on more than one (1) occasion for
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Commercial and issued a courtesy pick -up notice on the initial occasion, Republic may impose a contamination fee for that Customer’s service level. The intent of contamination fees is to provide a behavioral tool to educate and prevent Customers from placing Source Separated Discarded Materials into the improper designated Container(s), as well as to cover the increased costs to Dispose of the contaminated loads. To ensure that the assessment of fees is to be used for the intended purposes and not as a form of revenue generation, Republic agrees that contamination fees shall not exceed one percent (1%) of Republic’s gross receipts in any calendar quarter. In the event that contamination fees exceed one percent (1%) of Republic’s gross receipts in any calendar quarter, the assessment of contamination fees shall be suspended immediately and indefinitely pending a program assessment by the City and Republic . Upon program suspension or at the request of the City at any time during the Term of the Agreement, City and Republic shall meet and confer regarding the application and effectiveness of contamination fees in accomplishing the behavior change. If the program is suspended due to excessive revenue generation, the City may require Republic to either: i) modify the program parameters; ii) modify the amount of the contamination fee; or, iii) return to the City any funds generated by the contamination fee that exceed one percent (1%) of Republic ’s gross receipts for a given period of time to be used for Recycling education and/or enforcement programming.
Failure to comply with the requirements of this Section 8.15.1 shall equate to Liquated Damages in accordance with Section 18.7.
Republic shall leave a Contamination Processing F ee Notice attached to the Generators’ contaminated Container(s). Republic must also deliver notice by mail to the bill payer’s address within twenty-four (24) hours of assessing the contamination fee.
Republic shall Collect the material in Containers with Prohibited Container Contaminants and Transport the material to the appropriate Approved or Designated Facility for Processing or Disposal, as appropriate for the Discarded Material type.
Disposal of Contaminated Materials. If Republic observes Prohibited Container Contaminants in a Generator’s Containers, Republic may Dispose of the Container’s contents provided Republic complies with the noticing requirements in Section 8.15.1.3.C above. (F) Contamination Processing Fee Notice. “Contamination Processing Fee Notices” shall be in a format approved by the City Manager. Republic shall notify the City in its monthly report of Customers for which contamination Processing fees were assessed per Section 8.15.1.G.
Each Contamination Processing Fee Notice shall, at a minimum: (i) describe the specific material(s) of issue; (ii) explain how to correct future set outs; and, (ii i) i ndicate that the Customer will be charged a Contamination Processing Fee on a separate invoice to be sent by Republic. (G) Contamination Reporting Requirements
(1) Container Contaminant Log. The driver or other Republic representative shall record each event of identification of Prohibited Container Contaminants in a written log or in the on-board computer system including, but not limited to: date, time, Customer’s address, type of Container, and photographic evidence. Photographic evidence by the driver or other Republic
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representative will be forwarded to City staff at the time it is provided to a Customer via digital means.
(2) Contaminant Fees Assessment Report. Additionally, on no less than a weekly basis, Republic’s Government L iaison shall update the Customer’s account records to note the contaminant event(s) as identified by driver(s). Republic shall maintain records and report to the City monthly on contamination monitoring activities and actions taken, consistent with the submittal timing and content requirements of Section 23. Failure to meet the requirements of this Section, shall be subject to liquidated damages as identified in Section 18.7. (3) M
onthly Report. The monthly report shall include, but is not limited to: list of Customers that were assessed charges; photographic evidence of each contamination event(s) where a fee(s) was assessed if requested by Customer or City for identified occurrences; verification processes to assure accurate fee assessment; date of notification, form(s) of notification given to Customer; list of efforts made in educating the Customer that was assessed a fee; list of Customer Complaints in response to fee assessment; Republic’s response and actions taken in response to Customer Complaints; and, the dollar amount of contamination fees assessed during the reporting period. Failure to meet the requirements of this Section, shall be subject to liquidated damages as identified in Section 18.7.
8.15.2 On-Going Contamination Monitoring by Route Personnel Republic shall assist on an ongoing basis in minimizing contamination by helping to educate Customers on acceptable and non-acceptable materials through ongoing education and outreach efforts and through on-going monitoring of the contents of Collection Containers. The ongoing contamination monitoring shall be performed by Republic using the method described in Section 8.15.1.
8.15.3 Prescribed Contamination Monitoring
(A) Route Review Contamination Monitoring by Republic
(1) Methodology and Frequency. Commencing at the beginning of the Agreement Term, Republic shall, at its sole expense, conduct route reviews for Prohibited Container Contaminants in Collection Containers in a manner that is deemed safe by Republic ; is approved by the City; and, is conducted in a manner that results in all Collection routes being reviewed annually or more frequently.
Republic shall conduct route reviews that include inspection of the contents of Customers’ Collection Containers for Prohibited Container Contaminants in a manner such that a minimum of Containers on each and every hauler route are randomly inspected annually to meet the requirements of SB 1383. Republic shall develop a route review methodology to accomplish the above Container inspection requirements and such methodology shall comply with the requirements of 14 CCR Section 18984.5(b) and includes a schedule, route lists, and route maps for each calendar year of the Agreement Term. Republic shall submit its proposed route review methodology for the coming year to the City no later than December 15 of each year describing its proposed methodology for the next calendar year and schedule for performance of each route’s annual review. Republic ’s proposed route review methodology shall include not only its plan for Container inspections, but shall also include its plan for prioritizing the
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inspection of Customers that are more likely to be out of compliance. City and/or CalRecycle will review and approve the proposed methodology. Republic may commence with the proposed methodology upon approval.
If the City and/or CalRecycle notifies Republic that the methodology is inadequate to meet the requirements of 14 CCR Section 18984.5(b), Republic shall, at its sole expense, revise the methodology and, after obtaining City or CalRecycle approval, conduct additional hauler route reviews, increased Container inspections, or implement other changes using the revised procedure. If Republic ’s proposed methodology meets the requirements of 14 CCR Section 18984.5(b), but has been deemed inadequate by the City, Republic shall, at the expense of the City, revise the methodology and implement the necessary changes using the revised procedure.
The c ity may request, and Republic shall accept, modifications to the schedule to permit observation of the hauler route reviews by the City . In addition, Republic shall provide an email notice to the City’s Contract Manager no less than ten (10) Business Days prior to each scheduled h auler route review that includes the specific time(s), which shall be within the City’s normal business hours, and location(s).
(2) Noticing of Generators with Contamination, Non-Collection, and Disposal of Materials. Upon finding Prohibited Container Contaminants in a Container, Republic shall follow the contamination noticing procedures and contaminated Container handling protocols set forth in Section 8.15.1.3.
(3) M onthly Reporting Requirements . Republic shall maintain records and report to the City monthly on contamination monitoring activities and actions taken, in accordance with Section
23.2. 8.16 Inspection and Enforcement
8.16.1. Annual Compliance Reviews
8.16.1.1 General
Republic shall perform compliance reviews described in this Section, and at least annually, unless otherwise noted.
8.16.1.2 Commercial and Multiple-Use Dwelling Generator Compliance Reviews Annually, Republic shall complete a desktop compliance review of all Multiple -Unit Dwelling and Commercial Customers that generate two ( 2) cubic yards or more per week of Solid Waste, including Organic Waste, to determine their compliance with: (i) Generator requirements under the City’s Collection program; and, (ii) if applicable for the Generator, Self-Hauling requirements per 14 CCR Section 18988.3, including whether a Commercial Business is complying through Back-Hauling of Source Separated Recyclable Materials, Source Separated Blue Container Organic Waste, Source Separated Green Container Organic Waste, and/or Organic Waste. The compliance review shall mean a “desk” review of records to determine Customers’ compliance with the above requirements and does not necessarily require on-site observation of service; however, the City may request that Republic perform an on-site observation
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of service including photo-documentation in addition to, or in lieu of, the desk review if needed to obtain the required information.
If any Customer is found out of compliance during an annual compliance review, Republic shall follow the below process to encourage compliance.
Republic representatives shall assist customers with selecting appropriate Containers and Container sizing, identifying acceptable Recyclable Materials and/or Organic Materials for Collection, and resolving all logistical detriments to providing Recyclable Materials or Organic Materials Collection service.
Republic shall provide a written proposal to each non-compliant Commercial and Multiple-Unit Dwelling Customer annually. The proposal shall provide pricing for implementing Recycling service and reducing, or ‘right-sizing’, Refuse service to account for materials D iverted through Republic-provided program s; a proposed start date for the implementation of new Recycling or Organic Materials services; a description of the requirements of Applicable Laws and any relevant City ordinances; a plan for training staff and/or residents; and, any other components as directed by the City. A proposal template shall be approved by the City prior to the Effective Date of this Agreement. Electronic copies of all service proposals from site visits that are submitted to a Customer shall simultaneously be provided to the City in an electronic storage format acceptable to the City, such as a cloud -based file sharing system that can be accessed by the City or its representative.
If a Customer rejects the proposal from Republic or does not provide a response within thirty (30) days of Republic submitting the proposal, and, after at least three (3) documented attempts by Republic to follow- up with the Customer, the Customer continues to be non-responsive, Republic may refer the Customer to the City for enforcement action. Such a referral to the City by Republic for non-compliant accounts must include a written summary and timeline of the actions taken by Republic to implement an SB 1383- compliant program; a copy of the written proposal submitted to the Customer by Republic ; and , any written correspondence from the Customer to Republic. If, after the City begins enforcement proceedings against the Customer, the Customer agrees to comply and implement a compliant program, the City will notify Republic of the Customer’s willingness to comply and Republic will coordinate with the Customer to implement a compliant program.
8.16.1.3 Food Recovery Compliance Reviews
Annually, Republic shall assist the City in conducting inspections of Tier One Commercial Edible Food Generators, Food Recovery Organizations, and Food Recovery Services to assess compliance with the requirements of 14 CCR Chapter 12 Article 10 by providing support to City staff related to Customer data or service level information. Commencing January 1, 2024, and at least annually thereafter, Republic shall expand its Food Recovery compliance reviews to include inspections of Tier Two Commercial Edible Food Generators.
8.16.1.4 Compliance Review Process.
A. Number of Reviews. Republic shall conduct a sufficient number of compliance reviews, Republic route reviews, and inspections of entities described in this Section, to adequately determine the entities’ overall compliance with SB 1383, AB 1826, AB 341, and any other Applicable Law. The City reserves the right to require additional inspections, if the City determines that the amount of inspections conducted by Republic is insufficient. City may require Republic to prioritize inspections of entities that the City determines are more likely to be out of compliance.
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B. Non-Compliant Entities. From January 1, 2023, through December 31, 2023, when compliance reviews are performed by Republic pursuant to Section 8.16.1, Republic shall provide educational materials in response to violations. Republic shall provide these educational materials to the non - compliant Customers and Generators within five (5) working days of determination of non- compliance or immediately upon determination of non -compliance if such non -compliance is determined during an inspection or hauler route review. Republic shall document the non-compliant Customers and Generators and the date and type of education materials provided and report such information to the City in accordance with Section 23. Beginning January 1, 2024, Republic shall document non-compliant Customers and Generators determined through Republic ’s compliance reviews pursuant to Section 8.16.1, and shall report all Customers and Generators with SB 1383 violations to the City in accordance with Section 23. The City shall be responsible for subsequent enforcement action against the Generator.
C. Documentation of Inspection Actions. Republic shall generate a written and/or electronic record and maintain documentation for each inspection, hauler route review, and compliance review conducted, including the information described in Section 23.
8.17 Universal Enrollment Monitoring
Republic shall assist the City in ensuring that the enrollment of Generators in the City’s Collection program occurs in a timely and efficient manner. In accordance with Section 23, Republic shall maintain records and provide reports necessary for the City to verify the enrollment of Generators.
At least one (1) time per year, Republic shall reconcile and confirm universal enrollment of Generators by reviewing its Customer list and calculating the percentage of total Generators enrolled in City’s Collection program. As part of this analysis, Republic shall provide the City with a summary of any non- compliant Customers found, including the addresses of all Generators that were found to be non- compliant. Republic shall also provide a list of Generators that are not enrolled in the City’s Collection program due to the provision and approval of a waiver pursuant to Section 8.16.1.4, including the name, address, and type of waiver for each Generator. In accordance with Section 23, Reports and Adverse Information, Republic shall maintain records and provide reports on the Generators’ service level and list of non-enrolled Generators, and other information necessary for the City to verify the universal enrollment of Generators.
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SECTION 9. MINIMUM STANDARDS FOR REPUBLIC’S SOLID WASTE
HANDLING SERVICE COLLECTION VEHICLES
9.1 General, Purchase and Ownership of Vehicles
Republic shall provide vehicles for the Collection of Discarded Materials (“Collection Vehicles”) that are sufficient in number and capacity to efficiently perform the work required by this Agreement in strict accordance with its terms. Republic is expressly obligated to provide such Collection Vehicles and routes as are required to meet the service standards set forth herein. Republic shall have available on Collection days sufficient back -up vehicles for each type of Collection Vehicle used to respond to complaints and emergencies.
9.2 Air Quality/Fuel Requirements
Republic’s Collection Vehicles shall comply with all rules and regulations of the South Coast Air Quality Management District, the Air Resource Board, and any other regulatory body that may be in existence during the Term of this Agreement, as well as other federal, State, and local laws and regulations that may be enacted during the Term of this Agreement. Republic’s Collection Vehicles shall meet or exceed such air quality standards as may be adopted by the forgoing regulatory bodies during the Term.
Republic’s Residential and Commercial Collection Vehicles shall use compressed natural gas (“CNG”), liquefied natural gas (“LNG”), RNG, or electricity from the start of service under this Agreement.
At the City ’s discretion, and with advance written City -approval, Re public may use a non-diesel alternative fuel other than LNG or CNG, provided the option is fully compliant with all Applicable Laws and regulations.
Republic will annually investigate the ability to procure qualified RNG with their fueling provider and will implement the use of such fuel to the maximum available extent , provided that the premium cost of qualified RNG does not cause Republic’s total fuel expense to increase by more than ten percent (10%).
Republic shall make best efforts to seek and utilize RNG that is purchased through a wheeling agreement with a party(ies), provided that the wheeling agreement is for purchase of gas derived from Organic Waste that has been Diverted from a landfill and Processed at an in -vessel digestion facility that is permitted or otherwise authorized by 14 CCR to Recycle Organic Waste and meets SB 1383 requirements. Republic shall maintain records of amount of RNG purchased and shall report this information in accordance with Section 23. Republic shall agree to the City the right to report this RNG usage toward the City’s fulfilment of its annual recovered Organic Waste procurement target in accordance with 14 CCR Section 18993.1.
9.3 Specific Requirements
Republic is responsible for ensuring that each Collection Vehicle utilized by Republic in the performance of this Agreement meets the following minimum standards:
(A) Each Collection Vehicle shall be registered with the California Department of Motor Vehicles.
Republic’s Collection Vehicles shall comply with all South Coast Air Quality Management District rules, and the California Air Resource Board’s emission standards as they may be approved for Solid Waste Collection Vehicles, as well as other federal, State, and local laws and regulations that may be enacted during the Term of this Agreement.
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(B) Each Collection Vehicle shall be inspected regularly by Republic to ensure it meets the requirements of the California Vehicle Code and the California Highway Patrol. Republic shall inspect each vehicle daily to ensure that all equipment is operating properly. Vehicles that are not operating properly shall be taken out of se rvice until they are repaired and operate properly. Republic shall repair or arrange for the repair of all its vehicles and equipment for which repairs are needed because of accident, breakdown, or any other cause so as to maintain all equipment in a safe and operable condition. Manager may inspect vehicles at any reasonable time, and within five (5) calendar days of such a request.
(C) Each Collection Vehicle shall be equipped with devices capable of covering every open section of the vehicle in which Discarded Materials may be placed and, while operating upon the public rights- of-way, shall be covered so as to prevent any Solid Waste from falling or being blown or otherwise dislodged from the vehicle.
(D) Each Collection Vehicle shall be continuously maintained so as to both: (1) meet the highest industry standards with regards to efforts to prevent liquid from leaking and to the degree possible ensure each Collection Vehicle is watertight and leak-proof; and, (2) at all times comply with the provisions of all laws and regulations including the Vehicle Code and any applicable NPDES permit, with regard to materials leaking from Collection Vehicles. Republic shall be responsible to promptly clean any spillage or Solid Waste that leaks or otherwise escapes the veh icle, including application of absorbent within ninety (90) minutes. Republic shall report all spills to the City as soon as possible, and no later than the close of business on the same day. Republic shall provide pre and post clean up photos to the City by the next Business Day. The City shall be notified of any major spill impacting the flow of traffic so the City can assess the situation and provide support if necessary. (E) Republic shall paint each Collection Vehicle and shall not have any peeling decals , includ ing performing all necessary body work, on City request (not more than once every three (3) years) and as otherwise needed, and each Collection Vehicle shall be regularly cleaned, so that such vehicles do not become unsightly, as determined by the Manager. Each vehicle shall be painted with Republic’s colors and identifying information as required herein. (F) Republic’s name, local or toll-free telephone number, and a vehicle number shall be visibly printed or painted on both sides of each Collection Vehicle.
(G) Each Collection Vehicle shall be maintained in a clean and sanitary condition both inside and out and shall be washed at least once every seven (7) calendar days and steam-cleaned on a regular basis. (H) Each Collection Vehicle shall carry a broom, shovel, and oil absorbent and operable fire extinguisher, and shall be equipped with a communication device sufficient to allow the driver to communicate directly with Republic’s dispatcher and/or main office. (I) Each Collection Vehicle shall be kept in good repair and working order, and shall be equipped with appropriate safety equipment, including any new safety -related technologies that become standard in the waste industry, and at a minimum shall have a vid eo monitor based back -up system, or its equivalent. Republic shall keep a sufficient supply of replacement parts and equipment on hand to ensure adequate vehicle maintenance and timely and continuous performance of the services contemplated by this Agreement.
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(J) Republic shall inspect each Collection Vehicle daily to ensure that all equipment is operating properly and document any deficiencies. Collection Vehicles which are not operating properly shall be removed from service until repaired and operating properly. Republic shall perform all scheduled maintenance functions upon Collection Vehicles in accordance with the manufactu rer’s specifications and maintenance schedule. Republic shall repair, or arrange for the repair of, all of its vehicles and equipment for which repairs are needed because of accident, breakdown, or any other cause so as to maintain all equipment in a safe and operable condition. Republic shall keep accurate records of all Collection Vehicle maintenance and repair, recorded according to date and mileage, including signed verifications that repairs and maintenance has been properly performed, and shall make such records available to City upon request. Manager may inspect Collection Vehicles at any reasonable time, and within five (5) calendar days of such a request. (K) No Collection Vehicle shall be utilized if it is leaking brake, hydraulic, or other operating fluids.
Republic shall, within ninety (90) minutes, clean up any vehicle leaks or spills of fluids from their vehicles, as well as fluids, leaks, or spills from the Solid Waste being T ransported per the NPDES permit in effect at the time. No fluids shall be washed into storm drains at any time. All NPDES dry- cleaning measures shall be complied with. All Collection Vehicles must be equipped with absorbent for such cleanup efforts. Republic shall report all spills to the City within sixty (60 ) minutes and provide pre and post clean up photos. The City shall be notified of any major spill impacting the flow of traffic so the City can assess the situation and provide support if necessary. (L) Upon request, Republic shall furnish City a written inventory of all equipment, including Collection Vehicles, used in providing service pursuant to this Agreement. This inventory shall list all equipment by manufacturer, VIN number, date of acquisition, type, and capacity. (M) Republic shall utilize Collection Vehicles that meet the highest of industry standards concerning size, weight, nature, and type so as to not be unreasonably intrusive on the community with respect to noise, emissions, maneuverability, safety, and other fa ctors and to avoid or minimize pavement damage and wear and tear of the street or adjacent properties, as approved by the Manager. (N) Republic shall not load Collection Vehicles in excess of the manufactu rer’s recommendations or limitations imposed by S tate or local laws or regulations. Noise levels of equipment used for Collection shall not exceed seventy -five (75) decibels when measured at a distance of twenty -five (25) feet from the vehicle, five (5) feet from the ground.
9.4 Costs of Vehicle Operation
Republic shall be responsible for any costs incurred in connection with ensuring all Collection Vehicles comply with all A pplicable Laws and regulations, including without limitation any such laws and regulations that may now exist or hereinafter be ado pted relating to noise, fuels, emission standards, or weight limits.
9.5 City Inspection
City may cause or require any Collection Vehicle used in performance of this Agreement to be inspected and tested at any time and in such manner as may be appropriate to determine that the vehicle is being maintained in compliance with the provisions of this Agreement.
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9.6 Correction of Defects and Removal of Vehicles from Use within City Republic agrees to immediately remove from service, and replace or repair, to the City’s satisfaction, any Collection Vehicle which the Manager determines to be of unsightly appearance, unsafe, unsanitary, leaking, out of compliance with any law or regulation or this Agreement, in an unsatisfactory operating condition, or otherwise inappropriate for use; and, any such vehicle shall not be returned to service until the Manager gives his/her written consent for its return.
9.7 Residential Cart Collection Vehicle Replacement
9.7.1 Replacement Schedule for Residential Cart Collection Vehicles Parties agree rates to be paid to Republic in accordance with Exhibit A under this Agreement are inclusive of the cost for Republic to replace all Collection Vehicles used to Collect from Residential Cart Customers under the following required replacement schedule:
Each and every Residential Cart Collection Vehicle shall be replaced with a new Collection Vehicle no less frequently than every ten (10) years after placement of a new vehicle in service . Provided Republic can provide the City with verification that the replacement vehicle purchase order was placed prior to each vehicle’s ten (10)-year anniversary of being first placed into service , City will grant Republic a one (1) year grace period to replace existing ten (10)-year old vehicles with new vehicles prior to assessing liquidated damages in Section 18.7.
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SECTION 10. REPUBLIC’S SOLID WASTE HANDLING SERVICE
PERSONNEL
10.1 Uniforms
Each of Republic’s Collection employees shall wear a clean uniform bearing Republic’s name.
10.2 Identification of Employees
Republic shall provide identification badges, business cards, or similar devices, for all of its employees, and all authorized subcontractors, who may make personal contact with residents of the City.
10.3 Employee List
Republic shall provide a list of current employees and authorized subcontractors to City upon request.
10.4 Driver’s License
Each employee operating a vehicle as part of their duties shall, at all times, carry a valid operator’s license for the type of vehicle they are operating. All employees who may have contact with Customers in the course of performing their duties shall be able to speak English.
10.5 Hiring of Illegal Workers Prohibited
Republic shall not hire or employ a ny Person to perform work for City or allow any P erson to perform work required under this Agreement unless such P erson is a United States citizen or is properly documented and legally entitled to be employed within the United States. Republic shall verify , through E-Verify (or, if E-Verify is no longer available, through a comparable electronic database maintained by the United States government), that all P ersons employed by Republic are eligible to work in t he United States. Republic shall require all of its subcontractors to similarly verify that all Persons employed by such subcontractors are eligible to work in the United States. Republic shall certify to City its compliance with the requirements of this section.
10.6 Discontinued Use of Unsatisfactory Employees
No employee shall continue to have any involvement whatsoever with regard to any work in any way relating to or arising from this Agreement if Manager gives notice to Republic that such employee is determined by Manager to be discourteous, di sorderly, inefficient, or otherwise objectionable (provided the term “otherwise objectionable” shall not permit Manager to “ban” an employee for reasons that violate public policy or a P erson’s established civil rights); and, further, Manager shall give a reason for requesting the “ban” of any employee from engaging in work related to this Agreement.
10.7 Training and Legal Compliance
Republic shall provide and document operating and safety training that meets minimum California Division of Occupational Health and Safety (“OSHA”) standards for all personnel, and shall comply with all federal and California OSHA laws and regulations applicable to its employees and personnel.
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10.8 Customer Service
10.8.1 Local Office; Local Participation
Republic maintains an office located at 1131 North Blue Gum Street in Anaheim. No change in this location shall occur without City’s approval if such change would result in Republic not having an office within twenty-five (25) miles of City’s City Hall. Said office shall be open and maintain office hours at a minimum, from 7:00 a.m. to 6:00 p.m. Monday through Friday, and 7:00 a.m. to 3:00 p.m. Saturday with phone communication only, holidays identified in Section 8.1.6 excepted. At least one (1) responsible and qualified representative of Republic, capable of communicating in English, shall be present and available during all times that an office is required to be open as noted above (“ Office Hours ”), for personal communication with the public, and a similarly qualified P erson shall be available for communication with the public by phone during any times other than Office Hours when Collection is occurring.
10.8.2 Telephone Customer Service Requirements
(A) Republic shall maintain a toll -free telephone number that rings at a n office within North Orange County at all times during Office Hours. English and Spanish speaking personnel will be available during Office Hours to assist Customers with telephonic inquiries. All such personnel shall be polite and responsive, and shall be sufficiently knowledgeable, and have the authority to respond and/or advise Customers seeking assistance. Republic’s telephone system shall be adequate to handle the volume of calls typically experienced on the busiest days. Republic shall make reasonable attempts to answer all phone calls within five (5) rings. If a call has been placed on hold for three (3) minutes, the caller will either be switched to a message center that shall be responsible to obtain the caller ’s address and phone number, or a Customer service representative will obtain the Customer’s address and a number at which the call can be returned. Republic shall make at least three (3) attempts within the next twenty-four (24) hour period to return the call, with the first such attempt not more than one (1) hour after the caller leaves the message. If Republic is unsuccessful in contacting the Customer after following this procedure, Republic will maintain a record of the unsuccessful attempts. (B) Republic shall provide City with a twenty -four (24) hour emergency number to a live P erson, not voicemail.
(C) Republic shall record Customer complaints regarding Customer service personnel in accordance with Section 10.8.3. Customer service representati ves receiving multiple complaints are to be transferred from Customer service duties performed under this Agreement. (D) In the event of telephone outages, Republic shall notify the Man ager within thirty (30) minutes of an outage and will ensure that in coming calls are routed to answering systems, with messages promptly addressed upon resumption of telephone service.
10.8.3 Complaint Documentation
(A) All service complaints shall be directed to Republic. Republic shall log all complaints received by telephone, mail, email, or other means of communication and said log shall include the date and time the complaint was received, the name, address, and telephone number of the caller, a description of the complaint, the name of the employee recording the complaint, and the action taken by Republic to respond to and remedy the complaint.
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(B) All written Customer complaints and inquiries shall be date-stamped when received and shall be initially responded to within one (1) Business Day (Monday through Friday) of receipt. Republic shall log action taken by Republic to respond to and remedy the complaint. (C) Daily logs of complaints shall be retained for a minimum of twenty -four (24) months and shall be available to City at all times upon request and provided with monthly reports. (D) All Customer service records and logs kept by Republic shall be available to City upon request. City shall, at any time during regular Office Hours, have access to Repub lic's Customer service department for purposes that may include monitoring the quality of Customer service or researching Customer complaints. Republic shall provide to City on an annual basis or upon request a complaint log, in a form approved by the City, that includes all of the complaints logged pursuant to this Section, the complainant, and the resolution.
(E) SB 1383 Regulatory Non-Compliance Complaints. For complaints received in which the Person alleges that an entity is in violation of SB 1383 Reg ulations, Republic shall document the information listed in Section 23.2.H . Republic shall provide this information in a brief complaint report to the City for each SB 1383 Regulatory non-compliance complaint within seven (7) calendar days of receipt of such complaint, and a monthly summary report of SB 1383 Regulatory non- compliance complaints in accordance with Section 23.2.
(1) Investigation. Republic shall commence an investigation, within thirty (30) days of receiving a complaint involving a Customer or a Generator in the following circumstances: (i) upon Republic receipt of a complaint that an entity may not be compliant with SB 1383 Regulations and if City determines that the allegations against the entity, if true, would constitute a violation of SB 1383 Regulations; and, (ii) upon City request to investigate a complaint received by City, in which City determines that the allegations against the entity, if true, would constitute a violation of SB 1383 Regulations. Republic is required to investigate complaints against Customers and Generators, but not complaints against Food Recovery Organizations, Food Recovery Services, and other entities regulated by SB 1383 Regulations.
Republic shall investigate the complaint using one or more of the following methods:
(a) Reviewing the s ervice level of the entity that may not be compliant with SB 1383 Regulations;
(b) Reviewing the waiver list to determine if the entity has a valid de minimis or physical space constraint waiver;
(c) Reviewing the Self -Haul registration list to determine if the entity has registered and reviewing the entity’s reported Self-Haul information;
(d) Inspecting Premises of the entity identified by the complainant, if warranted; and/or, (e) Contacting the entity to gather more information, if warranted. (2) Reporting. Within seven (7) Business Days of completing an investigation of an SB 1383 Regulatory non-compliance complaint, Republic shall submit a complaint investigation report
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that documents the investigation performed and recommends to City on whether or not the entity investigated is in violation of SB 1383 Regulations based on Republic ’s investigation.
The City shall make a final determination of the allegations against the entity.
10.8.4 Resolution of Customer Complaints
(A) Disputes between Republic and its Customers regarding all services provided in accordance with this Agreement shall be attempted to be resolved by the P arties based on the terms and provisions of this Agreement. In the event the P arties are unable to resolve the dispute, it shall be referred to and resolved by the Manager. In such case, the Manager’s decision shall be final and binding. (B) Intervention by the City is not a condition precedent to any rights or remedies third parties might otherwise have in any dispute with Republic. Nothing in this Section is intended to affect the remedies of third parties against Republic.
10.8.5 Government Liaison
Republic shall designate in writing a "Government Liaison" who shall be responsible for working with City and/or City's designated representative(s) to resolve Customer complaints. City shall have the right to approve Republic's choice for a liaison and, if City is not satisfied in any manner with the performance of the Government Liaison, to have an alternative liaison assigned.
10.8.6 Republic Management Personnel
(A) City Right of Approval . Manager shall have the right to approve any management personnel of Republic or the Guarantor assigned to work with the City. In addition, at the request of Manager, if Manager is not satisfied in any manner with the performance of the management personnel then currently assigned to work with the City in connection with the Agreement, Republic shall assign different personnel.
(B) Re public Right of Appeal . Republic shall have the right to appeal any proposed change in management personnel to the City Manager. The decision of the City Manager shall be final.
10.9 Education and Public Awareness
10.9.1 General
(A) Republic acknowledges and agrees that education and public awareness are critical, key , and essential elements of any efforts to achieve the requirements of AB 939 and other Applicable Laws.
Accordingly, Republic agrees to expand public and Customer knowledge concerning needs and methods to reduce, reuse, Recycle, and Divert Solid Waste and to cooperate fully with City in this regard.
(B) Republic shall maintain a program of providing information relevant to needs and methods to reduce, reuse, and Recycle Solid Waste, and City, upon request from Republic, may include such information in a method approved by Manager. All public education materials shall be approved in advance by Manager. Republic shall keep a record of all promotional and public education materials utilized, and shall provide annual reports to City, summarizing its public outreach and education efforts.
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(C) At a minimum, Republic shall conduct school assemblies and promote Recycling and composting through presentations and printed and/or electronic educational materials to the Chamber of Commerce, homeowners associations, construction contractors , other civic groups and/or other groups as identified by the Manager. Republic shall , upon City request, provide articles on topics such as Recycling , Organic Waste Diversion, local Collection programs, and the environment for local newsletters.
(D) If requested to do so by City, and at no charge to City, Republic shall insert any printed material prepared by City into Republic’s billings to Republic -billed Customers. City shall not request Republic to include any printed material in its bills if such material is of a size, shape, or weight that would increase Republic’s postage costs or if such material does not fit into the envelopes utilized by Republic to mail the bills. Any printed material to be included in the bills to be mailed by Republic shall be provided to Republic within a reasonable time in advance of Republic’s scheduled mailing date, such that the insertion of such material into billing envelopes does not delay their scheduled mailing date.
(E) The City reserves the right to assign the design, production, and printing logistics to Republic or take on responsibility of such tasks at their discretion. (F) Republic shall provide the City with an annual public education plan no later than sixty (60) days prior to commencing New Year for both Parties to mutually agree and fulfill. Each public education plan shall specify the target audience for services provided, include upcoming promotions for ongoing and known special events, identify program objectives, individual tasks, public education materials to be distributed, opportunities for expanded partnerships, and a timeline for implementation. The City shall be permitted to provide input on each annual public education plan.
Republic shall meet with the City to present and discuss the plan, review the prior year’s activities (including sponsorships and services provided to City-sponsored events), and determine whether community activities and the provision of services to the City reflect the needs of City staff and the City Council. City shall be allowed up to thirty (30) calendar days after receipt to review and request modifications. The City may request, modifications to be completed prior to approving the plan, modifications will be mutually agreed upon. Republic shall have up to thirty (30) Business Days to revise the plan in response to any agreed upon changes by the City Contract Manager. The first Agreement year outreach plan is included as Exhibit G.
(G) Upon request, the City and Republic’s Contract Manager may meet up to one (1) time per month to discuss services, outreach, and educational campaigns and discuss any proposed changes or adaptations to the annual public education plan.
10.9.2 On-going Education Requirements
(A) In order to promote public education, in addition to any other materials it develops, Republic shall create the following public education materials and programs at its expense, which will be distributed as indicated below and annually updated per Section 1 0.9.1 and Exhibit G. All of these materials and programs shall be produced and/or available in English and Spanish languages . All written materials shall be approved by Manager in advance of distribution, and shall bear the City seal and website address, unless otherwise approved by the City:
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(1) Annual Notices - In collaboration with the City, not less than once each calendar year during the Term of this Agreement, Republic shall prepare and distribute to each Residential, Multiple-Unit Dwelling , Commercial, and/or industrial Customer a newsletter/ brochure providing relevant information regarding Republic’s services. At a minimum the information shall include, but is not limited to : information regarding access to and use of available services; Collection schedules; holiday Collection schedules; Republ ic's Customer service numbers; procedures to begin and terminate services; an d, information promoting and explaining available programs, such as Recycling, Organic Materials Diversion, holiday tree and Bulky Item Collections, the availability of Household Hazardous Waste, U-Waste and E- Waste Collection, and the proper handling and D isposal of such Solid Waste. City may also contribute content and specify information to be included in the notice. This brochure shall also be printed and made available in English and Spanish languages and any other languages as requested by the Manager through the use of QR codes.
Not less than once per year during each Agreement Year, and at the initiation of Residential Food Waste Collection, Republic shall review , and City shall prepare and distri bute to each Generator in the City , a mailing that includes information specified in SB 1383 (14 CCR Section 18985.1(a)). The Commercial brochure shall include information related to Edible Food Generator requirements.
(2) How-To Brochure – Republic will prepare and distribute a brochure packet to new Customers when they start service. This packet will contain updated information on how to use the Republic-provided Containers, when, where, and how to place Solid Waste for Collection, and who to contact with service or billing questions. This brochure shall also be printed and made available in English and Spanish languages.
(3) Corrective Action Notice - Republic 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 of such items. This form shall include Republic’s contact information, such as website, email, and phone number with hours of operation. Notice shall be printed and made available in English and Spanish languages and any other languages as requested by the Manager.
(4) Courtesy Pickup Notice – Republic shall develop the courtesy pickup notice for Contaminated materials as described in Section 8.15.1.3.C.
(5) Republic Representative - Republic shall retain on its staff an individual who shall , as part of his or her job function, routinely visit civ ic groups, school assemblies, homeowne rs' associations, and other similar groups to promote and expla in the Recycling and other programs that Republic offers, and participate in demonstrations and civic events. (6) Web Site Page – Republic shall dedicate one (1) page of its web site to City services, which shall include at least the following information : a listing of contact names and numbers for Customer service office/phone hours ; information on Bulky Item Collection; c ollection of household Hazardous Waste, E-Waste and U-Waste Collection schedules, including holiday schedules; the Recycling Anaheim program or other City programs ; required information to comply with Applicable Laws; and, the procedures to begin and terminate services. Republic
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shall assist the City in establishi ng a link to this web page from the C ity's web site and shall ensure that access to Republic’s City-dedicated website is seamless. Within six (6) months of execution of this Agreement, Republic website shall include: 1) an on-line Customer satisfaction survey and comment card , and 2) the ability for Custom ers to submit on-line service requests.
(7) Funding of City Newsletters – Republic will fund fifty percent (50%) of six (6) newsletters.
Three (3) unique (Single-Family, Multiple-Unit Dwelling, and Commercial) newsletters to be distributed two (2) times per year. Funding will include, but not be limited to, expenses for printing, postage for every door direct mailing, translation services, graphic art services, or photos. Newsletters may include, and funding would be required to cover, inserts such as magnets. In addition to the funding, Republic shall submit articles and other material for newsletters, as requested by City.
(8) School Materials – As approved by M anager, Republic shall develop, print and distribute to teachers and students educational materials (not curriculum) regarding Recycling and other Solid Waste-related topics.
(9) School Assemblies – City shall contact schools to offer educational material s and offer to conduct assemblies to be provided by Republic . Republic shall conduct assemblies for all requesting schools every school year.
(10) Handouts – At City request, Republic shall develop, print , and distribute outreach materials for distribution at community events and presentations. (B) Republic may allow Customers direct billed by Republic to request mailings electronically in lieu of hardcopies. Republic shall be required to provide an annual report to the City of Customers that have requested to receive mailings electronically. Customers will be provided the option to request electronic mailings annually.
10.9.3 Approved Recyclable Materials Processing Facility Tours Republic shall conduct public tours of the Approved Recyclable Materials Processing Facility as and when reasonably requested by the City.
10.9.4 Composting Classes
Republic shall promote and conduct, at Republic’s expense, four (4) composting classes per calendar year for City residents. Republic may independently organize the events or work with the Fullerton Arboretum or another agency as approved by the Manager to promote and provide the classes. City may require that these classes be conducted in conjunction with City composti ng events, and will have final approval on event dates. At the completion of each composting class, Republic to submit to the City a completed report including the number of Anaheim attendees as part of the Education Program Report in Section 23.2.A.10.
10.9.5 Community Garden Assistance
Republic shall, for Term of the Agreement, assist with various community gardens to be selected by City; City may change gardens to be sponsored at any time throughout the Term. Assistance may include both
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financial assistance to support operation and maintenance of the garden, and the provision of free Compost or Mulch. This assistance does not require Republic to acquire land for community gardens.
10.9.6 Recycling Coordinators and Route Auditors
Republic shall provide a minimum of five and one-half (5.5) full-time Recycling Coordinators (forty (40) hours per week each) and one and thirty-eight hundredths (1.38) full-time Route Auditors (forty (40) hours per week each) dedicated to the City that will be available to field and resolve complaints, to conduct school assemblies, visit community groups, provide training in all Recycling and Diversion programs to Residential, Multi -family, and Commercial Customers, complete the contamination monitoring requirements in Section 8.15, and visit Customers in an effort to increase Recycling efforts throughout the City. Said Coordinators shall be in addition to the “Republic Representative” described in Section 10.9.2 (4). On a monthly basis, Republic shall provide the Manager with an accounting of hours spent by task and by Recycling Coordinator and Route Auditors. City reserves the right to prioritize tasks in order to achieve complian ce with all Applicable Laws including but not limited to SB 1383. Republic shall immediately notify City within two (2) Business Days of any changes to the Recycling Coordinator(s) or Route Auditors.
10.9.7 Medication Takeback Awareness Program
Republic will assist the City in increasing awareness of medication takeback programs provided by local pharmacies, or programs offered by other government entities. Promotional activities will include posting on Republic’s website.
10.9.8 Food Recovery Assistance
(A) Annually, Republic shall assist the City in identifying all Commercial Customers that meet the definition of a Tier One Commercial Edible Food Generator or Tier Two Commercial Edible Food Generator and City will provide a list of such Customers to Republic upon request, which shall include: Customer name; service address; contact information; Tier One or Tier Two classification; and, type of business (as it relates to the Tier One Commercial Edible Food Generator and Tier Two Commercial Edible Food Generator definitions).
(B) Annually, Republic shall cooperate with City and/or its designees to conduct inspections of Tier One Commercial Edible Food Generators, Food Recovery Organizations, and Food Recovery Services to assess compliance with the requirements of 14 CCR, Chapter 12, Article 10. Commencing January 1, 2024, and at least annually thereafter, Republic shall expand its assistance to include Tier Two Commercial Edible Food Generators.
(C) Republic shall include on their website information for Comm ercial Edible Food Generators , as follows:
(1) Information about Republic’s and City’s Edible Food Recovery program; (2) Information about the Commercial Edible Food Generator requirements under 14 CCR , Chapter 12, Article 10;
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(3) Information about Food Recovery Organizations and Food Recovery Services operating within the City, and where a list of those Food Recovery Organizations and Food Recovery Services can be found; and,
(4) Information about actions that Commercial Edible Food Generators can take to prevent the creation of Food Waste.
(D) Republic may provide the education information required by this Section (subsection 10.9.8.C above) by including it with regularly scheduled notices, education materials, billing inserts, or other information disseminated to Commercial Premises.
(E) Republic shall cooperate with the implementation, expansion, or operation of Food Recovery efforts in the City, Food Recovery Organizations, and/or Food Recovery Services.
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SECTION 11. ANNUAL CERTIFICATIONS
11.1 Certifications To Be Provided
Within thirty (30) days after the end of each Agreement Year, Republic shall certify to the City as of such date the following, and shall have support for the certification available upon City request:
(A) A list of all Residential Premises, Commercial Premises, and bus stop locations in the City and the classification of service each Premises receives has been provided to the City in accordance with the annual reporting requirements in Section 23.3 hereof;
(B) As confirmed by the City/ Republic exception report, written notice has been provided to the Manager for all changes in the classification of service requested by the owner of any Single-Family Dwelling Premises or any Commercial Premises and changes to all Multiple-Unit Dwelling Premises have been approved in writing by the Manager in accordance with Section 8.2.7 hereof; (C) All rates for services not specifically identified in this Agreement have been provided to the City, and all required Manager approvals have been obtained prior to charging the Customers in accordance with Section 8.11 hereof;
(D) All rates for Roll-off Box service have been provided to the City, and all required Manager approvals have been obtained prior to charging the Customers in accordance with Section 13.2.2 hereof; (E) The commingling of any Solid Waste for which the City is not responsible for Disposal or Processing costs with any Solid Waste for which the City is responsible for the Disposal or Processing costs has not occurred.
(F) The current route books and maps , including bus stop locations , have been kept current and made available to the Manager for inspection and copying in accordance with Section 27.1.2 hereof; (G) All performance guarantees are being observed, performed, and complied with in accordance with Section 8.12 hereof;
(H) All logs, records, manifests, bills of lading, or other documents have been maintained in accordance with Section 27.2 hereof;
(I) All tags, records, lists, or reports have been maintained in accordance with Section 8.1.11 hereof; (J) The consent of the Manager has been received for all subcontractors utilized for the performance of the services required by this Agreement in accordance with Section 16.5 hereof; (K) No rate contained in any element of the Collection Rate applicable to any of the particular Franchise services provided pursuant to this Agreement exceeded the rate charged by Republic for s the service component or Collection portion of the Single Family Dwelling basic rate in any of the cities listed in, and in accordance with, or as allowed by Section 13.12 hereof; (L) The waste screening practices and procedures have been complied with in accordance with Section
8.12 and Exhibit D hereof;
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(M) The allocation system utilized to identify the amount of r esidue and unprocessed City Solid Waste allocable to the City is fair, reasonable and equitable all in accordance with Section 8.12 hereof; (N) The current inventory of operating assets shall be provided to the City on request in accordance with Section 27.1 hereof;
(O) All insurance required by Section 15 for all operations conducted and provision of all services required pursuant to this Agreement has been maintained and proof of coverage thereof provided to the City in accordance with Section 15 hereof;
(P) A record of all service and billing complaints received by Republic, including the action taken, has been maintained in accordance with Section 10.8.3 hereof; (Q) All requested annual financial statements of Republic have been provided to the City in accordance with Section 27.5 hereof;
(R) All information has been provided to the City in accordance with Section 23.1 hereof; (S) A Republic event of default has not occurred due to a failure of Republic to perform the scheduled Collections of City Solid Waste during the recently ended Agreement Year in accordance with Section 18.1 hereof;
(T) The random sampling and waste characterization methodology in use has been approved in writing by the Manager in accordance with Section 8.9.5.
(U) Republic has fulfilled its public education and outreach responsibilities as detailed in the public education and outreach plan (based on Exhibit G template) approved by the City hereof; (V) Capacity and Processing requirements have been complied as required in Exhibit E hereof; (W) A record of all service activities and annual revenue from overflows was compiled and a report was provided that verifies revenue from overflow fees, in accordance with Section 8.7.2 hereof; (X) Republic paid the City any excess of Republic’s overflow fee revenue, only if overflow fees collected by Republic exceeded two hundred thousand dollars ($200,000) the last Agreement Year, in accordance with Section 8.7.2 hereof;
(Y) Republic fulfilled the minimum Diversion and customer participation compliance responsibilities as detailed and in accordance with Sections 8.8.2 and 8.8.3 hereof; (Z) Automatic subscription of services to Commercial and Multiple-Unit Dwellings requirements have been fulfilled by Republic, in accordance with Section 8.10.9 hereof; (AA) The revenue generated from contamination Processing Fees for Commercial Customers did not exceed one percent (1%) of Republic’s Gross Receipts in any calendar quarter in the most recent Agreement Year, and in accordance with, or as allowed by Section 8.15.1.3.E hereof;
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(BB) Republic fulfilled their responsibilities with the annual compliance reviews as detailed and in accordance with Section 8.16.1 hereof;
(CC) Republic fulfilled their responsibilities with the universal enrollment monitoring responsibilities as detailed and in accordance with Section 8.17 hereof;
(DD) Republic has investigated the ability to procure qualified RNG with their fueling provider in accordance with Section 9.2 hereof;
(EE) Republic has fulfilled its Recycling Coordinator and Route Auditor staffing requirements as detailed in Section 10.9.6.
11.2 Supporting Documentation for Certifications
City may request s upporting documentation for any or all of the certifications submitted under Section
11.1 and Republic, within ninety (90) days of request, shall provide City with supporting documentation in a format approved by City.
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SECTION 12. CITY FEES AND SERVICES
In addition to any other consideration set forth herein, as part of its consideration for entering this Agreement, and for the exclusive Franchise, right, and privilege to provide Solid Waste Handling Services within City as specified herein, Republic shall provide the following:
12.1 Host Fee
(A) Host Fee – Republic shall pay to the City a “ Host Fee” equal to one dollar and eighty-five cents ($1.85) per ton as of July 1, 2022, for all Solid Waste not covered by this Agreement ( “Non-City Franchised Tonnage”) delivered to Republic’s Approved Recyclable Materials Processing Facility for Processing and/or Disposal located within the City. Tonnage subject to such Host Fee would include all tonnage delivered by Republic , third party waste haulers, Commercial accounts , and public dump customers using the Approved Recyclable Materials Processing Facility.
Notwithstanding the above, brokered materials ( clean, Source S eparated Recyclables , typically baled, materials delivered to the Approved Recyclable Materials Processing Facility ready for sale and transfer to end markets ) shall not be subject to said Host Fees. This exclusion applies only to individual customers with whom Republic has a contract to directly purchase single-material Recyclables, and does not include mixed Recyclables or Recyclables Collected on Collection Area routes.
(B) P
ayment of Host Fee – Republic shall pay City the Host Fee on a monthly basis, payable not later than the 20 th of the month following the monthly reporting period. The Effective D ate of this Agreement shall become the effective start of the Host Fee payments. (C) H ost Fee Adjustment Factor – Host Fee shall be adjusted annually and shall equal to ninety percent (90%) of the change in the CPI – All Urban Consumers, not seasonally adjusted, U.S. city average, all items less energy (CUUR0000SA0LE) , measured as the percentage change from the month of December preceding the Agreement Year adjustment effective July 1 of each calendar year over the December CPI from twelve (12) months prior. In any one (1) year, this adjustment to the per ton Host Fee will be limited to a maximum increase of three percent ( 3%), with any increase rolled forward to subsequent years, to the extent that the change in any future year is three percent (3%) or less. In the event that the change in CPI is a negative value, the rate will not change for that year and the reduction will roll forward to off-set future increases. (D) H ost Fee Guarantee – Republic shall pay the City on an annual basis (July through June) the higher of the sum of the twelve (12) monthly Host Payments or one million five hundred forty-one thousand six hundred and sixty-seven dollars ($1,541,667) as of July 1, 2022, adjusted annually by the Host Fee Adjustment F actor under (C) above. If for any reason, the sum of the annual payments is not equal to or greater than one m illion five hundred forty-one thousand s ix hundred and s ixty-seven dollars ($1,541,667), as adjusted, Republic shall pay the City the difference prior to July 20 after the close of the Agreement Year.
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12.2 [Section Reserved]
12.3 Services at City Yards
Republic shall Collect all Discarded Materials (Refuse, Organic Materials, and Recyclable Materials) , excluding street sweeping debris , using Roll-off Boxes, Bins, or Carts as directed by the City, from the following City Yard locations at no additional cost to City or ratepayers:
• 400 E. Vermont Ave.
• 1627 S. Ninth St.
• 111 N. Piney St
• 2161 W. Crescent Ave.
• 600 S. Western Ave.
• 1561 S. Placentia Avenue
• 955 S. Melrose Street
If the City adds new additional locations or moves one or more of these locations, service will be provided at no additional charge at the new location.
12.4 City-Sponsored Event Collection
Republic shall provide Refuse , Recyclable Materials, and Organic Materials services, including Collection, Processing, and Disposal, at no additional charge to City for the following events:
• Cinco de Mayo
• Anaheim Fall Festival and Halloween Parade
• National Night Out
• Children’s Art Festival
• Fourth of July
• Tree Lighting and Street Festival
• Transportation Faire
• Pearson Park Theatre
Services include the provision of cardboard litter boxes, Source Separated Recycling, Source Separated Organic Materials Containers, and liners, as well as Bins and Roll-off Boxes. City may substitute similar event requirements if service is no longer required at one (1) or more of these events.
12.5 Neighborhood Cleanup Events
The Parties acknowledge that City periodically conducts neighborhood cleanup events designed to cleanup City Residential areas. Republic shall provide Containers, Collection, Recycling, Processing, and Disposal services for such event s, at no additional charge to City or Customers, for two hundred (200)
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Roll-off Boxes (includes Refuse, Recyclable Materials, and Organic Materials Collection) per calendar year, and in accordance with the approved rate schedule for all other Roll-off Box services, as requested for these events by Manager. Containers shall be delivered and removed as directed by the City. Republic shall offload and remove any excess debris in and around the Container area at no additional charge.
Republic shall provide an accounting of free services provided as requested by the Manager and at year- end.
12.6 Bus Stop Containers and Collection
City will initially purchase all City bus stop litter Containers ; City, at its option, may direct Republic to obtain and distribute the Containers and to bill City for the purchase cost. After new street litter Containers have been distributed, Republic will be responsible for repair and replacement of all such litter Containers as needed for the remainder of the Agreement Term. Republic will maintain an adequate supply of at least twenty (20) bus stop litter Containers on hand for distribution for new locations or to be used to exchange Containers while refurbished.
Republic will regularly Collect from up to three hundred and twenty -five (325) litter Container locations in the City as scheduled on Residential route, to be identified by City. Republic may receive per ton compensation under Section 13.1., Single F amily Refuse Transfer and Disposal Fee . No additional compensation for Collection service or other costs shall be provided.
12.7 Emergency Service
Republic will assist City at the City’s request with emergency Collection and Disposal service (in the event of major disaster, such as an earthquake, storm, tidal wave/ tsunami, riot, or civil disturbance), or as otherwise determined necessary by the City, by providing Collection V ehicles and drivers normally assigned to the City, at the rates provided in Exhibit A.
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SECTION 13. REPUBLIC’S COMPENSATION
13.1 Service Fee
13.1.1 Service Fee Defined
(A) Commencing with the first calendar month and for each month thereafter during the Term of the Agreement, the City shall pay to Republic a monthly Service Fee for Residential Premises and Commercial Premises s ervices provided by Republic and directly billed to the Customers by the City. Each component of the monthly Service Fee shall be computed in accordance with the provisions of this Se ction and may be adjusted from time to time as provided in this Agreement .
Although calculated by components, the monthly Service Fee is , and shall be, considered a single fee, consisting of the following components:
(1) Collection Fees – assessed per Customer based on service level or as otherwise noted below (a) Single Family Dwelling Collection Fee
(b) Multiple-Unit Dwelling Collection Fee
(c) Commercial Premises Refuse Collection Fee
(d) Commercial Premises Recycling Collection Fee
(e) Commercial Organic Materials Fees:
(i) Per hour of Collection,
(ii) Monthly O utreach per Customer, and
(iii) Per number of Containers (Carts or Bins)
(2) Tonnage Fees – assessed per ton based upon tons Collected (a) Single Family Refuse Transfer and Disposal Fee
(b) Single Family Source Separated Recycling Processing Fee (c) Single Family Organic Materials Processing Fees:
(i) Clean Yard Waste only, or
(ii) Commingled Source Separated Organic Materials (Food Waste and Yard Waste) (d) Multiple-Unit Dwelling and Commercial Premises Refuse Fee (e) Multiple-Unit Dwelling and Commercial Premises Source Separated Re cycling Processing Fee
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(f) Multiple-Unit Dwelling and Commercial Premises Source Separated Organic Materials Processing Fee
(B) City shall pay the monthly Service Fee with respect to each month during the Term hereof. Republic waives any right it has or may have at any time during the Term of this Agreement to seek to have the monthly Service Fee (as adjusted as applicable hereunder) increased under any theory of fact or law by any governmental body, except as expressly provided in the provisions of this Agreement.
13.1.2 Single Family Dwelling Collection Fee
The “Single Family Dwelling Collection Fee” is the amount payable to Republic for the Collection of Refuse, Recyclables, and Organic Materials from each City R esidential unit billed by the City , and the Transfer of said Solid Waste to the Approved Recyclable Materials Processing Facilit ies identified in Exhibit E for Processing and/or Transfer. Republic shall provide all services to Single Family Dwellings as required by this Agreement at rates which shall not exceed those set forth in the attached Exhibit A, which sets out the maximum rates that may be charged by Republic, as such maximum rates may be adjusted from time to time pursuant to the provisions of this Section.
The Single Family Dwelling Collection Fee component applicable in any month in any Agreement Year shall be equal to the sum of the number of Single Family Dwellings at which Republic provided Collection service in any such month, based on the number and type of City Discarded Materials Containers provided to such Dwellings, multiplied by the Service Fee rates in Exhibit A; provided, however the Manager may require or authorize modified service to Single Family Dwellings (such as Bin Service). In such event, the Manager shall specify the rate to be applied from Exhibit A. The actual amount paid to Republic for Single Family Dwellings shall be prorated for Dwellings that d id not have the same level of service for the entire month. The payment shall be one-thirtieth (1/30) of the monthly rate as set out in Exhibit A for each day service was in effect.
13.1.3 Multiple-Unit Dwelling Collection Fee
The “Multiple-Unit Dwelling Collection Fee” is the amount payable to Republic for Collection of Discarded Materials Container from City Multiple-Unit Dwellings billed by the City and the T ransfer of said Discarded Materials to an Approved Facility for Processing and/or Transfer. Republic shall provide all services to Multi ple-Unit Dwellings as required by this Agreement at rates which shall not exceed those set forth in the attached Exhibit A, which sets out the maximum rates that may be charged by Republic, as such maximum rates may be adjusted from time to time pursuant to the provisions of this Section. The Multi ple-Unit Dwelling Collection Fee component applicable in any month in any Agreement Year shall be equal to the number of Tips made in such month by Republic at Multiple-Unit Dwellings multiplied by the rate set forth in Exhibit A as may be adjusted from time to time.
13.1.4 Commercial Premises Collection Fees
13.1.4.1 Commercial Premises Refuse Collection Fee
The “Commercial Premises Refuse Collection Fee” component applicable in any month in any Agreement Year shall be equal to the number of Commercial Premises billed by the City receiving each classification of service, in the month, multiplied by the rate identified in Exhibit A, as may be adjusted from time to time. The totals for each classification (type of service) shall then be added , and the resulting sum shall equal the Commercial Premises Refuse Collection Fee component for the month. The actual amount paid
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to Republic for Commercial Premises Refuse Collection Fee shall be prorated for Commercial Premises that did not have the same level of service for an entire month. The payment will be one-thirtieth (1/30) of the monthly rate for each day service was in effect.
13.1.4.2 Commercial Premises Recycling Collection Fee
The “Commercial Premises Recycling Collection Fee” component applicable in any month in any Agreement Year shall be equal to the number of Commercial Premises b illed by the City receiving each classification of service, in the month, multiplied by the rate identified in Exhibit A, as may be adjusted from time to time. The totals for each classification (type of service) shall then be added, and the resulting sum shall equal the Commercial Premises Recycling Collection Fee component for the month. The actual amount paid to Republic for Commercial Premises Recycling Collection Fee shall be prorated for Commercial Premises that did not have the same level of service for an entire month. The payment will be one-thirtieth (1/30) of the monthly rate for each day service was in effect.
13.1.5 Commercial Organic Materials Collection Fees
The Commercial Organic Materials Collection Fees applicable in any month in any Agreement Year shall be as follows:
(A) “Commercial Organic Materials Collecti on Cost per Hour” - number of Collection hours for Commercial Organic Materials, in the month, multiplied by the rate identified in Exhibit A, as may be adjusted from time to time.
(B) “ Commercial Organic Outreach Cost per Customer” – total number of Customers receiving Commercial Organic Materials services, in the month, multiplied by the rate identified in Exhibit A, as may be adjusted from time to time.
(C) “ Commercial Organic Materials Co st per Container ” - total number of Containers subscribed to Organic Materials service broken out by Bins and Carts, in the month, multiplied by the rate per Bin and/or per Cart identified in Exhibit A, as may be adjusted from time to time.
13.1.6 Bulky Item and Abandoned Item Collection Compensation Republic shall Collect Residential Bulky Items per Section 8.2.8 and abandoned items per Section 8.10.2 at no additional charge except for per ton compensation paid in accordance with Section 13.1.6, with Bulky Item and abandoned item tonnage charged at Single Family Dwelling per ton rates.
13.1.7 Single Family Refuse Transfer and Disposal Fee
The “Single Family Refuse Transfer and Disposal Fee ” component applicable in any month in any Agreement Year shall be equal to the number of tons of City Solid Waste Collected by Republic from Single Family Dwelling Refuse Carts under Section 8.2.1, curbside as Bulky Items under Section 8.2.9, as abandoned items under Section 8.10.2, and from bus stops under Section 12.9 multiplied by the “Single Family Refuse” per ton rate as provided in Exhibit A as it may be adjusted from time to time pursuant to provisions of this Section. The Parties acknowledge that Republic is entitled to receive the Single Family Refuse rate as provided for each ton of City Solid Waste Collected by Republic (excluding Source Separated Recyclable Materials and Organic Materials ) from Single Family Dwellings (other than tons Collected pursuant to Special Services), including such tons which are Diverted from landfill Disposal.
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13.1.8 Single Family Source Separated Recycle Processing Fee The “Single Family Source Separated Recycle Processing Fee” component applicable in any month in any Agreement Year shall be equal to the number of tons of Source Separated Single Family Dwelling Recyclable Materials which Republic Collects from Single Family Dwellings under Section 8.2.4 in such month multiplied by the Single Family Recycling per ton rate as provided in Exhibit A , as it may be adjusted from time to time pursuant to provisions of this Section.
13.1.9 Single Family Organic Materials Processing Fees
The “Single Family Organic Materials Processing Fee s” component applicable in any month in any Agreement Year shall be equal to the number of tons of Source Separated Single Family Organic Materials which Republic Collects from Single Family Dwellings under Section 8.2.6 in such month multiplied by the Single Family Organic Materials per ton rates as provided in Exhibit A, dependent on the final site of delivery for the Organic Materials, as it may be adjusted from time to time pursuant to provisions of this Section.
13.1.10 Multiple-Unit Dwelling and Commercial Premises Refuse Fee The “Multiple-Unit Dwelling and Commercial Premises Refuse Fee” component applicable in any month in any Agreement Year shall be equal to the number of tons of City-billed Solid Waste which Republic Collects from Multiple-Unit Dwellings and Commercial Premises in such month multiplied by the per ton Bin Refuse Processing rate as provided in Exhibit A, as it may be adjusted from time to time pursuant to provisions of this Section 13. (City-billed Solid Waste excludes tonnage Collected by Republic while providing Republic-billed services such as Roll-off Box service.)
13.1.11 Multiple-Unit Dwelling and Commercial Premises Source Separated Recycling Processing Fee
The “Multiple-Unit Dwelling and Commercial Premises Source Separated Recycling Processing Fee” component applicable in any month in any Agreement Year shall be equal to the number of tons of City- billed Recyclable Materials which Republic Collects from Multiple-Unit Dwellings and Commercial Premises in such month multiplied by the per ton Commercial Source Separated Recycling Processing rate as provided in Exhibit A, as it may be adjusted from time to time pursuant to provisions of this Section
13. (City-billed Recyclable Materials excludes tonnage Collected by Republic while providing Republic- billed services such as Roll-off Box service.)
13.1.12 Multiple-Unit Dwelling and Commercial Premises Source Separated Organic Materials Processing Fee
The “Multiple-Unit Dwelling and Commercial Premises Source Separated Organic Materials Processing Fee” component applicable in any month in any Agreement Year shall be equal to the number of tons of City-billed Organic Materials which Republic Collects from Multiple-Unit Dwellings and Commercial Premises in such month multiplied by the per ton Commerc ial Source Separated Organic Materials Processing rate as provided in Exhibit A, as it may be adjusted from time to time pursuant to provisions of this Section 13. (City-billed Organic Materials excludes tonnage Collected by Republic while providing Republic-billed services such as Roll-off Box service.)
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13.2 Republic-Billed Services
13.2.1 Services to be Billed
(A) Republic will directly bill Customers only for the following services:
1. Temporary Bin Services (see Section 8.5).
2. Roll-off Box Services (see Section 8.3.1).
3. Approved extra services related to Roll -off Box and T emporary Bin Services included in Exhibit A.
4. Residential Bulky Item Collections in excess of three (3) per calendar year (see Section 8.2.9).
5. Special Services, if approved by City under Section 8.11.
13.2.2 Billing
Republic shall bill Customers no more than the total approved rate, in accordance with Exhibit A. No fees shall be charged for any services that have not been approved in advance by t he Manager. For rate adjustment purposes, these fees include separate 1) Collection, Processing, Transfer, and other, and 2) landfill components. Some rates may not include both components (see Exhibit A).
13.3 Rate Adjustment Methodology
13.3.1 Adjustment Factor
(A) Adjustments to the rate components include use of an “Adjustment Factor.” The Adjustment Factor shall be no greater than five percent (5%) and no less than zero percent (0%) in any year, with calculated changes over five percent (5%) or under zero percent (0%) rolling to a subsequent year’s adjustment. This Adjustment Factor is calculated based upon the weighted change in the following indices:
(1) “CPI-Based Index” – one hundred percent (100%) of the change in the Consumer Price Index – All Urban Consumers, not seasonally adjusted, U.S. c ity average, all items less energy (CUUR0000SA0LE)
(2) “Fuel-Based Index” - Producer Price Index – Commodities, not seasonally adjusted, Fuels and related products and power, natural gas (WPU0531)
(B) Initial indices are weighted as ninety-seven and thirty-five hundredths percent (97.35%) CPI-Based Index and two and sixty-five hundredths percent (2.65%) Fuel-Based Index. (C) The change in indices shall be measured as the annual average indices for the twelve (12) months ended the December preceding the effective date of the rate adjustment ver ses the annual average indices for the twelve (12) months ended the December twelve (12) months before that date , and weighted as follows (A+B=C):
(1) (% Change in CPI-Based Index) x (% weighting, initially 97.35%) +
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(2) (% Change in Fuel-Based Index) x (% weighting, initially 2.65%) = (3) Adjustment Factor (subject to the 0% to 5% adjustment range in any year) (D) Weightings for subsequent years shall be re-weighted by:
(1) Multiplying each component’s weighting by the annual change in that component; (2) Adding the result of that calculation to each component weighting.
These new weightings will no longer add to one hundred percent (100%). Proportionately adjust the new weightings to total one hundred percent (100%) for the subsequent year’s adjustment calculation as follows:
Example Re-Weighting Calculation for Subsequent Adjustment (5) Index Current
Weighting
% Change
in Index (1)
Adjustment
Factor (2)
Post-Adjustment
Weighting (3)
Re-Balanced
Weighting (4)
CPI-Based 97.35% 3.60% 3.50% 100.85% 97.34%
Fuel-Based 2.65% 4.00% 0.11% 2.76% 2.66%
Total 3.61% 103.61% 100.00%
(1) Change in average annual indices, 12-months ending December of recent year compared to 12-months ending December of prior year, for (i) CPI-Based Index and (ii) Fuel-Based Index as defined above. (2) Current Weighting multiplied by % Change in Index.
(3) Current weighting plus Adjustment Factor.
(4) Post-Adjustment Weighting for each index divided by Total Post-Adjustment Weighting. (5) Percentages shall be calculated to four decimal points as shown in the example above (for example, 3.61% is .0361, representing four decimal places).
13.3.2 Adjustments to Collection Fee Components
Commencing on July 1, 2024, and annually on each subsequent July 1, the Collection Fee components associated with any of the maximum rates set forth in Exhibit A shall be adjusted by Republic by multiplying such Collection Fee components by one (1) plus the Adjustment Factor to determine the new rate.
13.3.3 Adjustments to Processing, Transfer and Landfill Components (A) Commencing on July 1, 2024, and annually on each subsequent July 1, the following adjustments may be requested to each subcomponent of the fees described in Sections 13.1.7, 13.1.8, 13.1.9,
13.1.10, 13.1.11, and 13.1.12. These six (6) fees all have a P rocessing and/or Transfer component.
Only the fees in Sections 13.1.7 and 13.1.10 have a Disposal component, as shown in Exhibit A. (1) Processing and/or Transfer Component. The “Processing and Transfer Component” associated with any of the maximum rates set forth in Exhibit A shall be adjusted by Republic by multiplying such Processing and Transfer rate components by one (1) plus the Adjustment Factor to determine new rate.
(2) Lan
dfill Disposal Component. The “Landfill Disposal Component ” for fees described in Sections 13.1.7 and 13.1.10 shall be separately adjusted to reflect the percentage changes in the tipping fees imposed by the owner or operator of the Disposal Facilities.
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13.3.4 SPEC service
A SPEC rate may be charged by Republic under special circumstances approved in writing in advance by City, whereby a community requests specialized Collection of Residential Carts that requires a second crew member. As of the execution of this Agreement, this fee applies to only one (1) homeowners’ association and it is not anticipated to be applied elsewhere.
This rate shall adjust in a different manner than other rates. City will b ill this rate to the Customers and the Customer rate shall adjust by the same percentage as other Residential Customer rates billed by City as determined by the Man ager. The dollar increase in this rate to the Customer shall be evenly divided between the portion of the rate retained by the City and the rate p aid to Republic. For example, if this Customer rate is increased by ten cents ($0.10), the rate to Republic shall increase by five cents ($0.05).
13.4 Other Adjustments
The subcomponents of the Service Fee shall be increased or decreased, as the case may be, to take into account costs incurred or saved due to the following circumstances. All such cost adjustments shall be subject to cost substantiation, and shall be allowable only to the extent Republic is unable , through reasonable preventive or responsive measures, to mitigate the financial impact of the circumstances on its performance of the services required by this Agreement. City will reasonably consider requests related to:
(A) Any change in the location or nature of the Designated Disposal Facility by the City, with approval not to be unreasonably withheld. As of the Effective Date of this Agreement, Olinda Alpha Landfill operated by the County of Orange in the City of Brea is the Designated Disposal Facility; or, (B) Any Change in L aw that would financially impact the performance of the s ervices required of Republic pursuant to this Agreement (unless otherwise addressed in this Agreement), with approval by City not to be unreasonably withheld.
13.5 Collection, Processing, Transfer and Landfill Fee Calculations All fee calculations shall be rounded to the nearest whole cent ($0.01). All tonnage calculations shall be rounded to the second decimal point (1.01). All fee calculation percentages shall be rounded to the fourth decimal point (1.01%, or .0101). All fee calculations that require weekly data to be adjusted for monthly use shall multiply the weekly data by four and thirty-three hundredths (4.33). In the event fee calculations performed by Republic staff and the City staff result in minor differences due to computer program rounding, the fees may be manually recalculated by City staff as set forth in this S ection, based on the existing City-approved fees and the City’s recalculated rates shall be the final rates.
13.6 Submittal of Rate Adjustment Request
At least ninety (90) days prior to each July 1, Republic shall provide Manager with a revised Exhibit A reflecting the adjustments as calculated in Section 13.3 above, along with data supporting the basis for its calculations, so that th e City may administratively review and verify the accuracy of Republic’s calculations. If the new landfill Disposal rate, or other information to be published by a third party, is not published in time for inclusion in the request, Republic shall submit the request without the missing information by the required deadline, and will resubmit the request immediately upon publication of the delayed data; provided the initial submittal was timely and otherwise complete, this submittal will not be considered late. City is not required to address a ny other requests submitted after the deadline. No
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adjustments to rates shall become effective until the Manager confirms the accuracy of Republic’s calculations and the submitted revised Exhibit A.
If Republic does not submit adjusted rates at least ninety (90) days prior to each July 1, City may implement the adjustment itself, or waive Republic’s right to that year’s rate adjustment. If the Adjustment Factor would have been negative but for the zero percent (0%) floor, the Adjustment Factor calculated for the subsequent rate adjustment shall measure the change in indices from the previous implemented rate adjustment. If the change in the Landfill Disposal Component would have been negative, the subsequent rate increase shall measure the change in this component from the previous implemented rate adjustment.
13.7 Billing of the Monthly Service Fee
13.7.1 Billing Statement for Processing and Transfer, and Landfill Fee Components For each month, Republic shall render a Billing Statement to the City by the 20 th day of the following
month, which Billing Statement shall set forth a calculation of each component of the monthly Processing and Transfer, and Disposal Fees. The City shall pay these monthly fees due to Republic within twenty (20) days of the date of receipt by the City of the Billing Statement.
13.7.2 Determination of Collection Fee Component
Collection Fee component of Service Fee shall be determined based upon service unit counts in City’s billing system database. City will calculate and pay Republic for services provided the preceding month.
Parties will run monthly exception reports to reconcile service count differences that may occur between the City and Republic’s service databases and provi de updates to the other Party. Republic exception report must be provided to the City each month for reconciliation.
13.7.3 Billing Estimates and Adjustments
To the extent that the actual value of charge, credit, index value or any other item in any Billing Statement cannot be accurately determined at the Billing Statement date, such item shall be billed on a good faith estimated basis, reflecting actual operating experience and reasonable projections for the balance of the Agreement Year, and an adjustment shall be made to reflect the difference between such estimated amount and the actual amount of such item on the Billing Statement following the date on which Republic or City learns of the exact amount of such item.
13.7.4 Errors in Charges or Fees
To the extent errors by the City cause an underpayment or overpayment to Republic for fees, the City shall credit or debit Republic as far back as the dates of the errors can be reliably determined, but in no case greater than four (4) years. To the extent errors by Republic causes an underpayment or overpayment to Republic for fees, the City shall credit or debit Republic as far back as the dates of the errors can be reliably determined, but in no case greater than four (4) years. City is not required to credit Republic for Collection services when a failure by Republic to notify the City through normal procedures of service starts, stops, and changes causes the City to be unable to collect City charges from the Customers through the standard billing process.
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13.7.5 Billing Disputes
If the City disputes any amount billed by Republic in any Billing Statement, the City shall pay that portion of the billed amount which is not in dispute, and shall provide Republic with written objection within fifteen (15) days of the receipt of such Billing Statement, indicating the portion of the billed amount that is being disputed, and providing all reasons then known to the City for its objection to or disagreement with such amount. If the City and Republic are not able to resolve such dispute within thirty ( 30) days after the City’s objection, either party may refer such dispute to administrative review by a hearing officer in accordance with Section 20.1 herein . If any such amount is adjusted in Republic ’s favor pursuant t o agreement, mediation, or otherwise, the City shall pay the amount of such adjustment to Republic , with interest thereof at the Overdue Rate from the date such dispute amount was due to Republic to the date of payment in full of such amount. Nothing conta ined in this S ection shall limit the authority of any authorized officer of the City to raise a further objection to any amount billed by Republic pursuant to an audit conducted pursuant to Applicable Law.
13.8 Republic-Billed Customer Collection Procedures
Republic assumes the risk of non-payment for all services billed to Customer by Republic. Republic may discontinue service as set forth in this S ection. Customers billed by Republic that have not remitted required payments within thirty ( 30) days after the date of billing shall be notified in writing (or by electronic mail if Customer agrees) by Republic. The notification shall contain a statement that services may be discontinued fifteen (15) days from the date of notice if payment is not made before that time.
Upon receipt of the delinquent payment, Republic shall resume providing service.
13.9 No Authorization to Charge Customers; Exceptions
Republic shall have no right to, and shall not, impose any fee or charge on any Customer or other Person for services provided pursuant to this Agreement, except as provided for in Exhibit A as it may be adjusted from time to time, or with prior City approval in accordance with Section 8.11.
13.10 Republic Petition for Adjustment to Fees
Republic shall have the right to petition the City for adjustments to the fees which are in excess of those adjustments resulting from the application of the Adjustment Facto rs or otherwise provided for in the determination of the fees pursuant to Section 13 hereof. Any petition made by Republic shall specify the fee increase requested and the reason therefore. Republic shall also provide the City with any additional information requested by the City in connection with its review of the petition. The City shall have the right, in its sole discretion, to deny any petition made by Republic , or to provide for a fee increase in an amount less than that requested by Republic.
13.11 City Request for Reduction in Service Fees
In the event the City reasonably believes that the actual costs to Republic of meeting its obligations under this Agreement have escalated at a rate lower than the escalation resulting from the application of the Adjustment Factor, the City shall provide written notice thereof to Republic. The City and Republic shall undertake negotiations in good faith to (1) determine if the City’s belief relating to escalation is valid and (2) if so, reduce the Service Fee to the extent appropriate.
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13.12 Lowest Rate Guarantee
For the purposes of this Section, “Collection Rate” shall be defined as the rate the City pays to Republic for the service component or Collection portion of the Single Family Dwelling basic rate ; the Collection Rate does not include tonnage fees or Disposal costs . Notwithstanding any other provision of this Agreement, the Single Family Collection Rate applicable to any of the particular Franchise ser vices hereunder at any time shall not exceed the monthly basic Collection Rate charged by Republic, for similar services, to a Single Family Dwelling for three (3) Cart service (Refuse, Recyclables, and Organic Materials) to the c ities of Brea, Fullerton, Garden Grove, Placentia, or Yorba Linda. For purposes of calculating the Collection Rate in each of the cities above, the amount of any percentage-based fees that are applied to the Collection Rate and remitted to or retained by the cities shall be deducted from the Collection Rate. If Republic no longer services one or more of these cities, then that city shall be removed from the comparison. One-time or lump sum payments to cities shall not be included in this comparison.
13.13 Republic’s Assistance with City Billing
Republic shall provide any information or assistance reasonably requested by the City in connection with City billing of Customers.
13.14 Annual Service Fee Estimate
By February 1 of each year, Republic shall provide a written estimate to City of revenue to be paid to Republic for the upcoming fiscal year by City for services billed by City.
13.15 Computer System Compatibility
In the event that either the City or Republic changes its computer system from that utilized on the Effective Date, each Party shall take all action and bear all expense necessary to assure that the computer systems of the other party continue to be fully compatible with those of the party initiating the change, and are capable of receiving, storing, and processing all data which the City may reasonably request or which is required to be delivered in electronic from hereunder. Such obligation shall include, as necessary in the circumstance, the replacement or upgrading of the other party’s data processing and other computer equipment. The City or Republic shall provide a dedicated resource to the project to participate in system integration workshops, weekly status meetings, and provide consultation services.
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SECTION 14. FAITHFUL PERFORMANCE
(A) Contemporaneously with execution of this Agreement, as security for Republic's faithful performance of all obligations of this Agreement, Republic shall provide a sure ty mechanism (the "Surety") as more fully defined below in the amount of one million dollars ($1,000,000.00). The Surety may be comprised of either a performance bond or an irrevocable letter of credit, or a combination of both. If a letter of credit is utilized to satisfy some or all of the Surety requirement , it shall be drawn upon a financial institution with an office within fifty (50) miles of City, and otherwise be in a form acceptable to the City Attorney. The performance bond, if any, shall be issued by a duly authorized corporate surety company authorized to do business in California, and in a form acceptable to the City Attorney and in full compliance with the provisions of California Code of Civil Procedure–Sections 995.610 - 995.660 regarding Admitted Surety Insurers. The cost of the Surety shall be the sole obligation of Republic. The Surety shall be released within thirty (30) days after both (i) the expiration of the Term of this Agreement; and, (ii) Republic's satisfactory performance of all obligations hereunder.
(B) In the event Republic shall for any reason become unable to, or fail in any way to, perform as required by this Agreement, City may declare a portion or all of the Surety, as may be necessary to recompense and make whole the City, forfeited to the City. Upon partial or full forfeiture of the Surety, Republic shall restore the Surety to its original amount within thirty (30) days of the City's notice to do so. Failure to restore the Surety to its full amount within thirty (30) days shall be a material breach of this Agreement.
(C) Notwithstanding any provision hereof to the contrary, thirty (30) days following City providing Republic with written notice of its failure to pay City any amount owing under this Agreement, either the letter of credit or performance bond comprising the Surety m ay be utilized by City for purposes including, but not limited to:
(1) Payment of sums due under the terms of this Agreement which Republic has failed to timely pay to City, including specifically, but not limited to, liquidated damages. (2) Reimbursement of costs borne by City to correct violations of this Agreement not corrected by Republic.
(D) City may draw upon the entire letter of credit (if any) util ized to meet Republic's obligations pertaining to the Surety, and convert it to a cash deposit, if Republic fails to cause the letter of credit to be extended or replaced with another satisfactory letter of credit no later than sixty (60) days prior to its expiration.
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SECTION 15. INSURANCE COVERAGE
Republic shall procure and maintain during the entire Term of this Agreement the following types of insurance, written and issued to comply with all terms and conditions in this Section, and shall maintain the following minimum levels of coverage, which shall apply to any claims which may arise from or in connection with Republic's performance hereunder, or the actions or inaction of any of Republic's officers, agents, representatives, employees, or subcontractors in con nection with Republic's performance. The insurance requirements hereunder in no way limit Republic's various defense and indemnification obligations or any other obligations as set forth herein.
15.1 Minimum Scope of Insurance
Coverage shall be at least as broad as:
The most recent editions of Insurance Services Office Commercial General Liability coverage ("occurrence" form CG 00010413).
The most recent editions of Insurance Services Office form number CA 00 0I 1120 covering Automobile Liability, code "any auto".
Workers' Compensation Insurance and Employer’s Liability Insurance as required by the Labor Code of the State of California.
15.2 Minimum Limits of Insurance
Republic shall maintain in force for the Term of this Agreement limits no less than:
(A) Comprehensive General Liability: Ten million dollars ($10,000,000) limit aggregate and ten million dollars ($10,000,000) limit per occurrence for bodily injury, personal injury, and property damage.
Such limits can be achieved through a combination of primary and excess liability policies. (B) Automobile Liability: Ten m illion dollars ($10,000,000) limi t aggregate and ten million dollars ($10,000,000) limit per accident for bodily injury and property damage. Such limits can be achieved through a combination of primary and excess liability policies. (C) Workers' Compensation and Employers’ Liability: Workers' compensation limits as required by the Labor Code of the State of California and Employers Liability limits of one million dollars ($1,000,000) per accident or disease.
15.3 Other Insurance Provisions
The policies are to contain, or be endorsed to contain, the following provisions:
15.3.1 General Liability and Automobile Liability Coverages (A) City, as well as its respective elected and appointed officials, officers, employees, agents , and volunteers are to be named as additional insureds via blanket-form endorsement as respects: liability arising out of activities performed by or on behalf of Republic; Premises owned, leased, or used by Republic; and/or vehicles owned, leased, hired, or borrowed by Republic. The coverage shall contain
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no special limitations on the scope of protection afforded to City, or City’s respective elected and appointed officials, officers, employees, agents, or volunteers. (B) Republic’s insurance coverage shall be primary insurance as respects City, as well as its respective elected and appointed officials, officers, employees, agents , and volunteers. Any insurance or self- insurance maintained by City, or its respective elected and appointed officials, officers, employees, agents, and volunteers shall be excess of Republic’s insurance and shall not contribute with it. (C) Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, or its respective elected and appointed officials, officers, employees, agents, or volunteers. (D) Coverage shall state that Republic's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.
15.3.2 Workers' Compensation and Employers Liability Coverage The insurer shall agree to waive all rights of subrogation against City, as well as its elected and appointed officials, officers, employees, agents, and volunteers, for losses arising from work performed by Republic for City.
15.3.3 All Coverages
Each insurance policy required by this clause shall be endorsed to state that coverage, except workers’ compensation and umbrella, shall not be canceled, except after thirty (30) days' prior written notice by e- mail has been given to City.
15.4 Acceptability of Insurers
The insurance policies required by this Section shall be issued by an insurance company or companies authorized to do business in the State of Californi a and with a rating in the most r ecent edition of Best's Insurance Guide Reports of size category VII or larger and a rating classification of A or better, unless otherwise approved by the Manager.
15.5 Verification of Coverage
Republic shall furnish City with certificates of insurance and with applicable blanket-form endorsements affecting coverage required by this Section . The certificates are to be signed by an authorized representative of the insurer to bind coverage on its behalf. The certificates and endorsements are to be on applicable blanket-form endorsements issued by the insurers as part of the applicable policies and are to be received and approved by City before work commences.
15.6 Loss or Reduction in Insurance
In the event that Republic fails to retain or maintain insurance with the scope and amounts of coverage required hereunder, City shall have the right, but not the obligation, to either terminate this Agreement, or obtain insurance coverage as required herein on behalf of Republic and utilize funds from the Surety defined in Section 14 to pay the cost of providing such coverage.
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SECTION 16. ASSIGNMENT, SUBLETTING, AND TRANSFER;
REQUIREMENTS AND LIMITATIONS
16.1 General
Republic shall not assign its rights, nor delegate or otherwise transfer its obligations under this Agreement (collectively referred to as an "Assignment") to any other Person without the prior approval by the City Council of the City. Any such Assignment made without the approval by the City Council of the City shall be void, and the attempted Assignment shall constitute a material breach of this Agreement.
16.2 Assignment to be Broadly Interpreted
For purposes of t his Section the term "Assignment" shall be given the broadest possible interpretation, and shall include, but not be limited to: (i) a sale, exchange, or other transfer of substantially all of Republic’s assets dedicated to service under this Agreement to a third party; (ii) a sale, exchange, or other transfer of any ownership interest of Republic to a third party; (iii) any dissolution, reorganization, consolidation, merger, re -capitalization, stock issuance or re-issuance, voting trust, pooling agreement, escrow arrangement, liquidation, or other transaction which results in a change of ownership or control of Republic; (iv) any assignment by operation of law, including those resulting from mergers or acquisitions by or of Republic or any of its Affiliates, insolvency or bankruptcy, making assignment for the benefit of creditors, writ of attachment for an execution being levied against this Agreement, appointment of a receiver taking possession of Republic ’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 Republic. Assignment does not refer to a change in the name unde r which Republic is doing business under this Agreement, (its “dba”) provided that there is no ownership change associated with the change in “dba.”
16.3 Nature of Agreement – Personal to Republic
Republic acknowledges that this Agreement involves renderi ng a vital service to City ’s residents and businesses, and that City has selected Republic to perform the services specified herein based on (1) Republic’s experience, skill, and reputation for conducting its Solid Waste Handling Services in a safe, effective, and responsible fashion, at all times in keeping with applicable Environmental Laws, regulations and best Solid Waste management practi ces, and (2) Republic'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 Republic to perform the services to be rendered by Republic under this Agreement.
16.4 Procedure for Consideration of Assignment
(A) If Republic requests City's consideration of and consent to an Assignment, the City Council of City may deny, approve, or conditionally approve such request in its sole and absolute discretion. Under no circumstances shall City be obliged to consider any proposed Assignment if Republic is in default at any time during the period of consideration. Should the City consent to any Assignment request, such Assignment shall not take effect until all conditions relating to the City's approval have been met. Any request for an Assignment shall be made in a manner to be prescribed by the Manager, and no request by Republic for consent to an Assignment need be considered by City unless and until
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Republic 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:
(1) Prior to City's consideration of any A ssignment request, Republic shall pay City a non- refundable Assignment fee in the amount of two hundred and fifty thousand dollars ($250,000) as additional consideration and in order to reimburse City for its reasonable direct and indirect expenses, including administrative, investigative, consulting, and attorney’s fees and costs necessary to investigate the sui tability of any proposed assignee, and to review and finalize any documentation required as a condition for approving any such Assignment. (2) If requested to do so, Republic shall furnish City with audited financial statements of the proposed assignee’s operations for the immediately preceding three (3) operating years. (3) Republic shall furnish City with satisfactory proof: (i) that the proposed assignee has at least ten (10) years of Solid Waste management experience on an scale equal to or exceeding the scale of operations conducted by Republic 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, S tate, or local agency having jurisdiction over i ts Solid Waste management operations due to any significant failure to comply with federal, State, or local laws, including the Environmental Laws, and that the assignee has provided City with a complete list of 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 Collection and Disposal of Solid Waste including hazardous substances; and, (v) of any other information required by City to ensure the proposed assignee can fulfill the terms of this Agre ement in a timely, safe, and effective manner.
(4) The proposed assignee shall execute an agreement ass uming all of Republic's rights and liabilities under this Agreement.
16.5 Subcontractors
Republic shall not utilize any subcontractors, in direct interaction with City Customers or City staff, for the performance of the s ervices required by this Agreement except with the consent of the Manager, which may be withheld or delayed in its sole and absolute discretion.
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SECTION 17. REVIEW OF SERVICES AND PERFORMANCE
17.1 Performance Review
(A) Commencing on or about July 1, 2023, and on a biennial basis thereafter, City may hold a hearing to review Republic’s Solid Waste Collection efforts, source reduction, processing and other Diversion services, and overall performance under this Agreement (the "Solid Waste Services an d Performance Review " o r "Performance Review"). The purpose of the Performance Review is to provide for a discussion and review of technological, economic, and regu latory changes in Collection, source reduction, Recycling, Processing, and Disposal to achieve a continuing, advanced Solid Waste Collection, source reduction , and Recycling and Disposal system; and , to ensure services are being provided by Republic with a dequate quality, effectiveness, and economy and in full compliance with the terms of this Agreement. Topics for discussion and review at the Performance Review shall include, but shall not be limited to, services provided, feasibility of providing new services, application of new technologies, Customer complaints, amendments to this Agreement, developments in the law, new initiatives for meeting or exceeding AB 939 and/or SB 1383 goals and requirements, regulatory constraints, and Republic’s performance. City and Republic may each select additional topics for discussion at any Performance Review. (B) In addition to the Performance Review, in accordance with the immediately preceding paragraph, if the number of Customer complaints regarding Republic's Solid Waste Handling Services are deemed by City to be excessive, City may, at any time (subject to the paragraph immediately below), hold a Performance Review.
(C) City shall notify Republic of its intent to hold a Performance Review at least n inety (90) days in advance thereof. The notice will indicate whether the hearing will occur before City staff, the City Council, or such other body as the City may designate in the notice. Forty-five (45) days after receiving notice from City of a Performa nce Review, Republic shall submit a report to City which may contain such information as it wishes to have considered, and shall also contain all of the following:
(1) Current Diversion rates and a report on Republic's outreach activities for the past year. (2) Recommended changes and/or new serv ices to improve the City's ability to meet the requirements and goals of AB 939 and SB 1383 and to contain costs and minimize impacts on rates.
(3) Any specific plans for provision of changed or new services by Republic. (D) The reports required by this Agreement regarding Customer complaints s hall be used as one basi s for review of Republic's performance, and Republic may submit other relevant performance information and reports for consideration at the Performance Review. In addition to the above, City may request that Republic submit any other specific information relating to its performance for consideration at the Performance Review, and any Cust omer may submit comments or complaints during or before the Performance Review, either orally or in writing. Republic shall be present at , and participate in, the Performance Review.
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17.2 Performance Satisfaction Survey
If requested by the City, no more than every three (3) years for the Term of the Agreement, Republic will create and cond uct a survey at Republic's expense in preparation for any Solid Waste Services and Performance Review held pursuant to Section 17.1. City shall notify Republic of its desire for such a survey at least ninety (90) days in advance of the Solid Waste Services and Performance Review. The purpose of the survey is to determine Customer satisfaction with current City Collection services and Customer service provided by Republic. The s urvey shall be distributed to a minimum of ten percent (10%) of the Bin and Roll-off Box Customers and five percent (5%) of the Residential Customers, selected at random. Re public shall obtain City' s approval of the survey's content, format, protocol used for randomly selecting Customers to be surveyed, and mailing list prior to its dis tribution. The City may require that Republic have Customer responses to the survey returned directly to the City. The s urvey results shall be made available to the City thirty (30) days prior to the Solid Waste Services and Performance Review.
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SECTION 18. CITY'S REMEDIES; DEFAULT AND TERMINATION
18.1 Notice of Default
If the Manager reasonably determines that Republic has defaulted in the performance of any obligation hereunder, the requirements of the Municipal Code not inconsistent with this Agreement, the requirements of CalRecycle in existence as of the date of execution of this Agreement, including but not limited to, the requirements of AB 939 and SB 1383 (but excluding the statewide seventy-five percent (75%) Diversion goal of AB 341), and including, but not limited to, requirements for source reduction and Recycling or any other applicable federal, State, or local law or regulation, including but not limited to the laws governing Transfer, storage, and Disposal of Special Wastes, or H azardous Wastes, the Manager may provide written notice to Republic of such default. The Manager may, in such written notice, set a reasonable time within which correction of such cure shall be made. Unless a longer or shorter time is otherwise specified by the Manager, a reasonable time for cure shall be thirty (30) days from the date such written notice is given.
18.2 Failure to Cure
If Republic fails to cure, to the reasonable satisfaction of the Manager, all deficiencies contai ned in the written notice thereof within the specified time, or if it is not reasonably possible to cure such deficiencies within the specified time, and Republic fails to commence to cure or remedy such deficiencies within the specified time and diligently effect such cure or remedy thereafter, then the Manager may refer the matter to the City Manager for review, or review the matter him/herself.
18.3 Review by City Manager
If the City Manager reviews the matter and reasonably determines that Republic has failed to properly or adequately cure any default set forth above, the City Manager may recommend termination of the Agreement to the City Council. If the City Manager refers the matter to the City Council, the City Council shall set the matter for consideration before the City Council as an agenda item.
18.4 City Council Review
In reviewing the matter , the City Council may consider any information reported by the City Manager regarding the deficiencies, and shall give Republic, or its representatives and any other interested Person, a reasonable opportunity to be heard. The Council shall reasonably determine whether Republic has failed to properly or adequately perform as set forth above, and, if so, whether to terminate the Ag reement, and/or to pursue any other remedy available to City.
18.5 Performance During Reviews
Republic's performance under this Agreement is not excused during any period of time when its performance is under review as set forth above, including at any time prior to a final decision by the City as to whether such performance is deficient.
18.6 Termination without Right to Cure
(A) The above right of termination as a result of Republic's failure to timely cure any deficiencies is in addition to City's right to terminate this Agreement without affording Republic an opportunity to cure in the circumstances enumerated below where Republic is reasonably determined by City to
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have materially breached this Agreement. City shall thus be afforded the right to terminate this Agreement in the event of any material breach hereof by Republic which occurs in the circumstances enumerated below, without affording Republic the right to cure as a result of any action, inaction, or circumstance which is a legally defined material breach, or is defined herein as a material breach:
(1) If Republic practices, or attempts to practice, any fraud upon City. (2) If Republic becomes insolvent, unable, or unwilling to pay its debts, or upon listing of an order for relief in favor of Republic in a bankruptcy proceeding. (3) If Republic willfully violates any orders or rulings of any regulatory body having jurisdiction over Republic relative to this Agreement. So long as City's rights are not prejudiced during the pendency of any challenge to such orders or rulings by Republic, Republic may contest any such orders or rulings by appropriate proceedings conducted in good faith, in which case no material breach of this Agreement shall be deemed to have occurred until a final ruling has been rendered.
(4) If Republic ceases to provide Solid Waste Handling Services, including Collection of Refuse and/or Recyclable Material and/or Organic Waste, as required under this Agreement over all or any portion of the Collection Area for a period of seven (7) days or more, for any reason not specified as a force majeure event hereunder.
(5) If Republic fails to materially comply with any insurance, surety, or indemnification requirement set forth in this Agreement. A lapse in insurance coverage due to non-payment shall not constitute a right to terminate if insurance is re-instated in full compliance with the requirements of this Agreement within thirty (30) days of coverage lapse. (6) If City is required to pay any fi ne or penalty which Republic is obligated to pay under this Agreement, but which is not paid on its behalf by Republic , or which Republic fails, refuses, neglects, or is unable to pay or indemnify City against, relating to any D iversion or other requirement of AB 939 or SB 1383.
(7) If Republic, or any management-level employee of Republic is convicted of a Criminal Matter (as defined herein) in connection with Republic’s performance of this Agreement. For purposes of this Section the term “Criminal Matter” refers to any felony or misdemeanor offense having any relationship to either Solid Waste Handling Services or public corruption (including, without limitation, bribery, conflict of interest related allegations, vote selling, or any similar type charges).
(8) Violations of Regulation. If Republic violates any orders of any regulatory body having jurisdiction over Republic relative to Republic’s performance of this Agreement, and which violation materially impairs and/or substantially threatens to materially impair Republic’s ability to continue to perform under this Agreement, provided that Republic 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 o ccurred until a final decision adverse to Republic is entered.
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(9) False or Misleading Statements. Any representation or disclosure made to City by Republic 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 as of the time such representation or disclosure is made, whether or not any such representation or disclosure appears as part of this Agreement.
(10) Sale of CVT, the Approved Recyclable Materials Processing Facility – Failure of CVT , the Approved Recyclable Materials Processing Facility , to remain one hundred perc ent (100%) owned by Republic and/or its parent company Republic Services, Inc. and/or a one hundred percent (100%) wholly-owned subsidiary of Republic Services, Inc. (11) Failure to Provide Processing Capacity. Republic fails to provide adequate Processing capacity in accordance with Exhibit E , which results in a final judgment against City pursuant to an enforcement action brought by CalRecycle for failing to achieve SB 1383 compliance pursuant to CCR title 14 § 18997.5.
(12) Failure to Achieve Processing Standards . Republic fails to achieve the Processing standards specified in Exhibit E, including achievement of minimum Organic Materials recovery rates, which results in a final judgment against City pursuant to an enforcement action brought by CalRecycle for failing to achieve SB 1383 compliance pursuant to CCR title 14 § 18997.5. (13) Failure to Comply with Other Requirements of SB 1383. Republic fails to comply with other requirements of the Agreement including, but not limited to, public education, reporting, contamination monitoring, recordkeeping and reporting, or other obligations of this Agreement that delegate the City’s responsibility and/or authority under SB 1383 to Republic , which results in a final judgment against City pursuant to an enforcement action brought by CalRecycle for failing to achieve SB 1383 compliance pursuant to CCR title 14 § 18997.5. (14) Failure to Implement Collection Program . Republic fails to implement a Collection program that complies with the requirements of Section 8, which results in a final judgment against City pursuant to an enforcement action brought by CalRecycle for failing to achieve SB 1383 compliance pursuant to CCR title 14 § 18997.5.
18.7 Liquidated Damages
18.7.1 General
The City finds, and Republic agrees, that as of the time of the execution of this Agreement, it is impractical, if not impossible, to reasonably ascertain the extent of damages which shall be incurred by City as a result of a breach by Republic of certain specific obligations under this Agreement. The factors relating to the impracticability of ascertaining damages include, but are not limited to, the fact that: (i) substantial damage results to members of the public who are denied services or denied quality or reliable service; (ii) such breaches cause inconv enience, anxiety, frustration, and deprivation of the benefits of the Agreement to individual members of the general public for whose benefit this Agreement exists, in subjective ways and in varying degrees of intensity which are incapable of measurement i n precise monetary terms; (iii) the services that are the subject of this Agreement might be available at substantially lower costs than alternative services and the monetary loss resulting from denial of services or denial of quality or reliable services is impossible to calculate in precise monetary terms; and, (iv) the termination of this Agreement
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for such specific breaches, and other remedies are, at best, a means of future correction and not remedies which make the public whole for past breaches.
18.7.2 Service Performance Standards; Liquidated Damages for Failure to Meet Standards The Parties further acknowledge that consistent, reliable Solid Waste Handling Service is of utmost importance to City and that City has con sidered and relied on Republic's representations as to its quality of service commitment in entering this Agreement with it. The P arties further recognize that some quantified standards of performance are necessary and appropriate to ensure consistent and reliable service and performance. The Parties further recognize that if Republic fails to achieve the performance standards, or fails to submit required documents in a timely manner, City and its residents will suffer damages and that it is and will be impractical and extremely difficult to ascertain and determine the exact amount of damages which City will suffer. Theref ore, without prejudice to City's right to treat such breaches as an event of default, the P arties agree that the following liquidated damage amounts represent a reasonable estimate of the amount of such damages for such specific breaches, considering all of the circu mstances 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 the anticipation that proof of actual damages would be costly or impractical. In placing their initials at the places provided, each P arty specifically confirms the accuracy of the statements made above and the fact that each Party has had ample opportunity to consult with legal counsel and obtain an explanation of the liquidated damage provisions at the time that the Agreement was made.
Republic City
Initial Here ____________________ Initial Here _____________________
18.7.3 Calculations for Liquidated Damages
Republic agrees to pay (as liquidated damages and not as a penalty) the amounts set forth below for each type of action warranting such damages:
18.7.3.1 Collection Reliability
(A) For each failure to commence service to a new Customer account within five (5) Business Days after order, which exceed five (5) such Collection Area-wide failures annually: O ne hundred and fifty dollars ($150.00) per occurrence.
(B) For each failure, which exceeds ten (10) such Collection Area-wide failures annually, to Collect Discarded Materials from any established Customer account on the scheduled Collection day and not Collected within the period described in Section 8.1.10 of this Agreement: One hundred and fifty dollars ($150.00) per occurrence.
(C) For each failure to Collect Discarded Materials, which has been properly set out for Collection, from the same Customer on two (2) consecutive scheduled pick -up days: One hundred and fifty dollars ($150.00) per occurrence.
18.7.3.2 Collection Quality
(A) For each occurrence of failure to properly return any Customer’s empty Containers to avoid pedestrian or vehicular traffic impediments, or to place Containers upright with lids secured which
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exceeds ten (10) such Collection Area-wide occurrences annually: One hundred and fifty dollars ($150.00) per occurrence.
(B) For each occurrence of excessive noise or discourteous behavior which exceeds ten (10) such Collection Area-wide occurrences annu ally: T wo hundred and fifty dollars ($250.00) per occurrence.
(C) For each occurrence of Collecting Discarded Materials during unauthorized hours which exceeds five (5) such Collection Area-wide occurrences annually: Two hundred and fifty dollars ($250.00) per occurrence.
(D) For each occurrence of damage to private property caused by Republic’s negligence in an amount in excess of one thousand dollars ($1,000) which exceeds five (5) such Franchise area-wide occurrences quarterly: Two hundred and fifty dollars ($250.00) per occurrence. (E) For each failure to clean up Discarded Materials spilled from Containers, excepting amounts that are so nominal in nature that they would not reasonably be expected to be noticed by the driver of a Collection Vehicle, within ninety (90) minutes that exceeds ten (10) such Collection Area-wide failures annually: One hundred and fifty dollars ($150.00) per occurrence. (F) For each failure to conform to the requirements of Sections 9, and 10.1 through 10.7, which exceed in any or a combin ation of categories above five (5) such occurrences annually: One hundred and fifty dollars ($150.00) per occurrence.
(G) For each failure to report and/or c ontain and clean fluid spills as required by Section 9.3.D, which exceed in any or combination of f ive (5) such occurrences annually: One hundred and fifty dollars ($150.00) per occurrence.
18.7.3.3 Customer Responsiveness
(A) For each failure to initially respond to a Customer complaint within one ( 1) Business Day, which exceeds five (5) such Collection Area-wide occurrences annually during a calendar year, and for each additional day in which the complaint is not addressed: Two hundred and fifty dollars ($250.00) per day.
(B) For each failure to process Customer complaints to City as required herein, which exceeds five (5) such Collection Area-wide occurrences annually during a cal endar year : Two hundred and fifty dollars ($250.00) per occurrence.
(C) For each failure to remove graffiti from Containers, or to replace with Containers bearing no graffiti, within twenty-four (24) hours of request, excluding Sundays and holidays, from City: One hundred and fifty dollars ($150.00) per occurrence.
(D) For each failure to repair or replace a damaged or missing Container within the required time period:
Fifty dollars ($50.00) per day.
(E) For each failure to replace a bus stop Container within five (5) Business Days of request by City per Section 12.6: One hundred dollars ($100.00) per day.
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(F) For each failure to deliver a newly requested Container to an existing Customer account per Section
8.1.9(C) within seven (7) calendar days after Customer request , which exceed five (5) such Collection Area-wide failures annually: One hundred and fifty dollars ($150.00) per occurrence.
18.7.3.4 Accuracy of Billing
(A) For each Customer billing that is not prepared in accordance with City’s approved schedule of rates:
Twenty-five dollars ($25.00) per incorrect bill.
18.7.3.5 Timeliness of Submissions to City
(A) Any report shall be considered late until such time as a correct and complete report is received by City. For each calendar day a report is late and, within five (5) Business Days of notification from City of failure to receive the report , the complete, correct report is not provided to City, the daily liquidated damage amount shall be:
(1) Monthly Reports: One hundred dollars ($100.00) per day* (2) Quarterly Reports: Two hundred and fifty dollars ($250.00) per day* (3) Annual Reports: Three hundred and fifty dollars ($350.00) per day* * Per day beginning five (5) Business Days following notification from City that report is late. (B) For each instance where City is not provided requested data or paperwork within five (5) Business Days, unless otherwise agreed to with City staff: Fifty dollars ($50.00) per day beginning seven (7) days following initial request.
(C) For each instance where City is not provided a proposal or program per Section 8.4 within thirty (30) days of City request, unless otherwise agreed to in writing with Manager: Two hundred dollars ($200.00) per day beginning thirty (30) days following initial request.
18.7.3.6 CalRecycle Compliance Efforts
(A) For each day the City is under a review, after March 1, 2024, from the Jurisdictional Compliance Unit or is in the process of correcting a compliance order from CalRecycle for failure to implement required Recycling and Organic Materials programs under AB 341, A B 1826, or SB 1383: Three hundred dollars ($300.00) per day.
18.7.3.7 Cooperation with Service Provider Transition
(A) For each day routing information requested by City in accordance with Section 28 i s received after City-established due dates, both for preparation of a request for proposals and for new service provider’s implementation of service: One thousand dollars ($1,000) per day. (B) For each day delivery of keys, access codes, remote controls, or other means of access to Discarded Materials Containers is delayed beyond one (1) day prior to new service provider servicing Customers with access issues, as described in Section 28: One thousand dollars ($1,000) per day.
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(C) For delay in not meeting t he requirements contained in Sectio n 27.4 (Route Audit) and Section 28 in a timely manner, in addition to the daily liquidated damages for breach under (a) and (b) above, liquidated damages of: Ten thousand dollars ($10,000).
18.7.3.8 Collection Vehicles
(A) For each Residential Cart Collection Vehicle not replaced by the eleventh anniversary date of the day each vehicle was first placed in service, in accordance with Section 9.7.1, for each year replacement is delayed (For example, if ten (10) vehicles’ eleventh anniversary date is in June 2022 and these vehicles are not replaced until June 2024, damages would be ten ( 10) trucks x thirty-six thousand dollars ($36,000) per truck x two (2) years = seven hundred and twenty thousand dollars ($720,000).) (Damages may be pro -rated to reflect partial years. ): Thirty-six thousand dollars ($36,000) per vehicle per year.
(B) For each instance where Republic does not correct vehicle deficiencies after audit within the agreed upon amount of time determined with City staff: Fifty dollars ($50.00) per day per deficient vehicle violation.
18.7.3.9 SB 1383 Requirements
(A) Use of Unauthorized Facilities. For each individual occurrence of delivering Discarded Materials to a facility other than an Approved or Designated Facility(ies) for each Discarded Material type under this Agreement: One hundred dollars ($100.00) per ton per offense. (B) Failure to Perform Contamination Monitoring Requirements. For each failure to conduct contamination monitoring in accordance with Section 8.15 of this Agreement: One hundred dollars ($100.00) per customer on route per occurrence.
(C) Failure to Comply with Container Colors Requirements as Required by SB 1383. For each occurrence of Republic’s failure to comply with Container color requirements pursuant to Exhibit B of this Agreement: Fifty dollars ($50) per Container occurrence. (D) Failure to Conduct Compliance Tasks. For each failure to conduct any compliance review, Discarded Materials evaluations pursuant to Section E.6 of Exhibit E, and/or other inspection required by this Agreement: One hundred dollars ($100.00) per occurrence. (E) Failure to Issue Contamination Notices. For each failure of Republic Collection personnel to issue contamination notices and Contaminati on Processing F ee Notices and maintain documentation of issuance as required by Section 8.15 of this Agreement : One hundred dollars ($100) per route per day.
(F) Failure to Conduct Follow -Up Inspections. For each failure to conduct a follow -up inspection as required by Section 8.16 of this Agreement: One hundred dollars ($100.00) per occurrence.
18.7.3.10 General Agreement Adherence
(A) For each day that Republic fails to provide services required under the Agreement, or comply with terms of the Agreement, five (5) Business Days after receipt of written notification from City that
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such services are not bein g provided or terms are not being met: Three hundred dollars ($300.00) per day.
18.7.4 Process for Assessment of Liquidated Damages
(A) City may determine the occurrence of events giving rise to liquidated damages through the observation of its own employ ees or representatives or investigation of Customer complaints. It is the desire of the P arties to work together to avoid the imposition of liquidated damages , and accordingly City will endeavor to timely communicate to Republic any information that it rec eives which might give rise the imposition of l iquidated damages in order to facilitate Republic's ability to correct any deficiency, or prevent the recurrence of any conduct for which liquidated damages might eventually be imposed.
(B) Liquidated damages will only be assessed after Republic has been given the opportunity but failed to rectify, in a timely manner, the breach as described in this Agreement however Republic will not be provided the opportunity to rectify those breache s identified under Sections 18.7.3.3(A),
18.7.3.3(B), and 18.7.3.3(D) because it would not be possible to rectify these breaches in a timely manner after the stated period for correction has passed. Furthermore, prior to assessing liquidated damages, City shall give Republic notice of its intention to do so. The not ice will include a brief description of the incident(s)/non-performance. Republic may review (and make copies at its own expense) all information in the possession of City relating to incident(s)/non-performance. Republic may, within ten (10) days after re ceiving the notice, request a meeting with City. Republic may present evidence in writing and through testimony of its employees and others relevant to the incident(s)/non-performance. City will provide Republic with a written explanation of the Manager’s determination on each incident(s)/non-performance prior to authorizing the assessment of liquidated damages. The decision of City shall be final, subject to judicial review. (C) City may assess liquidated damages for each calendar day or event, as appropriate, that Republic is determined to have failed to comply with the requirements of the Agreement described in this Section 18.7.
18.7.5 Timing of Payment
Republic shall pay any liquidated damages assessed by City within ten (10) days after they are assessed.
If they are not paid within the ten (10) day period, City may proceed against any security required by this Agreement to obtain payment, deduct amounts due from any amounts collected from Customers by City on behalf of Republic which would otherwise be due to Republic, and/or find Republic in default and exercise its right to terminate this Agreement as set forth herein.
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SECTION 19. CITY’S ADDITIONAL REMEDIES FOR BREACH BY
REPUBLIC
In addition to any other remedies set forth herein, City shall be entitled to any or all of the following rights and remedies in the event of a breach of this Agreement by Republic:
(A) The right to use Republic’s equipment for the purpose of providing Solid Waste Handling Service, including Recyclable Materials and Organic Materials, for a period not to exceed six (6) months. In the case of equipment not owned by Republic, Republic shall assign to City, to the extent Republic is permitted to do so under the instruments pursuant to which Republic possesses such equipment, the right to use and possess the equipment. If City exercises its rights under this Section, City shall pay to Republic the reasonable rental value of the equipment for the period of City's possession thereof (although payment may, if appropriate, occur in the form of a set off against damages otherwise owed by Republic pursuant to the terms hereof); (B) The right to license others to perform the services otherwise to be performed by Republic hereunder, or to perform such services itself; and,
(C) The right to obtain damages and/or injunctive relief. Both P arties recognize and agree that in the event of a breach of this Agreement by Republic, City will suffer irreparable injury and incalculable damages sufficient to support injunctive relief, to specifically enforce the provisions of this Agreement, and to enjoin the breach hereof.
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SECTION 20. REPUBLIC'S REMEDIES FOR BREACH BY CITY;
ADMINISTRATIVE HEARING
20.1 Administrative Hearing
Should Republic contend that City is in breach of any aspect of this Agreement, it shall give notice to the Manager requesting an administrative hearing on the all egation. The hearing shall occur as soon as reasonably possible, or on such date as mutually agreed by the Parties, and shall be held before a Stipulated Hearing Officer to be determined by the Parties. The Stipulated Hearing Officer shall make an advisory ruling on Republic's allegations, and suggest a remedy to the P arties if a breach by City is determined to exist. The ruling and recommendations of the Stipulated Hearing Officer shall become final and binding if the Parties so agree in writing within thirty (30) days of the date notice of the decision is given to both Parties. Otherwise, the ruling of the Stipulated Hearing Officer shall have no force or effect.
20.2 Other Remedies; Claims
Republic shall be entit led to all available remedies in law or equity for City's breach of this Agreement; provided, however, Republic shall not file or otherwise commence any action against City, in law or equity, in any court, until after an administrative hearing as set forth in Section 20.1 has been completed, and the thirty (30) day period described in Section 20.1 to accept the decision of the Stipulated Hearing Officer has passed, or either City or Republic has given timely written notice to the other t hat it will not accept the Stipulated Hearing Officer's decision.
20.3 Actions for Damages
As a prerequisite to the filing and maintenance of any action for damages by Republic against City arising out of this Agreement, Republic shall present a claim to City, as required by Government Code S ection 910 et seq.
20.4 Limited Recourse to the City
No recourse shall be had to the general funds or general credit of City for the payment of any amount due Republic hereunder, or the performance of any obligation incurred hereunder, including any l oss-and- expense of any nature aris ing from the performance or non-performance of the City's obligations hereunder. The sole recourse of Republic for all such amounts shall be to that portion of the funds held in the Sanitation Fund which are related to Solid Waste Collection and Disposal (and not that portion related to street sweeping and sewer maintenance). All amounts held in the Sanitation Fund shall be held for the uses permitted and required thereby, and no such amounts shall constitute property of Republic. City shall make adequate provision in the administ ration of the Sanitation Fund for the payment of any amount or the performance of any obligation which may be due hereunder.
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SECTION 21. RIGHTS OF CITY TO PERFORM DURING EMERGENCY
21.1 Provision of Service
Should Republic, for any reason whatsoever, fail, refuse , or be unable to provide Solid Waste Handling Services for a period of more than seventy-two (72) hours, and if as a result thereof, Solid Waste should accumulate in City to such an extent or in such a mann er that the Manager finds that such accumulation constitutes a public emergency endangering or menacing the public health, safety, or welfare, City shall have the right, but not the obligation, upon twenty-four (24) hours prior written notice to Republic, during the period of such emergency, to temporarily take possession of any or all equipment and facilities of Republic previously used in providing Solid Waste Handling Services and provide, through its own forces or otherwise, Solid Waste Handling Services which Republic otherwise would be obligated to provide pursuant to this Agreement. Republic agrees that in such event it shall fully cooperate wit h City to affect such a transfer of possession for City's use.
21.2 Possession of Equipment
Except as provided in Section 21.3, Republic agrees, that in the event of circumstances described in Section 21.1 above, and City determines that Republic has defaulted as provided in Section 18, City may take temporary possession of, and use all of said equipment and f acilities, without paying Republic any rental compensation or other charge during the time of possession. Upon Republic giving City notice that it has cured the default and is able to resume its normal responsibilities under this Agreement , City shall relinquish possession of all of the above mentioned property to Republic.
21.3 Exclusions from Right to Possession of Equipment without Compensation Specifically excluded from the circumstances in which City may possess and utilize Republic's equipment without compensation are circumstances in which Republic fails or refuses to provide Solid Waste Handling Services hereunder for any reason which is a force majeure event as defi ned in Section 29.1 herein. In such circumstances, City's right to utilize and possess Republic's equipment shall be as described in Section 19.
21.4 City's Exercise of Rights
City's exercise of its rights under this Section 21 (i) does not constitute the taking of private property for which compensation must be paid; (ii) will not create any contract, tort , or common law liability on the part of City to Republic; and, (iii) does not exempt Republic from the indemnity provisions of Section 26, which are meant to extend to the circumstances arising under this Section, provided that Republic is not required to indemnify City against claims and damages arising from the active negligence or willful misconduct of City officers, employees, agents, or volunteers acting under this Section.
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SECTION 22. PRIVACY
Republic shall strictly observe and protect the privacy rights of Customers. Information identifying individual Customers or the composition or contents of a Customer's Solid Waste stream, or any of the billing information pertaining to any Customers, shall not be revealed to any P erson, governmental unit, private agency, or company, unless upon the authority of a court of law, by statute, ordinance, or regulation of a governmental agency having jurisdiction, or upon valid authorization of the Customer. This provision shall not be construed to preclude Republic from preparing, participating in, or assisting in the preparation of waste characterization studies or waste audits which may be required by AB 939 , SB 1383, or other Applicable Laws, or this Agreement. Republic shall not market or distribute, outside the normal course of its business, mailing lists with the names and addresses of Customers. The rights afforded Customers pursuant to this Section shall be in addition to any other privacy right afforded Customers pursuant to federal or State law.
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SECTION 23. REPORTS AND ADVERSE INFORMATION
23.1 Report Formats and Schedule
The Parties acknowledge that City will require reporting at various intervals by which information important to City can be compiled and analyzed. Throughout the Term the Parties agree to work together to address City's needs with respect to the information to be contained in reports prepared by Republic.
The following is intended as a starting point in order to establish an objective baseline for reporting, but the frequency and content of the reports in this Section 23 may be changed by agreement of the P arties; provided any such change is approved by the Manager in writing. Records related to performance of this Agreement shall be maintained by Republic in forms and by methods that facilitate flexible use of data contained in them to structure reports, as needed. Reports are intended to compile recorded data into useful forms of information that can be used to, among other things:
• Determine and set rates;
• Evaluate past and expected progress toward achieving AB 939, AB 1826, AB 341, and SB 1383 goals and compliance requirements;
• Determine needs for adjustment to programs; and,
• Evaluate Customer service and complaints.
The format of each report shall be approved by the Manager. In addition to submitting all reports on paper, Republic agrees to submit all reports in an electronic format approved by the City, compatible with City's software/computers at no additional charge. Monthly reports shall be submitted within twenty (20) calendar days after the end of the report month.
23.2 Monthly Reports
(A) The information listed shall be the minimum reported:
(1) Gross receipts for the month by sector (Residential, Commercial, Roll-off Box). (2) Warning notices issued during the reporting month for Containers with Prohibited Container Contaminants.
(3) Quantity of Recyclable Materials recovered by material type, quantities of Organic Waste Diverted, and total quantity of material Diverted from landfills in compliance with Applicable Laws for the reporting month.
(4) Description of Republic outreach activities and copies of promotional and public education materials sent , posted on social media or otherwise distributed or disseminated during the reporting month.
(5) Tonnage Report
(a) Republic shall report the total quantities in tons of Dis carded Materials Collected, Transferred, Processed, and Disposed by Republic, all of which shall be based on actual
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certified scale weights for each load, if available, or similarly accurate methodology pursuant to weighing protocols in Section E .4 of Exhi bit E. Tonnage shall be reported separately by:
(i) Material type, which shall include, at a minimum, separate reporting of Source Separated Recyclable Materials, Source Separated Organic Materials, Black Container Waste, and any other type of Discarded Material separately Collected by Republic (including, but not limited to: Bulky Items, used oil, mixed C&D Materials, dirt, rock, metals, cardboard, wood waste, reusable items, salvageable materials, etc.);
(ii) Customer/sector type (Single Family Dwelling , Multiple-Unit Dwelling , Commercial, Roll-off Box, C&D Debris); and,
(iii) Facility and Facility type.
a. Report residue level and tonnage for all Discarded Materials Processed, listed separately by material type Collected and listing the Approved or Designated Facility(ies) used for each.
b. Source Separated Recyclable Materials tonnage marketed, by commodity, and including average commodity value for each, and Processing residue tonnage Disposed, listed separately by material type Collected and Approved or Designated Facility(ies) used.
c. Documentation of all Discarded Materials exported out of State, as provided in 14 CCR Sections 18800 through 18813.
d. Tonnage Collected by month separately for each construction and demolition project site and other data as it relates to the C&D Debris services described in this Agreement.
(6) Collection and Subscription Report
(a) Number of Containers at each service level by Customer type and program, including:
(i) A summary of the total gallons of Cart service, cubic yards of Bin Service, and pulls and cubic yards or tons of Roll -off Box and compactor service by Customer type; and,
(ii) A summary of Customer subscription data, including the number of accounts; the number of Customers subscribing to each Cart, Bin, and Roll-off Box service level listed separately for Single Family Dwelling, Multiple -Unit Dwelling , and Commercial and separately for each type of Discarded Material; and , the number of Bulky Items Collections performed.
(b) Republic shall include the following items with the monthly reports in addition to the items required above:
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(i) Documentation of the universal service enrollment process including a copy of the City-wide Generator enrollment level evaluation conducted pursuant to Section
8.17 of this Agreement.
(ii) The total number of de minimis waivers, and physical space constraint waivers granted in the month, including the Generator name and address for each waiver. (iii) The number of waiver reverifications per formed by Republic pursuant to Section
8.16.1.4 of this Agreement in the month, if any, including a copy of documentation for each reverification inspection, which shall include, at a minimum: the Generator’s name, address, and Generator type; the type of waiver being verified; any photographic or other evidence collected during the inspection; and, the resulting recommended conclusion by Republic regarding the validity of the waiver. Republic shall provide a summary of recommendations to the City of all waivers which Republic concludes to no longer be warranted. (iv) Number of Bulky Item/sable materials Collection events by Customer type. (7) Contamination Monitoring Report
(a) Hauler Route Reviews (Section 8.15.2). Republic shall submit the following information regarding contamination monitoring Hauler Route reviews conducted pursuant to Section
8.15.2 of this Agreement:
(i) The number of Hauler Route reviews conducted pursuant to Section 8.15.2 of this Agreement;
(ii) Description of Republic’s process for determining the level of contamination; (iii) Summary report of non-Collection notices and/or Contamination Processing Fee assessment notices issued, which for each notice shall include the date of issuance, Customer name, and service address;
(iv) A record of each inspection and c ontamination incident, which shall include, at a minimum:
a. Name of the Customer
b. Address of the Customer
c. The date the contaminated Container was observed
d. The staff who conducted the inspection
e. The total number of violations found and a description of what action was taken for each
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f. Copies of all notices issued to Generators with Prohibited Container Contaminants
g. All photographic documentation or supporting evidence required by t he Agreement.
(v) Documentation of the total number of Containers for which the contents were Disposed due to observation of Prohibited Container Contaminants; (vi) A list of all Customers assessed contamination Processing fees, pursuant to Section
8.15 of this Agreement, reported separately by Single Family Dwelling, Multiple- Unit Dwelling , and Commercial Customers and including the Customer name, Customer address, and reason for the assessment of the c ontamination Processing fee, and the total number of instances contamination Processing fees were assessed in the month and the total amount of fees collected in the month. (vii) Any other information reasonably requested by the City or specified in contamination monitoring provisions of this Agreement.
(8) Customer Service Report and Problems Encountered:
(a) A narrative summary of problems encountered (including scavenging) and actions taken with recommendations for City, as appropriate.
(b) Number of Customer calls listed separately by complaints and inquiries (where inquiries include requests for service information, rate information, etc.). For Complaints, list the number of calls separately by category (e.g., missed pickups, scheduled cleanups, billing concerns, damage claims). These complaints and inquiries shall be documented and reported separately from SB 1383 non-compliance complaints or other regulatory non- compliance complaints.
(c) Number of new service requests for each Customer type and requested service(s). (d) Republic shall maintain a record of all SB 1383 non-compliance complaints and responses pursuant to Section 10.8.3( E) of this Agreement and submit the following information:
(i) Total number of complaints received and total number of complaints investigated (ii) Copies of documentation recorded for each complaint received, which shall at a minimum include the following information:
(iii) The complaint as received;
(iv) The name and contact information of the complainant, if the complaint is not submitted anonymously;
(v) The identity of the alleged violator, if known;
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(vi) A description of the alleged violation, including location(s) and all other relevant facts known to the complainant;
(vii) Any relevant photographic or documentary evidence submitted to support the allegations in the complaint; and,
(viii) The identity of any witnesses, if known.
(ix) Copies of all complaint reports submitted to the City, pursuant to Section 10.8.3 of this Agreement.
(x) Copies of all investigation reports submitted to the City pursuant to Section 10.8.3 of this Agreement, which shall include at a minimum:
(xi) The complaint as received;
(xii) The date Republic investigated the complaint;
(xiii) Documentation of the findings of the investigation; (xiv) Any photographic or other evidence collected during the investigation; and, (xv) Republic ’s recommendation to the City on whether or not the entity investigated is in violation of SB 1383 based on Republic’s investigation. (9) Generator Waivers . Republic shall provide a report that documents each Generator waiver request reviewed by Republic , which are required by Section 8.10.8.B. Identify in the report the Generator name and service address, the type of waiver requested, the status of the waiver (accepted, denied, or pending), and other information reasonably requested by the City. (10) E
ducation Program Report . The monthly status of activities identified in the public education plan described in Section 10.9 of this Agreement.
(11) D iscarded Materials Evaluation Reports . In accordance with Section E.6 of Exhibit E Republic shall provide reports of evaluations of Discarded Materials conducted at Approved Facilities. (12) E xceptions Report . Exceptions report from monthly reconciliation of Republic’s service count records to City’s records (see Section 13.7.2).
23.3 Annual Reports
(A) On or before January 31 of each year during the Term of this Agreement and within fifteen (15) days prior to the end of the Term, Republic shall submit a written annual report, prepared at its sole expense, in a form approved by the Manager. The “Annual Report,” shall cover the most recently- completed calendar y ear. The Annual Report shall include the information in the following subsections.
(B) The Annual Report is to be essentially in the form and content of the monthly reports, but shall also include:
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(1) A summary of the number of Containers in service as of December 31 by size (number of gallons, number of yards), sector (Residential, Commercial, Roll-off Box), service frequency, and type of service (Refuse, Recycling, Organic Materials). (2) A complete inventory of vehicles used to provide all services, including make, year, type, fuel used, use, California license number and whether or not it is used as a spare. (3) Number of routes and route hours per day by type of service applicable as of December 31. (4) General information about Republic and its most recent financial and sustainability annual reports.
(5) The annual report as required by Section 8.1.2 for reported spills, clean-up procedures utilized, and cause of the spill.
(6) Other information or reports that County may reasonably request or require. (7) Republic shall provide the following information in the annual report after January 1, 2023:
(8) Collection and Subscription Report:
(a) A summary of all data provided in the tonnage report section, including quarterly and annual totals and averages.
(b) The type(s) of Collection service(s) provided, a list of all hauler routes se rviced, and a record of the addresses served on each hauler route.
(c) A summary of Customer subscription data, including the number of accounts; the total number of Generators enrolled with Republic for service, listed separately by service level and Container type (Cart, Bin, and Roll -off Box service), separately by Single Family Dwelling, Multiple-Unit Dwelling , and Commercial Customers, and separately for each type of Discarded Material; A nd, the number of Bulky Items Collections performed.
(d) A detailed list of Single-Family, Multiple-Unit Dwelling , and Commercial Customer information, including Black Container Waste, Source Separated Recyclable Materials, and Source Separated Organic Materials service levels, Customer type, and Customer service addresses reflecting Customer service levels as of December 31 (for the year in which the report is submitted).
(e) The number of C&D Materials Collection sites (job sites) served and tonnage Collected, tonnage Diverted, and Diversion level for each C&D Materials Collection job site. (9) Processing Facility Report
(a) Temporary Equipment or Operations Failure: If Republic is granted a Processing Facility temporary equipment or operational failure waiver, in accordance with Exhibit E of the Agreement, Republic shall include the following documents and information:
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(i) The number of days the Processing Facility temporary equipment waiver or operation failure waiver was in effect;
(ii) Copies of any notifications sent to the City pursuant to Exhibit E of the Agreement, and copies of City notices to Republic pursuant to Exhibit E of the Agreement; (iii) Documentation setting forth the date of issuance of the waiver, the timeframe for the waiver; and,
(iv) A record of the tons of Source Separated Recyclable M aterials, Source Separated Organic Materials, and/or Black Container Waste redirected to an Alternative Facility or Disposed at an Approved Disposal Facility as a result of the waiver, recorded by Collection Vehicle or Transfer vehicle number/load, date, and weight. (b) Quarantined Organic Waste: A record of all compliance agreements for quarantined Organic Waste, as determined by applicable regulatory agencies, that are Disposed of, including the name of Generator, name and contact person of agency declaring the Organic Waste quarantined, date issued, location of final disposition, and the amount of quarantined Organic Waste that was required to be Disposed at a landfill. (c) Compostable Plastics in Green/Brown Containers: Written notification that the Approved Organic Waste Processing Facility(ies) has and or does not have the capabilities to Process and recover the Compostable Plastics included with the Source Separated Organic Materials Transported to the Approved Organic Waste Processing Facility. (d) Plastic Bags in Green /Brown Containers: Written notification to the City that the Approved Organic Waste Processing Facility has or does not have the capabilities to Process and recover plastic bags when it recovers Source Separated Organic Materials. (10) Public Education and Outreach Report
(a) A copy of all education and outreach materials provided to Generators, or otherwise used for education and outreach efforts in accordance with Section 10.9 and Exhibit G of the Agreement, including, but not limited to: flyers, brochures, newsletters, invoice messaging/billing inserts, and website and social media postings. (b) A record of the date and to whom the information was disseminated or direct contact made, in the form of a list that includes: the Generator’s name or account name, the type of education or outreach received; the distribution date, and the method of distribution. (c) The number of Organic Materials Generators and Commercial Edible Food Generators that received information and the type of education and outreach used. (d) For any mass distribution through mailings or bill inserts, Republic shall maintain a record of the date, a copy of the information distributed, and the type and number of accounts that received the information.
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(e) A copy of electronic media, including the dates posted of: social media posts, e- mail communications, or other electronic messages.
(f) Republic shall maintain a record of all technical assistance efforts conducted pursuant to Section 10.9 of the Agreement, including:
(i) The name and address of the Customer/Generator receiving technical assistance, and account number, if applicable.
(ii) The date of any technical assistance conducted and the type of technical assistance, including, but not limited to: site visits, waste assessments, trainings, compliance assessments, direct outreach, workshops, meetings, events, and follow -up communications.
(iii) A copy of any written or electronic educational materials distributed during the technical assistance process.
(iv) A copy of all special event reports submitted to the City in accordance with Section
8.10.3 of the Agreement.
(11) Compliance Monitoring and Enforcement Report
(a) A summary of the total number of SB 1383 non-compliance complaints that were received and investigated, and the number of c ourtesy pick-up notices, non-Collection notices, or non-compliance notice issued based on investigation of those complaints, in accordance with Section 8.15 and Section 8.16 of the Agreement. (b) The total number of Republic route reviews conducted pursuant to Section 8.15.2 of the Agreement.
(c) A copy of written and/or electronic records and documenta tion for all audits, studies, compliance reviews, and all other inspections Conducted pursuant to Section 8.16.1 of the Agreement.
(d) The number of Commercial businesses that were included in a compliance review performed by Republic , and the number of violations found and corrected through compliance reviews, if different from the number reported in subsection 11.f’ of this Section; inc luding a list with each Generator's name or account name, address, and Generator type.
(e) The total number of non-compliance notices issued, categorized by type of Generator. (f) The number of enforcement actions that were resolved, categorized by type of Generator. (g) Copies of all written notices, violations, educational materials, or other enforcement mechanisms issued to non-compliant Generators.
(12) Food Recovery Program Support
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(a) The total number of Generators classified as Tier One and Tier Two Commercial Edible Food Generators located within the City.
(b) The number of Food Recovery Services and Food Recovery Organizations located and operating within the City that contract or have written agreements with Commercial Edible Food Generators for Food Recovery, if known.
(c) The number of Generators participating in the Edible Food Recovery program, as described in Section 10.9.8 of the Agreement.
(13) Vehicle and Equipment Inventory
(a) A list of all vehicles used in performing services under this Agreement including the license plate number, VIN, make, model, model year, purchase date, and engine overhaul/rebuild date (if applicable).
(b) If applicable, the name, physical location, and contact information of each entity, operation, or Facility from whom the RNG was procured.
(c) If applicable, the total amount of RNG procured by Republic for use in Republic vehicles, in diesel gallon equivalents (DGE), including copies of any receipts, invoices, or other similar documentation evidencing procurement . In addition to the amount procured, Republic shall include the total amount actually used in Republic vehicles in the calendar year, if these values are different.
(14) Customer Revenue and City Fee Payment Report. Provide a statement detailing Gross Revenue from all operations conducted or permitted pursuant to this Agreement and report of all City fees paid in accordance with Section 13 of this Agreement.
23.4 Adverse Information
(A) Republic shall provide City two (2) copies of all reports and other written material affecting this Agreement submitted by Republic to the United States Environmental Protection Agency, the California Department of Resources, Recycling & Recovery, the California State Water Resources Control Board, the California Regional Water Quality Control Board, South Coast Air Quality Management District and any other federal, State, regional, or local regulatory agency. Copies shall be submitted to City sim ultaneously with Republi c's filing of such matters with said agencies.
Republic's routine correspondence to said agencies need not be automatically submitted to City, but shall be made available to City upon written request.
(B) Republic shall submit to City copies of all pleadings, applications, notifications, communications, and documents of any kind submitted by Republic to, as well as copies of all decisions, correspondence, and actions by, any f ederal, State, and local courts, regulatory agencies, and other government bodies relating in any manner to Republic's performance of services pursuant to this Agreement. To the degree authorized by law, any confidential data exempt from public disclosure shall be retained in confidence by City and its authorized agents and shall not be made available for public inspection.
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(C) Republic shall submit to City such other information or reports in such forms and at such times as City may reasonably request or require.
(D) All reports and records required under this or any other Section hereof shall be furnished at the sole expense of Republic.
23.5 Disaster Plan
Upon request of City, Republic shall assist City in the preparation of an updated draft disaster debris cleanup implementation plan that sets forth procedures for Collection of debris following a major disaster such as an earthquake, flood, fire , or other similar event. The disaster plan shall address priorities for cleanup at critical facilities, procedures for reimbursement for costs, describe communication plans, list key contact P ersons, and provide maps showing proposed sites for stockpiling of disaster debris that cannot be Transported to the landfill. Republic shall coordinate the implementation of the plan with City's emergency service teams.
23.6 Failure to Report
The refusal of Republic to file any of the reports required, or the inclusion of any materially false or misleading statement or representation made knowingly by Republic in such report , shall be deemed a material breach of the Agreement, and shall subject Republic to all remedies, legal or equitable, that are available to City under this Agreement or otherwise.
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SECTION 24. IDENTIFICATION OF REPUBLIC
Republic operating as "Republic Waste Services of Southern California, LLC" has agreed to use the name of Republic Services to identify itself to the public as the specific organization that shall provide all services under this Agreement. Unless otherwise approved in writing by City, this name shall be used for all correspondence, Billing Statements, directory listings, references, signs, and veh icle and Container identification.
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SECTION 25. CITY'S FLOW CONTROL OPTION/COUNTY AGREEMENT
25.1 Flow Control Option
City shall have the absolute ability to choose the landfill for the D isposal of all Solid Waste requiring Disposal by landfilling (including the residue from Processing of Recyclable Material, Organic Materials, and Construction and Demolition Waste) Collected pursuant to this Agreement (hereinafter City's “Flow Control Option” ). Republic expressly consents to City's ability to direct the landfill for Disposal by landfilling of Discarded Materials hereunder, and waives any and all rights to challenge City's ability to do so, including without limitation any rights under the Commerce Clause of the United States Constitution. As of the Effective Date, City shall be deemed to have exercised its Flow Control Option so as to require delivery of: 1) all Solid Waste requiring Disposal by landfilling Collected hereunder to the Orange County landfill system in a manner consistent with its obligations under the County Agreement (including, without limitation, its obligations related to Solid Waste that is delivered to an Approved Facility prior to being delivered to the Designated Disposal Facility), and Republic has agreed to handle all Solid Waste Collected hereunder in a manner consistent with City's exercise of its Flow Control Option as noted above. At any time during the Term of this Agreement , the Manager may notify Republic in writing that City no longer desires to exercise its Flow Control Option. In the event City so notifies Republic of its desire to cease exercising its Flow Control Option for one or more waste streams, Republic shall have the absolute discretion to utilize any properly and fully permitted landfill of its choosing to Dispose of Solid Waste generated within the City for those waste streams for which the Flow Control Option is waived, provided the use of such landfill by Republic enables it to meet all other requirements of this Agreement. Nothing in this Section shall be construed to allow the City to D ivert from the Approved Recyclable Materials Processing Facility , City’s Solid Waste that is committed to said Approved Recyclable Materials Processing Facility pursuant to this Agreement.
25.2 County Agreement
Republic expressly acknowledges its awareness and understanding of the County Agreement which has been adopted and entered into by City. Moreover, Republic acknowledges that it has had an opportunity to review the County Agreement, and is aware of the provisions thereof that require all Solid Waste Collected in the City to be D isposed of in the Orange County landfill system. Republic further acknowledges that the County of Orange is an intended third party beneficiary of Republic's obligations relating in any way to the Disposal of Solid Waste pursuant to this Agreement and the County Agreement.
Republic hereby adopts as its obligations hereunder such provisions of the County Agreement that require action or inaction by it in carrying out all of Republic’s duties, obligations , and provision of all services required by this Agreement. Republic represents and warrant s that it can and will perform its duties in connection with this Agreement in such a manner as to ensure that City does not breach the terms of the County Agreement as a result of Republic's actions or inaction. In the event City advises Republic in writing that the County Agreement has been terminated, or that it no longer wishes to exercise its Flow Control Option in a manner consistent with the County Agreement, then Republic's obligations pursuant to this paragraph shall be terminated.
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25.3 Residential Organic Materials Diversion Program
25.3.1 Residential Organic Materials
Final disposition of the Residential Organic Materials will occur at the Approved Organic Waste Processing Facility included in Exhibit E. The City retains the right, if so desired, under Section 25.1 of the Agreement, to have the absolute ability to choose the location for the Transportation of Organic Materials, and that the rate paid to Republic will be reduced or increased accordingly if the Transportation and Processing costs of using such Designated Facility are lower or higher than the costs of using the Approved Organic Waste Processing Facilit ies currently one hundred and fifteen dollars and forty-nine cents ($115.49). The City will be charged in accordance with Exhibit A dependent on the final location for the Organic Materials . If the City directs Republic to Transport Residential Organic Materials to the Orange County Greeneries then the total rate per ton for Single Family Commingled Organic Materials will be adjusted using the procedure in Exhibit I. If the City exercises the right to direct Republic to Transport the Residential Organic Materials to a Facility that is not included in Exhibit E other than the Orange County Greeneries , the City and Republic will meet and confer to determine the actual Transportation and Processing components of a per ton rate for these components with a reasonable markup. The actual Tip fee at the City Designated Facility will be utilized in creation of the final per ton fee and will not be subject to any additional markup . Any new Designated Facility fee per tons will be added to the rate schedule in Exhibit A.
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SECTION 26. INDEMNIFICATION
26.1 General
(A) Republic hereby agrees to and shall indemnify and hold harmless City, and its respective elected and appointed boards, commissions, officers, employees, agents , and volunteers (collectively the “Indemnified Parties”) from and against any and all loss, liability, penalty, forfeiture, claim, demand, action, proceeding or suit in law or equity of any and every kind and description (including, but not limited to, injury to and death of any Person and damage to property, or for contribution or indemnity claimed by third parties) arising out of, resulting from, and/or in any way connected with this Agreement and performance by Republic of its obligations hereunder including, but not limited to (1) the negligence or willful misconduct of Republic, its officers, employees, agents, c ompanies, and/or subcontractors in performing services under this Agreement; (2) the failure of Republic, its officers, employees, agents, c ompanies, and/or subcontractors to comply in all respects with the provisions of this Agreement (including without limitation Republic ’s obligation to ensure City complies with the requirements of the County Agreement), A pplicable Laws (including, without limitation, the Environmental Laws), ordinances and regulations, and/or applicable permits and licenses; (3) the acts of Republic, its officers, employees, agents, c ompanies, and/or subcontractors in performing services under this Agreement for which strict liability is imposed by law (including, without limitation, the Environmental Laws); and , (4) any challenge to the approval and execution of, or any provisions hereof in this Agreement (including any claim that the application of any provision hereof violates any provision of the California Constitution). (B) The foregoing indemnity and hold harmless provisions shall apply regardless of whether such loss, liability, penalty, forfeiture, claim, demand, action, proceeding, suit, injury, death, or damage is also caused in part by any of the Indemnified Parties’ negligence, but shall not extend to matters resulting from the Indemnified Parties’ sole negligence, or willful misconduct. (C) Republic further agrees to and shall, upon demand of City, at Republic's sole cost and expense, defend (with attorneys acceptable to City) the Indemnified Parties against any claims, actions, suits in law or equity or other proceedings, whether judicial, quasi -judicial, or administrative in nature, arising or resulting from any of the aforementioned events, and to reimburse the City for any and all costs and expenses City incurs in providing any such defense, either before, during, or after the time Republic elects to provide such defense, including any and all costs incurred in overse eing any defense to be provided herein by Republic.
(D) Republic further agrees, upon demand of the City made by and through the City Attorney, that it shall protect City and appear in and defend the Indemnified Parties, in any claims or actions by third parties, whether judicial, administrative or otherwise, including, but no t limited to disputes and litigation over the definitions of "Solid Waste" or "Recyclable Material," the scope of the rights granted herein, conflicts between the rights granted herei n and rights asserted by other Persons, or the limits of City's authority with respect to the grant of licenses, or agreements, exclusive or otherwise, asserting rights under the Dormant Commerce Clause or any other federal or S tate laws to provide Solid Waste Handling Services in the City.
(E) In addition, Republic's duty to defend, indemnify, and hold harmless the Indemnified Parties herein, includes all fines and/or penalties imposed by CalRecycle, subject to the restrictions set forth in AB
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939, and SB 1383 if the requirements of AB 939 and/or SB 1383 are not met by Republic with respect to the waste stream Collected under this Agreement, and such failure is (1) due to the failure of Republic to meet its obligations under this Agreement, or (2) due to Republic delays in providing information that prevents Republic or City from submitting reports required by A’ 939 and SB 1383 in a timely manner.
(F) In addition, Republic's duty to defe nd, indemnify, and hold harmless herein, includes payment of costs, attorney fees, and damages incurred by and judgments entered against City relating to claims or allegations that City is improperly setting rates for Republic’s services under this Agreement or violating the provisions of Article XIIC and Article XIID of the California Constitution (proposition 218) relating to the imposition, payment , or collection of rates and fees for services provided by Republic under this Agreement.
(G) Claims included within the scope of this paragraph include, but are not limited to, claims for refunds of Solid Waste rates paid by Customers which are received by Republic, and all claims by Republic against City for funds to replace revenue lost as the result of an i nvalidation of the rate increase, or for breach of contract if any rate increase implemented by Republic is invalidated, enjoined , or prohibited in any manner or to any extent. Republic shall have no obligation to refund any fees collected and retained by the City.
(H) 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.
26.2 Hazardous Contaminant, Substances, or Waste Indemnification (A) Without regard to any insurance coverage or requirements, and without limiting the above general indemnification obligation in any way, Republic specifically 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 officials, officers, council member s, employees, contractors , consultants, and agents (hereinafter "Indemnified Parties") harmless from and against any and all claims, actio ns, liabilities, damages, demands, judgm ents, 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 Republic 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, t reat, remove, remediate, or otherwise cleanup, any Hazardous Waste; or, (2) Relates to material Collected, Transported, Recycled, composted, Processed, treated or Disposed of by Republic.
(B) Republic’s obligations pursuant to this Section shall apply, without limitation, to:
(1) Any Claims brought pursuant to or based on the provisions of the Environmental Laws as defined herein;
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(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 by Republic of any Facility, including but not limited to Processing Facilities;
(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 Republic;
(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 whether or not Republic or any Affiliate of Republic is negligent or exhibits willful misconduct. (D) For purposes of this A greement 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, 25117, or 25122.7, or listed pursuant to Section 25140, of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law ); (iii) defined as a “hazardous substance” under Secti on 25316 of the California Health and 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 215501.1 of the California Health and 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 and Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances); (vi) “used oil” as defined under Sect ion 25250.1 of the California Health and Safety Code; (vi i) asbestos; (vii i) 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 Wa ter Pollution Control Act, 33 U.S. C. Section 13.17; (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. Section 6903); (xii) defined as a “hazardous substance” pursuant to the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. S ection 9601, et seq. (42 U.S.C. Section 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 -containing materials; (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 and Safety Code Section 25249.8; or, (xvii) 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 Waste 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
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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.
26.3 Indemnification For Land Application and/or Other Uses of Compost, Compostable Materials, and Anaerobic Digestate.
In the event Republic land applies compostable materials, Compost, anaerobic digestate, Organic Materials, Yard Waste, Food Scraps and/or other such materials, and without regard as to whether Republic sells, donates, and/or otherwise consents to use of such materials for any purpose, Republic agrees to indemnify City as follows:
A. Without regard to any insurance coverage or requirements, and without limiting the general indemnification obligation or the Hazardous Waste i ndemnification contained in this Section 26 in any way, Republic specifically 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, consultant s, 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 Republic 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 compostable materials, Compost, anaerobic digestate, and/or any other such materials or any constituent, compound, chemical , or component contained in said materials, including any condition caused by land application of any of said materials.
B. Republic’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 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.
C. The foregoing indemnity and defense obligations shall apply irrespective of the negligence or willful misconduct of Republic or any Affiliate or subcontractor of Republic.
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D. The provisions of this S ection shall not terminate or expire, shall be given the broadest possible interpretation and shall survive the expiration or earlier termination of this Agreement.
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SECTION 27. REPUBLIC'S BOOKS AND RECORDS; AUDITS
27.1 Maintenance and Inspection of Records
27.1.1 General
Republic shall maintain all records relating to the services provided hereunder, including but not limited to Customer lists, billing records, accounts payable records, maps, AB 939 and SB 1383 compliance records, records reflecting the number of Refuse, Recycling, and Organic Materials routes and route hours by service category (such as Single Family Dwelling, Multiple-Unit Dwelling, Commercial, Roll-off Box, and Special Services), records demonstrating facilities, equipment and personnel used to perform services, records reflecting the number of Refuse, Recycling , and Organic Materials Containers in service by frequency of Collection for each Customer group (such as S ingle Family Dwelling, Multi ple-Unit Dwelling, Commercial, Roll-off Box); records reflecting the number of Roll-off Box pulls, and such other documents and materials which reasonably relate to Republic's compliance with the provisions of this Agreement (the "Records"), for the full Term of this Agreement, and an additional period thereafter of not less than three (3) years, or any longer period required by law. City shall have the right, upon five (5) Business Days advance notice, to inspect the Records. Such Records shall be made available to City at Republic's regular place of business, but in no event outside the County of Orange.
27.1.2 Route Books and Maps
Republic shall prepare route books and maps for each route, which outline specific routing information regarding the daily Collection of City Solid Waste. The books and maps shall be kept current and made available to the Manager for inspection and copying.
27.1.3 Inventory of Operating Assets
On request by City, Republic shall furnish the Manager with an inventory, of a scope approved by the Manager, of major plant, transportation and service operating assets used by Republic to provide services under this Agreement, and such inventory shall be updated at least annually. Such inventory shall indicate the type, capacity, and location of each vehicle and of each operating asset, and the date of acquisition and disposition. The inventory updates shall include operating assets added to provide s ervices required by this Agreement and exclude operating assets removed from providing s ervices required by this Agreement.
27.1.4 Host Fee Payment Records
Republic shall maintain, at a minimum, the following record s, which may be used by City to review the accuracy of Host Fee payments or otherwise under Section 27.3 below:
(A) The amount of tons, number of loads, type of material, jurisdiction of origin, and Customer information, for all material received at the Approved Recyclable Materials Processing Facility; (B) Any additional documentation that would assist City in confirming the accuracy of the reported incoming tonnage and the allocation to the City versus other jurisdictions.
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27.2 CERCLA Defense Records
City views the ability to defend against the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and related litigation as a matter of great importance. For this reason, the City regards the ability to prove where Solid Waste Collec ted in the City was taken for Disposal , (including residue from all Processing Facilities for materials Collected in City) as well as where it was not taken, to be matters of concern. Republic shall maintain data retention and preservation systems which can establish where all Solid Waste Collected in the City (including all residue from P rocessing operations at all Processing Facilities) was landfilled (and therefore establish where it was not landfilled) . Republic shall keep and maintain such logs, records, manifests, bills of lading , or other documents as the Manager may deem to be necessary or appropriate to confirm compliance by Republic with this Agreement and shall retain all weight slips and all other call information provided to Republic’s drivers by the owner or operator of the Disposal Facilities utilized by Republic for Solid Waste Collected in City, including but not limited to the Designated Disposal Facility. Republic shall keep all such records for not less than five (5) years following the termination of this Agreement, and agrees to notify City's Risk Manager, City Clerk, and City Attorney before destroying such records thereafter. At any time, including after the expiration of the Term hereof, Republic shall provide copies of such records to City. The requirements of this Section shall survive the expiration of the Term of this Agreement.
27.3 Periodic Examination of Records
From time to time, and anticipated to be at least once every year, City may request that Republic make any or all of its records related to performance hereunder available to an independent auditor or examiner, to be selected by the City, for auditing and examination purposes (a “Discretionary Audit”). City shall bear the cost of any Discretionary Audit, except as otherwise provided herein. Should any Discreti onary Audit reveal an underpayment of any fee, Host Fee, or other payment required pursuant to this Agreement, the amount of such underpayment shall become due and payable to City not later than fifteen (15) days after written notice of such underpayment i s sent to Republic by City, complete with any additional late charges as set forth herein. If a Discretionary Audit reveals inaccuracies or inconsistencies in more than five percent (5%) of all Customer accounts, either with Republic's operations or billing systems, or an underpayment of Host Fees of more than three percent (3%), Republic shall bear the entire cost of such Discretionary Audit and shall pay a sum necessary to cover such costs to the City within thirty (30) days of demand.
27.4 Route Audit
Republic shall complete an audit at its expense of its Collection routes for all Customers (Residential and Commercial) at such times as may be requested by City, not to exceed once every two (2) years. The timing of such audits is at the City's discretion and may be required to be timed with the issuance of a request for proposals for a new agreement. The route audit, at a minimum, shall consist of an independent physical observation by Person(s) other than the route driver or route supervisor of each Customer in the City. The route audit shall include, as a minimum, the following information for each account:
• Route number;
• Truck number;
• Account name;
• Account number;
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• Account service address;
• Service level per billing system (quantity, size, frequency); • Service level per routing system;
• Observed Containers (quantity, type, and size);
• Container condition; and,
• Proper signage.
Within thirty (30) days after the completion of the route audit, Republic shall submit to City a report summarizing the results thereof which shall include:
• Identification of the routes;
• Truck numbers;
• Number of accounts, by route and in total;
• Types of exceptions observed;
• Number of exceptions by type;
• Total monthly billing, pre-audit;
• Total monthly billing, post-audit (subsequent to corrections of identified exceptions); • Percentage of the number of accounts with errors to the total number of accounts served; and, • Percentage of the "net" change in monthly billing as a result of the audit to the total pre-audit monthly billing.
The report shall include a description of the procedures followed to complete the audit, and shall include the names and titles of those supervising the route audits and the name and titles of those performing the observations. Additionally, the report shall include a description of the pre-audit training of the route auditors, particularly if temporary personnel are used. The report shall also include a description of the changes, and Republic's plans to resolve any exceptions. The results of the au dit shall be available for review by the City or its representative.
27.5 Audited Financial Statements
Republic shall provide City with audited financial statements upon request.
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SECTION 28. TRANSITION OBLIGATIONS
At the end of the Term, or in the event this Agreement is terminated for cause prior to the end of the Term, Republic shall cooperate fully with City and any subsequent Solid Waste enterprise it designates to assure a smooth transition of services. Republic's cooperation shall include, but not be limited to, providing route lists, billing information , and other operating records needed to service all P remises covered by this Agreement. The failure to cooperate with City following termination shall be conclu sively presumed to be grounds for specific performance of this covenant and/or other equitable relief necessary to enforce this covenant. Republic shall provide any new S olid Waste enterprise with all keys, security codes , and remote controls used to access garages, gates, and Container enclosures. Republic shall be responsible for coordinating transfer immediately after its final Collection activities, so as to not disrupt services.
Republic shall provide City with detailed route sheets containing service names and addresses, billing names and addresses, monthly rate and service levels (number and size of Containers and pick-up days) at least ninety (90) days prior to the transition date, provide an updated list two (2) weeks before the transition, and provide a final updated list with any changes, and all keys, access codes, remote controls, or other means of access to Discarded Materials Containers, the day before the transition. Republic shall provide means of access to the new S olid Waste enterprise at least one (1) full Business Day prior to its first day of Collection under the new agreement, and within sufficient time so as to not impede in any way the new S olid Waste enterprise from easily servicing all Containers. Republic shall also provide information requested by City in a timely manner for City’s use in issuing a Request for Proposals, including route, service level, and other operational and financial data.
Prior to the termination date, and in time for use in a Request for Proposals to be issued by City, Republic shall, in writing, provide City, its designee, or future Solid Waste service provider, an updated route audit, complete with service names and addresses, billing addresses, and service levels (Container sizes and days per week), in accordance with Section 27.4 and with the right to purchase any or all of Republic's Containers used in the Collection Area at the Carts’ depreciated value, to be specified at the time the offer is made.
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SECTION 29. EXCUSE FROM PERFORMANCE
29.1 Force Majeure
Parties shall be excused from performing their respective obligations hereunder in the event they are prevented from so performing by reason of floods, earthquakes, other natural disasters , war, civil insurrection, riots, acts of any government (including judicial action), and other similar catastrophic events which are beyond the control of and not the fault of the party claiming excuse from performance hereunder.
29.2 Labor Unrest
Labor unrest, including but not limited to strike, work stoppage or slowdown, sick-out, picketing, or other concerted job action conducted by Republic’s employees or directed at Republic will be considered an excuse from performance to the extent that Republic meets the terms of this Section 29. Notwithstanding other remedies to which City shall be entitled under this Agreement in event of failure to perform, in the event of Republic’s failure to perform, or anticipated failure to perform, due to labor unrest, Rep ublic shall:
Provide a written contingency plan to the City within thirty (30) days prior to the expiration of the labor agreement demonstrating how services will be provided during the period of labor unrest. The contingency plan is subject to City approval, and Republic shall amend the plan to meet City requirements, including reasonably demonstrating how City’s basic Collection and sanitary needs will be met to the City’s satisfaction. Plan shall address, at a minimum, the priority of Collection by Customer type (residents, hospitals, restaurants, nursing homes, etc.) and waste streams, additional Collection options to be provided (drop-off sites, etc.), source of additional personnel to be utilized, and detailed communications procedures to be used.
Notify Manager in writing sixty (60) days prior to the expiration of its drivers’ labor agreement.
Meet the requirements agreed to in the contingency plan.
Meet requirements of Section 29.3 below.
Republic shall meet all requirements under this Section and Section 29.2.1 or City may choose to revoke this excuse from performance offered under this Agreement and may choose to use enforce ment provisions under this Agreement, including, but not limited to, Sections 18.1, 18.7, and 21, in which case Republic is not excused from performance and Republic shall be obligated to continue to provide service notwithstanding the occurrence of any or all of such events.
29.2.1 Republic’s Actions During a Work Stoppage
Republic agrees that in the event s ervice is disrupted due to a labor dispute, Republic shall place a minimum of five (5), forty (40) yard Roll -off Boxes or other Containers of equivalent capacity at point s designated by the City Manager or their designees to serve as Collection points for the Customers within two (2) days of said service interruption. Containers shall be collected and replaced by Republic as needed for no additional charge to ensure Customer may Dispose of Discarded Materials during any work stoppage.
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City and/or Customers may contract temporarily with other parties for the Collection of Solid Waste if Republic is unable to Collect Solid Waste at regularly scheduled times due to a work stoppage.
29.3 Procedures In Event of Excused Performance
The Party claiming excuse from performance under Section 29.1 or 29.2 shall, within two (2) days after such party has notice of such cause, give the other P arty notice of the facts constituting such cause and asserting its claim to excuse under this Section. Throughout service disruption, Republic shall:
Provide City with a minimum of daily service updates.
Shall notify Customers on a real -time basis as to alternativ e Collection procedures. At a minimum, Republic shall update its website and shall provide ongoing updates to City for use on its website. Should enhanced contact technologies become available, Republic shall use such methods upon approval from City.
The interruption or discontinuance of Republic’s services caused by one (1) or more of the events excused shall not constitute a default by Republic under this Agreement. Notwithstanding the foregoing, however, if Republic is excused from performing its obligations hereunder for any of the causes listed in this Section for a period of thirty (30) days or more, the City shall nevertheless have the right, in its sole discretion, to terminate this Agreement by giving ten (10) days' notice, in which case the provis ions relative to taking possession of Republic's land, equipment, and other property under Section 21 will apply.
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SECTION 30. GENERAL PROVISIONS
30.1 Independent Contractor
Republic is an independent contractor and not an officer, agent, servant, or employee of City. Republic is solely responsible for the acts and omissions of its officers, agents, employees, and subcontractors, if any.
Nothing in this Agreement shall be construed as creating a partnership or joint venture between City and Republic. Neither Republic nor its officers, employees, agents, or subcontractors shall obtain any rights to retirement or other benefits which accrue to City employees.
30.2 Pavement Damage
Republic shall be responsible for the cost of repair of any extraordinary d amage to the public streets located within the City resulting from providing the services required hereunder. Ordinary wear and tear is not included as "extraordinary."
30.3 Property Damage
Any physical damage caused by the negligent or willful acts or o missions of employees, agents, or subcontractors of Republic, to private or public property, shall be promptly repaired or replaced at Republic's expense.
30.4 Right of Entry
(A) General. The City will establish the Collection location for all Containers. Republic is responsible for the Collection, in a safe manner of all City Solid Waste placed for Collection at all such designated Collection location.
(B) E nclosures . Where the Collection location is within an enclos ure constructed pursuant to the requirements of the City, Republic shall be responsible for the removal and replacement of all Containers placed therein. Republic shall use sufficient care in the handling of such Containers so as to prevent any damage caus ed by Republic ’s negligence to the enclosure, the enclosure doors, and adjacent facilities or improvements. Republic shall repair at its own expense and within thirty (30) working days after notification from the Manager or Customer, any such enclosure or adjacent facilities or improvements damaged by it except for damage caused by normal wear and tear.
30.5 Law to Govern; Venue
The laws of the State of California shall govern this Agreement. In the event of litigation between the Parties, venue in State trial courts shall lie exclusively in the County of Orange.
30.6 Amendment
This Agreement is intended to carry out City's obligations to comply with the provisions of AB 939 and SB 1383 as implemented by regulations of the CalRecycle, as they may be amended from time to time. In the event that AB 939 , SB 1383, or other Applicable Laws or regulations enacted after this Agreement has become effective, prevent or preclude compliance with one or more provisions of this Agreement, such provisions of the Agreement shall be modified or suspended as may be necessary to comply with such State or federal laws or regulations. Except as otherwise expressly stated herein, no other amendment of this Agreement shall be valid unless in writing duly executed by the Parties and approved by action of the governing body of City.
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30.7 Notices
All notices required or permitted to be given under this Agreement shall be i n writing and shall be personally delivered or sent by United States certified mail, postage prepaid, return receipt requested, and addressed as follows:
To City: City of Anaheim
Attn: Manager, Public Works Operations
400 E. Vermont
Anaheim, CA 92805
To Republic: Republic Waste Services of Southern California, LLC.
Attn: General Manager
1131 North Blue Gum Street,
Anaheim, California 92806
or to such other address as either party may from time to time designate by notice to the other given in accordance with this Section. Notice shall be deemed given on the date served if served personally between the hours of 8:00 a.m. to 5:00 p.m. on any regular Business Day for City's business offices. If mailed, notice shall be deemed given three (3) Business Days from the date such notice is deposited in the United States mail in the manner prescribed above.
30.8 Guarantee of Republic's Performance
Pursuant to a guarantee in substantially the form attached as Exhibit C, Republic Services, Inc., a Delaware corporation ("Guarantor"), has agreed to guarantee Republic's performance of its obligations pursuant to this Agreement, and Republic shall insure that Guarantor shall provide a fully executed copy of the guarantee required by this provision concurrently with Republic's execution of, and delivery of this Agreement, to City.
30.9 Savings Clause
If any non-material provision of this Agreement is for any reason held to be invalid or unenforceable, the invalidity or unenforceability of such provision shall not affect the validity and enforceability of any of the remaining provisions of this Agreement.
30.10 Exhibits Incorporated
Exhibits A through I are attached to and incorporated in this Agreement by reference.
30.11 Joint Drafting
This Agreement shall be interpreted as if it were drafted jointly by the Parties to the Agreement.
30.12 City's Authorized Agent
Notwithstanding anything contained herein to the contrary, and excepting amendments hereto and such actions set forth herein specifically calling for City Council action or approval, the Manager is designated
June 1, 2023 139 City of Anaheim
as the City's authorized agent to take any acti on with regard to any matter, or enforce any right, set forth herein requiring action by the City.
30.13 Integrated Agreement
This Agreement contains the entire integrated agreement and understanding concerning the subject matter herein and supersedes and replaces any prior negotiations, promises, proposals, and agreements between the Parties, whether written or oral. The P arties acknowledge this document has been executed with the consent and upon the advice of counsel. Each of the Parties acknowledge that no party or agent or attorney of any other party has made any promise, representation, or warranty, express or implied, not contained in this Agreement, to induce the other party to execute this instrument. The prior agreement is superseded hereby except as expressly provided otherwise.
30.14 Section Headings
The 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.
30.15 Compliance with Law
Republic shall comply with the rules and regulations governing the operation, use , and services of the Approved or Designated Facilities, shall observe and perform all of the terms and conditions contained in AB 939, SB 1383, the Anaheim City Charter, the Anaheim Municipal Code, all applicable federal, State, and local surface water quality regulations, and all other Applicable Laws, shall obtain and maintain all legal entitlements required for the operating assets and the services required by this Agreement, and shall comply with all valid acts, rules, regulations, orders, and directions of any governmental body applicable to the operating assets and all services provided hereunder.
Republic shall not hire or employ any P erson to perform work for City or allow any P erson to perform work required under this Agreement unless such P erson is a United States citizen or is properly documented and legally entitled to be employed within the U nited States. Republic shall verify, through E-Verify (or, if E-Verify is no longer available, through a comparable electronic database maintained by the United States government), that all Persons employed by Republic are eligible to work in the United States, Republic shall require all of its subcontractors to similarly verify that all Persons employed by such subcontractors are eligible to work in the United States. Republic shall certify to City its compliance with the requirements of this Section.
140 Cit y of Anaheim
CITY OF ANAHEIM,
a municipal corporation
By___________________________
Mayor of the City of Anaheim
DATE OF EXECUTION: ATTEST:
______________________ ______________________________
City Clerk
"CI
TY"
R
EPUBLIC WASTE SERVICES OF SOUTHERN
CALIFORNIA, LLC, a Delaware Limited Liability
Company DBA ANAHEIM DISPOSAL, a wholly-
owned subsidiary of Republic Services Inc., a
Delaware Corporation
By_____________________________
Name: ________________________
Title: _________________________
DATE OF EXECUTION:
______________________
APPROVED AS TO FORM:
ANAHEIM CITY ATTORNEY
By__________________________
Date________________________
June 1, 2023
EXHIBIT A
MAXIMUM RATE SCHEDULE FOR SOLID WASTE HANDLING SERVICES
3/7/2023