Cupertino City Council
December 5, 2023

CITY OF CUPERTINO

CITY COUNCIL
AGENDA
10350 Torre Avenue, Council Chamber and via Teleconference Tuesday, December 5, 2023
5:00 PM
Televised Special Meeting (5:00) and Regular City Council Meeting (6:45)

IN-PERSON AND TELECONFERENCE / PUBLIC PARTICIPATION INFORMATION Members of the public wishing to observe the meeting may do so in one of the following ways:
1) Attend in person at Cupertino Community Hall, 10350 Torre Avenue. 2) Tune to Comcast Channel 26 and AT&T U-Verse Channel 99 on your TV. 3) The meeting will also be streamed live on and online at www.Cupertino.org/youtube and www.Cupertino.org/webcast
Members of the public wishing to comment on an item on the agenda may do so in the following ways:
1) Appear in person at Cupertino Community Hall.
2) E-mail comments by 4:00 p.m. on Tuesday, December 5 to the Council at [email protected]. These e-mail comments will also be forwarded to Councilmembers by the City Clerk’s office before the meeting and posted to the City’s website after the meeting.

Members of the public may provide oral public comments during the Meeting as follows:

Oral public comments will be accepted during the meeting. Comments may be made during “oral communications” for matters not on the agenda, and during the public comment period for each agenda item.

Oral public comments may be made during the public comment period for each agenda item.

Members of the audience who address the City Council must come to the lectern/microphone, and are requested to complete a Speaker Card and identify themselves.

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Completion of Speaker Cards and identifying yourself is voluntary and not required to attend the meeting or provide comments.
3) Teleconferencing Instructions
To address the City Council, click on the link below to register in advance and access the meeting:

Online
Register in advance for this webinar:
https://cityofcupertino.zoom.us/webinar/register/WN_1qDtPC31RsmLVc4WXjeYxw Phone
Dial: 669-900-6833 and enter Webinar ID: 938 7738 4168 (Type *9 to raise hand to speak, *6 to unmute yourself). Unregistered participants will be called on by the last four digits of their phone number.

Or an H.323/SIP room system:

H.323:
162.255.37.11 (US West)
162.255.36.11 (US East)
Meeting ID: 938 7738 4168
SIP: [email protected]
After registering, you will receive a confirmation email containing information about joining the webinar.

Please read the following instructions carefully:

1. You can directly download the teleconference software or connect to the meeting in your internet browser. If you are using your browser, make sure you are using a current and up-to-date browser: Chrome 30+, Firefox 27+, Microsoft Edge 12+, Safari 7+. Certain functionality may be disabled in older browsers, including Internet Explorer.

2. You will be asked to enter an email address and a name, followed by an email with instructions on how to connect to the meeting. Your email address will not be disclosed to the public. If you wish to make an oral public comment but do not wish to provide your name, you may enter “Cupertino Resident” or similar designation.

3. When the Mayor calls for the item on which you wish to speak, click on “raise hand,” or, if you are calling in, press *9. Speakers will be notified shortly before they are called to

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speak.

4. When called, please limit your remarks to the time allotted and the specific agenda topic.

5. Members of the public that wish to share a document must email [email protected] prior to speaking. These documents will be posted to the City’s website after the meeting.

NOTICE AND CALL FOR A SPECIAL MEETING OF THE CUPERTINO CITY COUNCIL NOTICE IS HEREBY GIVEN that a special meeting of the Cupertino City Council is hereby called for Tuesday, December 05, 2023, commencing at 5:00 p.m. in Community Hall Council Chamber, 10350 Torre Avenue, Cupertino, California 95014 and via teleconference.

Said special meeting shall be for the purpose of conducting business on the subject matters listed below under the heading, “Special Meeting."

SPECIAL MEETING
ROLL CALL - 5:00 PM

STUDY SESSION

1. Subject: Receive presentation regarding revenue tax measure options for the City’s General Fund and provide direction to staff on which revenue tax measure(s), if any, to explore for feasibility through opinion research for the November 2024 election Recommended Action: Provide direction to staff regarding exploring the feasibility of one or more potential revenue tax measures-Transaction and Use Tax, Transient Occupancy Tax, Parcel Tax, and/or Business Operations Tax-through opinion research for the November 2024 election
Presenter: Kristina Alfaro, Director of Administrative Services Staff Report
A - Presentation

ADJOURNMENT

REGULAR MEETING
CALL TO ORDER - 6:45 PM

PLEDGE OF ALLEGIANCE

ROLL CALL

CLOSED SESSION REPORT

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CEREMONIAL ITEMS

1. Subject: Certificates of appreciation to volunteers at the Silicon Valley Korean School (SVKS)
Recommended Action: Present certificates of appreciation to volunteers at the Silicon Valley Korean School (SVKS)
A - Certificates of Appreciation

2. Subject: Recognition of Manny Barragan as the City of Cupertino's longest serving employee
Recommended Action: Present certificate of recognition recognizing Manny Barragan as the City of Cupertino's longest serving employee
A - Certificate of Recognition

3. Subject: Recognition of Cupertino Sister City relationships Recommended Action: Present certificates of recognition to Cupertino Sister Cities representing Copertino, Italy; Toyokawa, Japan; Hsinchu, Taiwan; and Bhubaneswar, India
A - Certificates of Recognition

POSTPONEMENTS AND ORDERS OF THE DAY

ORAL COMMUNICATIONS
This portion of the meeting is reserved for persons wishing to address the Council on any matter within the jurisdiction of the Council and not on the agenda for discussion, including informational items. The total time for Oral Communications will ordinarily be limited to one hour. Individual speakers are limited to three (3) minutes. As necessary, the Chair may further limit the time allowed to individual speakers, or reschedule remaining comments to the end of the meeting on a first come first heard basis, with priority given to students. In most cases, State law will prohibit the Council from discussing or making any decisions with respect to a matter not listed on the agenda. A councilmember may, however, briefly respond to statements made or questions posed by speakers. A councilmember may also ask a question for clarification, provide a reference for factual information, request staff to report back concerning a matter, or request that an item be added to a future City Council agenda in response to public comment.

CONSENT CALENDAR (Items 4-9)
Items appearing on the Consent Calendar are considered routine City business and may be approved by one motion. Typical items may include meeting minutes, awards of contracts, the ratification of accounts payable, and second readings of ordinances. Any member of the Council may request to have an item removed from the Consent Calendar based on the rules set forth in the City Council Procedures Manual. Members of the public may provide input on one or more consent calendar items when the

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Mayor asks for public comments on the Consent Calendar.

4. Subject: Approval of the November 14 City Council minutes Recommended Action: Approve the November 14 City Council minutes A - Draft Minutes

5. Subject: Approval of the November 21 City Council minutes Recommended Action: Approve the November 21 City Council minutes A - Draft Minutes

6. Subject: Adopt a maximum rate schedule for Rate Period Four for Recology to provide recycling, organics, and solid waste collection, recycling and organics processing services, and transport for disposal as calculated using the allowed and approved methodology in the Franchise Agreement
Recommended Action: Adopt Resolution No. 23-131 (Attachment A) to:

1. Adopt a maximum rate schedule for Rate Period Four for Recology to provide recycling, organics, and solid waste collection, recycling and organics processing services, and transport for disposal pursuant to the franchise agreement (Attachment B; (FA Exhibit E2)); and

2. Authorize the use of $547,800 of restricted-use enterprise funds to smooth and mitigate the Rate Period Four adjustment
Staff Report
A - Draft Resolution
B - Recology Franchise Agreement
C - HF&H Report - Review of RP 4 Application

7. Subject: Adopt the OPEB and Pension Trust Investment Policies Recommended Action: 1. Adopt Resolution No. 23-132 for the OPEB Trust Investment Policy; and

2. Adopt Resolution No. 23-133 for the Pension Trust Investment Policy Staff Report
A - OPEB Trust Investment Policy (Clean)
B – OPEB Trust Investment Policy (Redline)
C – OPEB Investment Policy Draft Resolution
D – Pension Trust Investment Policy (Clean)
E – Pension Trust Investment Policy (Redline)
F – Pension Investment Policy Draft Resolution

8. Subject: Accept Silicon Valley Clean Energy Community Resilience Grant in the amount of up to $233,963 to purchase two (2) Electric Vehicle Autonomous Renewable Charger (EV ARC) portable solar-powered charging systems

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Recommended Action: 1. Adopt Resolution No. 23-134 accepting up to $233,963 in Community Resilience Grant funding from Silicon Valley Clean Energy and approving budget modification #2324-316 increasing appropriation and estimated revenues by $233,963 in 100-87-829 900-990 for procurement of Electric Vehicle Autonomous Renewable Charger units;

2. Authorize the City Manager to execute all documentation necessary to accept the grant funding; and

3. Authorize the purchase the two (2) Electric Vehicle Autonomous Renewable Charger units, trailer and additional support and maintenance for a total cost of $233,963 from Beam Global
Staff Report
A - Draft Resolution
B - Grant Agreement
C - Beam EV ARC Price Quote
D - BEAM EV ARC Product Informaiton
E - State of California Agreement

9. Subject: Cancellation of the December 19, 2023 City Council meeting Recommended Action: Cancel the December 19, 2023 City Council meeting Staff Report

PUBLIC HEARINGS
Effective January 1, 2023, Government Code Section 65103.5 (SB 1214) limits the distribution of copyrighted material associated with the review of development projects. Members of the public wishing to view plans that cannot otherwise be distributed under SB 1214 may make an appointment with the Planning Division to view them at City Hall by sending an email to [email protected]. Plans will also be made available digitally during the hearing to consider the proposal.

10. Subject: Municipal Code Amendment to Chapter 19.76 and a Conditional Use Permit and Parking Exception for the use of a former public school site by a pre-kindergarten through 9th grade private educational facility and associated Categorical Exemption under CEQA. (Application No.: MCA-2023-003; U-2023-002; EXC-2023-009 Applicant:

City of Cupertino; Grace Stanat on behalf of Tessellations; Location: BA-zoned (Public Building) properties in Cupertino; 1170 Yorkshire Drive; APN# 362-08-001)

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Recommended Action: That the City Council:

1. Find the proposed actions exempt from the California Environmental Quality Act (CEQA) and CEQA Guidelines;

2. Conduct the first reading of Ordinance No. 23-2253: "An Ordinance of the City Council of the City of Cupertino amending Cupertino Municipal Code Chapter 19.76 (Table 19.76.030) to allow privately operated educational uses and privately operated public serving uses in the BA zoning district ";

3. Adopt Resolution No. 23-135 approving the Conditional Use Permit (U-2023-002); and

4. Adopt Resolution No. 23-136 approving the Parking Exception (EXC-2023-009) Presenter: Emi Sugiyama, Associate Planner
Staff Report
A - Draft Ordinance for MCA-2023-003
B - Draft Resolution for U-2023-002
C - Draft Resolution for EXC-2023-009
D - Plan Set (Abridged Pursuant to SB1214)
E - Applicant's Project Description
F - Planning Commission Resolution 2023-14
G - Planning Commission Resolution 2023-15
H - Planning Commission Resolution 2023-16

ACTION CALENDAR

11. Subject: Proposed amendments to Municipal Code Chapter 19.12, Chapter 19.28 and Chapter 19.112 regarding Two-Story Permit and Accessory Dwelling Unit (ADU) laws. (Application No. MCA-2023-002; Applicant: City of Cupertino; Location: City-wide) Recommended Action: That the City Council conduct the public hearing and conduct the first reading of Ordinance No. 23-2254: "An Ordinance of The City Council of the City of Cupertino to amend Municipal Code Chapter 19.12, Chapter 19.28 and Chapter

19.112 Regarding Two-Story Permit and Accessory Dwelling Unit (ADU) Laws" (Attachment A) to amend the following:
a. Chapter 19.12, Administration, and
b. Chapter 19.28 Single-Family Residential (R-1) Zones. c. Chapter 19.112, Accessory Dwelling Units (ADU)
Presenter: Gian Martire, Senior Planner
Staff Report
A - Draft Ordinance (Clean)
B - Draft Ordinance (Redline)
C - Planning Commission Resolution No. 2023-17
D - Gov. Code Sections 65852.2 and 65852.22
E - Public Comment

COUNCIL REPORTS AND COMMENTS

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12. Subject: Councilmember Reports
A - Council Reports, Fruen
B - Council Reports, Mohan
C - Council Reports, Moore
D - Council Reports, Wei

CITY MANAGER REPORT

ORAL COMMUNICATIONS - CONTINUED

INFORMATIONAL ITEMS
Information items are intended to provide background information and routine reports to Councilmembers and the public, without discussion by Council. Members of the public wishing to comment on informational items should do so during oral communications.

13. Subject: Update regarding Vallco's SB 35 project approval Recommended Action: Receive the update regarding Vallco's SB 35 project approval Informational Memorandum
A – Email from Reed Moulds, Managing Director, Sand Hill Property Company, dated 11/29/2023

14. Subject: Update on Main Street
Recommended Action: Receive the update on Main Street
Informational Memorandum
A – November 14 Planning Commission staff report
B – Director’s Decision / Main Street Note to File

COUNCIL AND STAFF COMMENTS AND FUTURE AGENDA ITEMS

ADJOURNMENT
Lobbyist Registration and Reporting Requirements: Individuals who influence or attempt to influence legislative or administrative action may be required by the City of Cupertino’s lobbying ordinance (Cupertino Municipal Code Chapter 2.100) to register and report lobbying activity. Persons whose communications regarding any legislative or administrative are solely limited to appearing at or submitting testimony for any public meeting held by the City are not required to register as lobbyists.

For more information about the lobbying ordinance, please contact the City Clerk’s Office at 10300 Torre Avenue, Cupertino, CA 94107; telephone (408) 777-3223; email [email protected]; and website: www.cupertino.org/lobbyist.

The City of Cupertino has adopted the provisions of Code of Civil Procedure §1094.6; litigation challenging a final decision of the City Council must be brought within 90 days after a decision is announced unless a shorter time is required by State or Federal law.

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Prior to seeking judicial review of any adjudicatory (quasi-judicial) decision, interested persons must file a petition for reconsideration within ten calendar days of the date the City Clerk mails notice of the City’s decision. Reconsideration petitions must comply with the requirements of Cupertino Municipal Code §2.08.096. Contact the City Clerk’s office for more information or go to http://www.cupertino.org/cityclerk for a reconsideration petition form.

In compliance with the Americans with Disabilities Act (ADA), anyone who is planning to attend this meeting who is visually or hearing impaired or has any disability that needs special assistance should call the City Clerk's Office at 408-777-3223, at least 48 hours in advance of the meeting to arrange for assistance. In addition, upon request, in advance, by a person with a disability, meeting agendas and writings distributed for the meeting that are public records will be made available in the appropriate alternative format.

Any writings or documents provided to a majority of the Cupertino City Council after publication of the packet will be made available for public inspection in the City Clerk’s Office located at City Hall, 10300 Torre Avenue, Cupertino, California 95014, during normal business hours; and in Council packet archives linked from the agenda/minutes page on the Cupertino web site.

IMPORTANT NOTICE: Please be advised that pursuant to Cupertino Municipal Code section

2.08.100 written communications sent to the Cupertino City Council, Commissioners or City staff concerning a matter on the agenda are included as supplemental material to the agendized item. These written communications are accessible to the public through the City’s website and kept in packet archives. Do not include any personal or private information in written communications to the City that you do not wish to make public, as written communications are considered public records and will be made publicly available on the City website.

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CITY OF CUPERTINO
Agenda Item
23-12823 Agenda Date: 12/5/2023
Agenda #: 1.

Subject: Receive presentation regarding revenue tax measure options for the City’s General Fund and provide direction to staff on which revenue tax measure(s), if any, to explore for feasibility through opinion research for the November 2024 election
Provide direction to staff regarding exploring the feasibility of one or more potential revenue tax measuresTransaction and Use Tax, Transient Occupancy Tax, Parcel Tax, and/or Business Operations Tax-through opinion research for the November 2024 election
Presenter: Kristina Alfaro, Director of Administrative Services CITY OF CUPERTINO Page 1 of 1 Printed on 11/29/2023
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CITY COUNCIL STAFF REPORT
Meeting: December 5, 2023
Subject
Receive presentation regarding revenue tax measure options for the City’s General Fund and provide direction to staff on which revenue tax measure(s), if any, to explore for feasibility through opinion research for the November 2024 election.

Recommended Action
Provide direction to staff regarding exploring the feasibility of one or more potential revenue tax measures—Transaction and Use Tax, Transient Occupancy Tax, Parcel Tax, and/or Business Operations Tax—through opinion research for the November 2024 election.

Reasons for Recommendation
The City Council’s current work program includes research on potential revenue tax measures. This research has become important as the City faces a structural budget deficit, with ongoing revenues below ongoing expenditures. In addition to the identified revenue measures, budget-balancing strategies can include expense reductions and service fee increases.

To assist with this work, the City re-engaged Urban Futures, Inc. (“UFI”) to provide an update on the following revenue tax measures: Transaction and Use Tax (“TUT”), Transient Occupancy Tax (“TOT”), Parcel Tax, and Business Operations Tax. UFI has evaluated and ranked each revenue option, considering each tax’s adequacy and certainty of generated revenue, equity and fairness for Cupertino residents and businesses, transparency of the tax structure, and simplicity of implementing and administering the tax.

UFI has ranked TUT as the top option, followed by TOT, Parcel Tax, and Business Operations Tax.
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Transaction and Use Tax (TUT)
TUT is the local equivalent of sales tax. A State cap of 9.25% limits the total amount of combined sales tax and TUT in a jurisdiction, subject to special state legislation that raises the cap for a particular region or county. In Santa Clara County, special legislation has raised the cap to 9.375%. The current rate in Cupertino is 9.125%, leaving a 0.25% TUT available. A general TUT requires a ballot initiative approved by a majority vote (50% plus 1 vote) for enactment. Generally, this type of initiative is more likely to be approved by voters than other initiatives. TUT is ranked as the top option because using the remaining

0.25% TUT rate keeps the City aligned with surrounding communities, spreads the tax burden across residents, businesses, and visitors (daytime work force), and generates meaningful annual revenue (estimated at $5.4 million). Additionally, there is a potential for the County or a regional agency to propose a ballot measure that would take up the remaining 0.25% TUT capacity.

City/Area Rate*
Santa Clara Countywide 9.125%
Campbell 9.375%
Los Gatos 9.25%
Milpitas 9.375%
San Jose 9.375%
*Effective rates as of April 2023
Transient Occupancy Tax (TOT)
TOT is a tax on short-term stay room rentals, commonly known as a hotel tax. This tax requires a ballot initiative approved by a majority vote for enactment. This option is ranked second because of its higher likelihood of voter approval and because the tax is paid by non-residents. This item is disfavored relative to the TUT due to the lower overall revenue potential. For example, if the City increased its current 12% TOT rate to 15% (which would place it as one of the highest TOT rates in Santa Clara, San Mateo, and San Francisco Counties), the estimated additional annual revenue generated is $1.9 million.

City/Area Rate*
Gilroy 9%
Mountain View, San Jose, Saratoga 10%
Morgan Hill 11%
Campbell, Los Gatos, Sunnyvale 12-12.5%
Los Altos, Milpitas, Santa Clara 13.5-14%
Palo Alto 15.50%
Cupertino 12%
*Rates as of November 2022
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Parcel Tax
A parcel tax is a non-ad valorem (non-value based) tax on parcels of property. A parcel tax requires a ballot initiative approved by a two-thirds vote for adoption. This option is ranked third primarily because of the challenging supermajority voter requirement and because a flat parcel tax is generally considered regressive. While the regressive nature of the flat parcel tax can be mitigated by using a per square foot parcel tax rate, the increased equity comes at the cost of eroding the benefits of the parcel tax’s efficiency, simplicity, and transparency. A rate equivalent to the recently expired local school district parcel tax ($250/parcel or $0.020 per SF) is significantly higher than most parcel taxes in surrounding communities but generates significantly less revenue than a TUT.

City/Area Rate/yr.

Santa Clara - Libraries $34 parcel
Santa Clara – Open Space $24 parcel
San Jose – Libraries $30 parcel
North County - Libraries $76 parcel
Santa Clara Water Dist. $0.006 per sf
El Matador - Roads $350-$750 parcel
Business Operations Tax
A business operations tax is a tax on businesses for the privilege of conducting business within the City. This tax requires a ballot initiative approved by a majority vote for enactment. A business operations tax can be either a fixed/flat rate per business (often varies by type of business) or a variable rate based on some measurable aspect of the business operations, such as gross receipts/payroll, number of employees (headcount), square footage of business, etc. Cities have wide discretion in determining methodology, rates, and applicability (cannot be discriminatory or confiscatory, and state/federal law exempts certain activities).

This option is ranked last for the following reasons. First, the tax burden falls solely on local businesses, and while setting varying rates and caps can help distribute this burden differently across business sizes, it raises questions of equity. Secondly, the City currently maintains a notably low business license tax rate compared to neighboring cities on a per capita basis, and if an employee count tax is adopted that placed the City at the top of the region ($75 per capita), the resulting annual revenue still falls significantly short of the tax revenue generated by the 0.25% TUT. Additionally, this scenario would likely necessitate shifting the tax burden to a few large businesses, potentially impacting the locational choices of existing and future businesses, which could erode annual tax revenues. 13 CC 12-05-2023
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City Annual Revenue Per Capita
Mountain View* $6 million $74
Sunnyvale $2.1 million $14
Los Gatos* $1.1 million $34
Santa Clara* $6 million $47
Los Altos $490,000 $16
Palo Alto* $9.6 million $144
Campbell $723,000 $17
* New or updated within last 5 years
Conclusion
The table below presents UFI's recommended ranking of revenue tax measures, along with estimated annual revenue figures, and a detailed breakdown of the pros and cons of each option.

Rank
Revenue
Option
Est.

Annual
Revenue Pros Cons
1 Transaction
and Use Tax
(TUT)
$5.4
million
 50% + 1 vote required
with high voter
approval in recent
elections.
 Generates most
revenue with rate
proportionate to
surrounding cities.
 Tax paid by residents,
businesses and
visitors/daytime
workforce.
 “Use it or lose it.”
 TUT is more volatile
and subject to annual
revenue fluctuation than
parcel tax but not TOT.
 TUT not applicable to
large portion of
business-to-business
sales in which purchaser
located outside the City.
2 Transient
Occupancy
Tax (TOT)
$1.9
million
 50% + 1 vote required
with high voter
approval in recent
elections.
 Tax paid by nonresidents/visitors.
 TOT is more volatile
and subject to annual
revenue fluctuation than
TUT and parcel tax.
 Smallest overall revenue
generation unless rate
significantly higher than
surrounding
communities.
3 Parcel Tax $3.7
million
 Parcel tax has lowest
volatility and annual
revenues are very
stable.
 2/3 vote required.
 Tax paid by residents
and businesses.
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 High voter approval
but for restricted
special purposes (not
General Fund).
 Flat/fixed parcel tax
often considered
regressive tax (but can
use variable rate to
improve equity).
 Rate equivalent to
expired school parcel
tax generates
significantly less
revenue than TUT and
is higher than other
parcel taxes in the area.
4 Business
Operations
Tax –
Employee
Count
$4.1
million
 50% + 1 vote required
with high voter
approval over last
decade.
 Employee count tax
has low volatility but
could erode annual
revenues if tax
impacts business
location decisions.
 Tax paid exclusively by
local businesses, but
varying rates/caps can
allocate burden.
 Setting rate at top of
region generates
significantly less tax
revenue than TUT, and
likely requires shifting
tax burden to a few very
large businesses.

If Council wishes to explore a revenue tax measure, UFI’s analysis shows that a TUT revenue measure has the most upside given the meaningful annual revenue that can be generated by a 0.25% TUT increase, the high voter approval rate for TUT measures, the tax burden being shared by residents, businesses, and visitors, and the fact that a TUT rate of 9.375% (as opposed to the City’s current rate of 9.125%) is proportionate to other Santa Clara County cities and lower than many San Mateo County cities. Additionally, Cupertino residents may ultimately pay the 9.375% rate, given the potential for the County or a regional agency placing a TUT measure on the ballot in future years for the remaining capacity. The City’s adoption of a TUT would ensure these additional local sales tax revenues stay local.

Next Steps
If Council directs staff to explore the feasibility of a revenue tax measure, staff would work with its opinion research consultant to develop and conduct a survey based on the City’s voter demographics. Survey results would then be presented to Council for further action.

Sustainability Impact
No sustainability impact.

Fiscal Impact
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Manager’s Office and Administrative Services. There are sufficient savings in the revenue tax measure budget to cover an additional $38,000 in costs. If a revenue tax measure is placed on the ballot and approved, General Fund revenues could be augmented with an estimated $1.9 million to $5.4 million annually, depending on the revenue tax measure selected.

California Environmental Quality Act (CEQA)
Not applicable.
_____________________________________
Prepared by: Thomas Leung, Budget Manager
Reviewed by: Kristina Alfaro, Director of Administrative Services Matt Morley, Assistant City Manager
Approved for Submission by: Pamela Wu, City Manager
Attachments:

A – Presentation
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CITY OF CUPERTINO,

CALIFORNIA
December 5, 2023
Updated
Tax
Revenue
Options
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Presentation Outline
Tax Revenue Options - General Fund 3
Transaction and Use Tax (TUT) 5
Transient Occupancy Tax (TOT) 8
Parcel Tax 11
Business Operations Tax 15
Recommendations & Next Steps 19
2 18
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Tax Revenue Options
General Fund
3 19
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General Fund Revenue Taxes – 4 Basic Considerations

1. Adequacy and Certainty
• Sustainably generates annual needed revenue
• Not subject to significant variation (low volatility)

2. Equity and Fairness
• Fiscal burden appropriately spread
• Proportionate to surrounding communities
• Does not highly skew economic incentives

3. Transparency
• Easy to find information on the revenue/tax structure and understand how it operates

4. Simplicity
• Does not require multiple ballot measures (voter confusion and fatigue) • Not highly burdensome, costly or complicated to administer (by city or payors) 4 20
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Transaction and Use Tax (TUT)
Basics of a TUT
• Functionally similar to state Sales and Use
Tax (SUT) with important difference:
 SUT – Point of Sale
 Where did sales transaction occur?
 TUT – Point of Delivery/Use
 Where did Buyer receive goods or put
them to use?
• 2022 – 73% of TUT measures for new or
increased rate approved (30 of 41)
• 2020 - 74% of TUT measures for new or
increased rate approved (65 of 88)
Santa Clara Countywide
Base Rate 9.125%
State Sales Tax 6.25%
Bradley-Burns Local Share 1.00%
Santa Clara County Transit District (1976) 0.50%
Santa Clara County Valley
Transportation Authority (2006) 0.50%
Santa Clara VTA BART O&M
Transactions and Use Tax (2012) 0.125%
Santa Clara County
Retail Transactions and Use Tax (2013) 0.125%
Silicon Valley Transportation
Solutions Tax (2017) 0.50%
Peninsula Corridor JPA
Retail Transactions and Use Tax (2020)* 0.125%
5 *Authorized by special State legislation.
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Transaction & Use Tax (TUT) • Available TUT to City = 0.25% • Statewide Cap = 9.25% + special leg. • County Rate = 9.0% + .125% special leg. • Available TUT to Cupertino = 0.25% • Total Rate in Cupertino w/ TUT = 9.375% • Additional Annual Revenue (est.) • @ 0.25% = $5.4 million annually • Excludes roughly 90% business-tobusiness sales (67% of City’s net state sales tax from 2 large multi-nationals)
• Realization rate on remaining 33% is
assumed close to 100% due to type of
businesses (plus additional est. revenues
from auto sales)
City/Area Rate*
Santa Clara Countywide 9.125%
Campbell 9.375%
Los Gatos 9.25%
Milpitas 9.375%
San Jose 9.375%
San Mateo Countywide 9.375%
Belmont 9.875%
Brisbane 9.875%
Burlingame 9.625%
Daly City 9.875%
East Palo Alto 9.875%
Pacifica 9.875%
Redwood City 9.875%
San Bruno 9.875%
San Mateo 9.625%
South San Francisco 9.875%
San Francisco 8.625%
Alameda Countywide 10.25%
*Effective rates as of April 2023.
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Transaction & Use Tax (TUT)
 Pros:
 Standard Voter Approval Requirement – 50% + 1 voter approval required for TOT.  High Approval – recent TUT measures in 2020 and 2022 have high approval rates (74% and 73% respectively) despite COVID-19 pandemic.
 Competitiveness/Adequacy – 0.25% TUT rate keeps City generally proportionate to surrounding communities while generating more revenue than TOT or parcel tax.  Who Bears Tax Burden – tax burden spread across residents, businesses and visitors (which includes significant daytime workforce – 60,000+ pre-pandemic).  “Use it or lose it” – 0.25% TUT currently available to the City could be obligated (“used”) if a regional agency or the county passed a new or increased TUT measure.

Once obligated, City’s only option would be special state legislation.  Cons:
o Volatility – sales tax is more elastic than property/parcel tax but less than TOT (generally correlates with overall economic trends).
o Equity – TUT is not applicable to large number of business-to-business sales in which purchaser is located outside the City.
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Transient Occupancy Tax (TOT)
Basics of a TOT
• Authorized under Revenue and Tax Code s.
7280 (stays of 30 days or less) imposed on
occupant based on room rate
• TOT has been called a “painless” tax – paid by
non-residents – but can impact hotel
occupancy and future growth if
disproportionate to surrounding areas
• 2022 – 77% of TOT measures to increase rate
approved (24 of 31)
• 2020 – 91% of TOT measures to increase rate
approved (21 of 23)
Statewide Facts on TOTs*
• Most cities and counties have a TOT
(over 480 total)
• Rates range from 3.5% to 15.5%
(Palo Alto)
• Statewide mean rate = 10.2%
• On average, TOT provides 7% of
General Fund revenue
*Data as of FY 2021 – CaliforniaCityFinance.com
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Transient Occupancy Tax (TOT)
• City’s Current TOT = 12.0%
• Additional Annual Revenue (est.)
• @ 13.0% = $625,000
• @ 14.0% = $1.25 million
• @ 15.0% = $1.875 million
• Recent Trends in City’s TOT
• City’s TOT ordinance already updated to
improve collection from short-term rentals
(e.g., Airbnb, VRBO, etc.)
• Trendline for TOT growth is conservative
(1.9% annual growth). Hospitality industry
continues to recover post-pandemic and
seek a “new normal.”
City/Area Rate*
Santa Clara County
Gilroy 9.0%
Mountain View,
San Jose, Saratoga 10.0%
Los Altos, Morgan Hill 11.0%
Campbell, Los Gatos, Sunnyvale 12.0 - 12.5%
Los Altos, Milpitas, Santa Clara 13.5 - 14.0%
Palo Alto 15.5%
San Mateo County
Burlingame, Colma, East Palo
Alto, Foster City, Menlo Park,
Pacifica, Redwood City

12.0%
Daly City 13.0%
Belmont, Brisbane, Millbrae, San
Bruno, San Carlos, San Mateo,
South San Francisco

14.0%
Half Moon Bay 15.0%
San Francisco 14.0%
*Rates as of November 2022.
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Transient Occupancy Tax (TOT)
 Pros:
 Standard Voter Approval Requirement – 50% + 1 voter approval required for TOT.  High Approval – recent TOT measures in 2020 and 2022 have high approval rates (91% and 77% respectively) despite COVID-19 pandemic.
 Who Bears Tax Burden – TOT tax burden borne almost exclusively by non-residents.  Cons:
o Competitiveness - City is currently in middle of regional TOT rates @ 12% but adding 3% would place it second only to Palo Alto for the region (and make it one of the highest in state).
o Adequacy - smallest overall revenue generation unless rate significantly higher than surrounding communities (increasing competitiveness concern – see above). o Volatility – TOT is more elastic than either TUT or parcel tax, resulting in higher potential fluctuation in annual revenue.
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Parcel Tax
Basics of a Parcel Tax
• Non-ad valorem (non-value based) tax levied on
parcels of property
• Methodology: Either a fixed/flat rate per-parcel
or a variable rate depending on the size, use, or
number of units on the parcel
• Can establish different rates for residential &
commercial property but rate must be
applied uniformly
• Can include inflationary index
• Voter approval required: 2/3 vote required (funds
restricted to specified purposes); only majority
approval required if proposed by citizen initiative
Statewide Facts - Parcel Tax
• Since 2010, largest percentage of
approved parcel taxes (41%) are for
education.
• Most common methodology: flat
rate per parcel.
• For cities, between 2010 and 2022,
66% of proposed parcel taxes were
approved by the required 2/3 vote.
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Parcel Tax
• No current City parcel tax
• City’s clean water/storm protection
assessments are property fees (not taxes).
• Schools – Fremont Union HS $98 parcel tax
was reauthorized in 2020 (expires 2028).

Cupertino Union $250 parcel tax expired in
2022 (reauthorization with increase to $398
rejected in by voters in 2021).
• Parcel tax measures in Santa Clara &
San Mateo counties
• 18 non-school parcel taxes on ballot from
2008 to 2022.
• 83% approved.
• All for special purposes: libraries, roads,
police, water and open space.
• Since 2018, 24 school parcel taxes on ballot
with only 54% approved.

City/Area Rate/yr.

Santa Clara County
Santa Clara - Libraries $34 parcel
Santa Clara – Open Space $24 parcel
San Jose – Libraries $30 parcel
North County - Libraries $76 parcel
Santa Clara Water Dist. $0.006 per sf
El Matador - Roads $350-$750 parcel
San Mateo County
E. Palo Alto – Office Space $2.50 per sf
Portola Valley – Roads $950 parcel
Highlands – Police $65 parcel
San Mateo – Police & Fire $65 parcel
Atherton – Police $750 parcel*
*Not renewed in 2017
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Parcel Tax
Additional Annual Revenue (est.)
Fixed/Flat Rate per Parcel
Parcel Type # of Parcels** Per Parcel Tax Annual Revs. (est.) Single-Family Residential (SFR)* 14,152 $250 $3,537,900 Multi-Family (three-family & larger) 205 $250 $51,250
Commercial/Office/Ind. 471 $250 $117,750
Total $3,706,900
Variable Rate per Square Foot (SF) of Parcel Size
Parcel Type (annual tax median parcel size) Total Ac.** Per SF Tax Rate Annual Revs. (est.) SFR* – 5,000 sf ($27) 178 $0.021 $163,010
SFR* – 5,000 to 10,000 sf ($155) 1,499 $0.021 $1,370,768 SFR* – 10,000 to 17,500 sf ($247) 310 $0.021 $283,210
SFR – Over 17,500 sf ($613) 407 $0.021 $372,124
Multi-Family ($219) 232 $0.021 $212,224
Commercial/Office/Ind. ($613) 1,500 $0.021 $1,372,140
Total $3,773,476
13 *includes condos, townhomes & duplexes
**excludes vacant parcels and parcels with $0 assessed value; and assumes 10% SFR exemption rate 29 CC 12-05-2023
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Parcel Tax
 Pros:
 Low Volatility – parcel tax revenue not impacted by overall economic trends (non-ad valorem) and inflationary index helps revenues keep pace with rising expenses.  Flexibility – parcel tax provides some flexibility in designing tax structure to help mitigate equity concerns (see below) using a variable rate.  High Approval but for Special Purpose – voter approval rates for city parcel taxes has been strong (83%) but all have been restricted to special not general purposes.  Cons:
o 2/3 Voter Approval Required – state law requires 2/3 approval by electorate. o Equity – flat/fixed rate parcel tax often considered very regressive but can be mitigated with variable rate (see above).
o Adequacy/Competitiveness - rate equivalent to recently expired local school district parcel tax ($250/parcel or $0.020 per SF) is significantly higher than most parcel taxes in surrounding communities but generates significantly less revenue than TUT. o Who Bears Tax Burden – parcel tax burden borne exclusively by residents and businesses. 14 30
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Business Operations Tax
Basics of Business Operations Tax
• Tax on businesses for privilege of conducting
business within the City.
• Methodology: Either a fixed/flat rate per
business (often varies by type of business) or
a variable rate based on some measurable
aspect of the business operations, such as:
gross receipts/payroll, number of employees
(headcount), square footage of business, etc.
• Cities have wide discretion in determining
methodology, rates and applicability (cannot
be discriminatory or confiscatory, and
state/federal law exempts certain activities).
• Tax is only on business activities conducted
within the City. Multi-jurisdiction businesses
must be able to apportion.

Statewide Facts – Business
Operations Tax
• More than 95% of cities impose one
or more business operations taxes.
• Average city generates around 3%
of revenue from business
operations taxes.
• Top 20 cities generate between 10%
and 25% of total revenue from one
or more business operations taxes.
• Since 2010, 65 business operations
taxes on ballot with 74% approved
(excludes cannabis) statewide. 92%
approved in Bay Area region.
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Business Operations Tax
• City’s Existing Business Operations Taxes
• $75 flat rate per business + rate per square
foot of the business (ranging from $0.02/sf
for small businesses to $0.0025/sf for
largest business)
• City also has operations taxes (both flat and
variable) for specific businesses, such as
apartments (per unit), hotels (per room), taxis
(per vehicle), theaters (per seat), etc.
• Annual Amount Generated = $725,000 ($12
per capita)
16 City Annual
Revenue
Per
Capita
Santa Clara County
Mountain View* $6 million $74
Sunnyvale $2.1 million $14
Los Gatos* $1.1 million $34
Santa Clara* $6 million $47
Los Altos $490,000 $16
Palo Alto* $9.6 million $144
Campbell $723,000 $17
San Mateo County
San Carlos $1.2 million $40
San Mateo $6.3 million $62
Foster City $1.6 million $48
* New or updated within last 5 years
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Business Operations Tax
17 Employee Count Tax* (est.)
Employee
Range
# of
Businesses
% of
Businesses
in Tier
Estimated
Employee
Count
Base Rate
Per
Business
Per
Employee
Rate
Total Tax
Effective
Tax Rate
Per
Employee
Effective
Tax Rate
Per Avg.

Business
1-9 3,128 89.37% 3,400 $25 $0 $78,200 $23 $25
10-49 300 8.57% 4,000 $100 $15 $90,000 $23 $300
50-99 40 1.14% 2,400 $250 $25 $70,000 $29 $1,750
100-249 25 0.71% 3,300 $250 $50 $171,250 $52 $6,850
250-499 5 0.14% 1,300 $250 $75 $98,750 $76 $19,750
500-999 1 0.03% 600 $250 $100 $60,250 $100 $60,250
1,000-4,999 - 0.00% - $250 $125 - - -
5,000+ 1 0.03% 24,000 $250 $150 $3,600,250 $150 $3,600,250 Totals 3,500 100.0% 39,000 $4,168,700
*Business and employee count data provided by City from 2018 research. Current data likely different post-Covid. 33 CC 12-05-2023
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Business Operations Tax
18  Pros:
 Standard Voter Approval Requirement – 50% + 1 voter approval required for business license taxes.
 High Approval – since 2010, business license tax measures in Bay Area Region have high voter approval rates (94%).
 Low Volatility – business operations tax based on employee count (pandemic notwithstanding) provides a stable tax base, subject to unknown longer-term impact on business location decisions (see below)
 Cons:
o Who Bears Tax Burden/Equity – tax burden borne exclusively by local businesses but setting varying rates and caps can allocate the tax burden differently across different size businesses.
o Competitiveness/Equity/Adequacy - City currently has a very low business license tax rate compared to surrounding cities as measured on a per capita basis. If an employee count tax is set at top rate in the region ($75 per capita), the annual tax revenue generated is significantly less than the 0.25% TUT and it likely requires shifting tax burden to a few very large businesses. Additionally, there is an unknown potential impact on locational choices of existing and future businesses that could erode the annual tax revenues. 34
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Recommendations &
Next Steps
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Tax Revenue Options – Recommended Ranking
20 Rank Revenue
Option
Est.

Annual
Revenue
Pros Cons
1 Transaction
& Use Tax
(TUT)
$5.4
million
• 50% + 1 vote required with high
voter approval in recent
elections.
• Generates most revenue with
rate proportionate to
surrounding cities.
• Tax paid by residents,
businesses and
visitors/daytime workforce.
• “Use it or lose it.”
• TUT is more volatile and subject to
annual revenue fluctuation than
parcel tax but not TOT.
• TUT not applicable to large portion
of business-to-business sales in
which purchaser located outside the
City.
2 Transient
Occupancy
Tax (TOT)
$1.9
million
• 50% + 1 vote required with high
voter approval in recent
elections.
• Tax paid by nonresidents/visitors.
• TOT is more volatile and subject to
annual revenue fluctuation than TUT
and parcel tax.
• Smallest overall revenue generation
unless rate significantly higher than
surrounding communities.
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Tax Revenue Options – Recommended Ranking (cont.)
21 Rank Revenue
Option
Est.

Annual
Revenue
Pros Cons
3 Parcel Tax $3.7
million
• Parcel tax has lowest volatility
and annual revenues are very
stable.
• High voter approval but for
restricted special purposes
(not general fund).
• 2/3 vote required.
• Tax paid by residents and businesses.
• Flat/fixed parcel tax often considered
regressive tax (but can use variable
rate to improve equity).
• Rate equivalent to expired school
parcel tax generates significantly less
revenue than TUT and is higher than
other parcel taxes in the area.
4 Business
Operations
Tax –
Employee
Count
$4.1
million
• 50% + 1 vote required with
high voter approval over last
decade.
• Employee count tax has low
volatility but could erode
annual revenues if tax impacts
business location decisions.
• Tax paid exclusively by local
businesses, but varying rates/caps
can allocate burden.
• Setting rate at top of region generates
significantly less tax revenue than
TUT, and likely requires shifting tax
burden to a few very large businesses.
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November 2024 Ballot Measure – Potential Timeline
Dates Task
January & February Community opinion research conducted.

March & April Staff develops options for revenue measure based on community opinion research and feedback, Council input, and other relevant considerations.

April to August Public information disseminated explaining why and how Council is considering placing a revenue measure on the ballot.

June Council decision on appropriate revenue measure and direction for staff to prepare ballot measure language and required resolutions.

July 16, 2024 Last regularly scheduled meeting of Council for Introduction/First Reading of revenue measure ordinance.*
August 6, 2024 Last regularly scheduled meeting of Council for Second Reading/Adoption of revenue measure ordinance and approval of resolution calling the election.

August 9, 2024 Deadline for City submission of ballot measure to Registrar of Voters.

August 20, 2024 Deadline for City’s submittal of impartial analysis of ballot measure to Registrar of Voters.

November 5, 2024 Election Day.
22 38
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Recommended Action
23 Provide direction to staff regarding exploring the feasibility of one or more potential revenue tax measures—Transaction and Use Tax, Transient Occupancy Tax, Parcel Tax, and/or Business Operations Tax—through opinion research for the November 2024 election.
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CITY OF CUPERTINO
Agenda Item
23-12766 Agenda Date: 12/5/2023
Agenda #: 1.

Subject: Certificates of appreciation to volunteers at the Silicon Valley Korean School (SVKS) Present certificates of appreciation to volunteers at the Silicon Valley Korean School (SVKS) CITY OF CUPERTINO Page 1 of 1 Printed on 11/29/2023
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VxÜà|y|vtàx Éy TÑÑÜxv|tà|ÉÇ
Presented to
TtÜt V{t
December 5, 2023
In recognition of your service to our community, especially your volunteer work at Silicon Valley Korean School where you help students achieve their academic goals. The City of Cupertino thanks you for all your hard work, dedication, and commitment. We wish you the very best of luck in all your future endeavors.
_______________________
The Honorable Hung Wei
Mayor, City of Cupertino
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VxÜà|y|vtàx Éy TÑÑÜxv|tà|ÉÇ
Presented to
TÄÄxç _xx
December 5, 2023
In recognition of your service to our community, especially your volunteer work at Silicon Valley Korean School where you help students achieve their academic goals. The City of Cupertino thanks you for all your hard work, dedication, and commitment. We wish you the very best of luck in all your future endeavors.
_______________________
The Honorable Hung Wei
Mayor, City of Cupertino
42 CC 12-05-2023
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VxÜà|y|vtàx Éy TÑÑÜxv|tà|ÉÇ
Presented to
UÜtÇwÉÇ _xx
December 5, 2023
In recognition of your service to our community, especially your volunteer work at Silicon Valley Korean School where you help students achieve their academic goals. The City of Cupertino thanks you for all your hard work, dedication, and commitment. We wish you the very best of luck in all your future endeavors.
_______________________
The Honorable Hung Wei
Mayor, City of Cupertino
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VxÜà|y|vtàx Éy TÑÑÜxv|tà|ÉÇ
Presented to
VÄt|Üx fÉÅ|Ç _xx
December 5, 2023
In recognition of your service to our community, especially your volunteer work at Silicon Valley Korean School where you help students achieve their academic goals. The City of Cupertino thanks you for all your hard work, dedication, and commitment. We wish you the very best of luck in all your future endeavors.
_______________________
The Honorable Hung Wei
Mayor, City of Cupertino
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VxÜà|y|vtàx Éy TÑÑÜxv|tà|ÉÇ
Presented to
WtÇ|xÄ ^çâÇzãÉÇ `|Ç
December 5, 2023
In recognition of your service to our community, especially your volunteer work at Silicon Valley Korean School where you help students achieve their academic goals. The City of Cupertino thanks you for all your hard work, dedication, and commitment. We wish you the very best of luck in all your future endeavors.
_______________________
The Honorable Hung Wei
Mayor, City of Cupertino
45 CC 12-05-2023
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VxÜà|y|vtàx Éy TÑÑÜxv|tà|ÉÇ
Presented to
WtÇ|xÄ ctÜ~
December 5, 2023
In recognition of your service to our community, especially your volunteer work at Silicon Valley Korean School where you help students achieve their academic goals. The City of Cupertino thanks you for all your hard work, dedication, and commitment. We wish you the very best of luck in all your future endeavors.
_______________________
The Honorable Hung Wei
Mayor, City of Cupertino
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VxÜà|y|vtàx Éy TÑÑÜxv|tà|ÉÇ
Presented to
WtÇ|xÄ lÉâv{tÇ ^|Å
December 5, 2023
In recognition of your service to our community, especially your volunteer work at Silicon Valley Korean School where you help students achieve their academic goals. The City of Cupertino thanks you for all your hard work, dedication, and commitment. We wish you the very best of luck in all your future endeavors.
_______________________
The Honorable Hung Wei
Mayor, City of Cupertino
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VxÜà|y|vtàx Éy TÑÑÜxv|tà|ÉÇ
Presented to
WtÇ|xÄ fx{çâÇ ^|Å
December 5, 2023
In recognition of your service to our community, especially your volunteer work at Silicon Valley Korean School where you help students achieve their academic goals. The City of Cupertino thanks you for all your hard work, dedication, and commitment. We wish you the very best of luck in all your future endeavors.
_______________________
The Honorable Hung Wei
Mayor, City of Cupertino
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VxÜà|y|vtàx Éy TÑÑÜxv|tà|ÉÇ
Presented to
XÄÄxÇ _xx
December 5, 2023
In recognition of your service to our community, especially your volunteer work at Silicon Valley Korean School where you help students achieve their academic goals. The City of Cupertino thanks you for all your hard work, dedication, and commitment. We wish you the very best of luck in all your future endeavors.
_______________________
The Honorable Hung Wei
Mayor, City of Cupertino
49 CC 12-05-2023
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VxÜà|y|vtàx Éy TÑÑÜxv|tà|ÉÇ
Presented to
ZÜtvx ^ãt~
December 5, 2023
In recognition of your service to our community, especially your volunteer work at Silicon Valley Korean School where you help students achieve their academic goals. The City of Cupertino thanks you for all your hard work, dedication, and commitment. We wish you the very best of luck in all your future endeavors.
_______________________
The Honorable Hung Wei
Mayor, City of Cupertino
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VxÜà|y|vtàx Éy TÑÑÜxv|tà|ÉÇ
Presented to
[tçxÉÇ ]âÇz
December 5, 2023
In recognition of your service to our community, especially your volunteer work at Silicon Valley Korean School where you help students achieve their academic goals. The City of Cupertino thanks you for all your hard work, dedication, and commitment. We wish you the very best of luck in all your future endeavors.
_______________________
The Honorable Hung Wei
Mayor, City of Cupertino
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VxÜà|y|vtàx Éy TÑÑÜxv|tà|ÉÇ
Presented to
[ãtÇ{xx V{â
December 5, 2023
In recognition of your service to our community, especially your volunteer work at Silicon Valley Korean School where you help students achieve their academic goals. The City of Cupertino thanks you for all your hard work, dedication, and commitment. We wish you the very best of luck in all your future endeavors.
_______________________
The Honorable Hung Wei
Mayor, City of Cupertino
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VxÜà|y|vtàx Éy TÑÑÜxv|tà|ÉÇ
Presented to
[çxçÉÉÇ fÉÇz
December 5, 2023
In recognition of your service to our community, especially your volunteer work at Silicon Valley Korean School where you help students achieve their academic goals. The City of Cupertino thanks you for all your hard work, dedication, and commitment. We wish you the very best of luck in all your future endeavors.
_______________________
The Honorable Hung Wei
Mayor, City of Cupertino
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VxÜà|y|vtàx Éy TÑÑÜxv|tà|ÉÇ
Presented to
[çÉÄ|Å _xx
December 5, 2023
In recognition of your service to our community, especially your volunteer work at Silicon Valley Korean School where you help students achieve their academic goals. The City of Cupertino thanks you for all your hard work, dedication, and commitment. We wish you the very best of luck in all your future endeavors.
_______________________
The Honorable Hung Wei
Mayor, City of Cupertino
54 CC 12-05-2023
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VxÜà|y|vtàx Éy TÑÑÜxv|tà|ÉÇ
Presented to
[çâÇáxÉ~ ]xÉÇz
December 5, 2023
In recognition of your service to our community, especially your volunteer work at Silicon Valley Korean School where you help students achieve their academic goals. The City of Cupertino thanks you for all your hard work, dedication, and commitment. We wish you the very best of luck in all your future endeavors.
_______________________
The Honorable Hung Wei
Mayor, City of Cupertino
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VxÜà|y|vtàx Éy TÑÑÜxv|tà|ÉÇ
Presented to
\tÇ fÉÇz
December 5, 2023
In recognition of your service to our community, especially your volunteer work at Silicon Valley Korean School where you help students achieve their academic goals. The City of Cupertino thanks you for all your hard work, dedication, and commitment. We wish you the very best of luck in all your future endeavors.
_______________________
The Honorable Hung Wei
Mayor, City of Cupertino
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VxÜà|y|vtàx Éy TÑÑÜxv|tà|ÉÇ
Presented to
\Ü|á m{tÇ
December 5, 2023
In recognition of your service to our community, especially your volunteer work at Silicon Valley Korean School where you help students achieve their academic goals. The City of Cupertino thanks you for all your hard work, dedication, and commitment. We wish you the very best of luck in all your future endeavors.
_______________________
The Honorable Hung Wei
Mayor, City of Cupertino
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VxÜà|y|vtàx Éy TÑÑÜxv|tà|ÉÇ
Presented to
]tx{â _xx
December 5, 2023
In recognition of your service to our community, especially your volunteer work at Silicon Valley Korean School where you help students achieve their academic goals. The City of Cupertino thanks you for all your hard work, dedication, and commitment. We wish you the very best of luck in all your future endeavors.
_______________________
The Honorable Hung Wei
Mayor, City of Cupertino
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VxÜà|y|vtàx Éy TÑÑÜxv|tà|ÉÇ
Presented to
]tx{çÉâÇz ctÜ~
December 5, 2023
In recognition of your service to our community, especially your volunteer work at Silicon Valley Korean School where you help students achieve their academic goals. The City of Cupertino thanks you for all your hard work, dedication, and commitment. We wish you the very best of luck in all your future endeavors.
_______________________
The Honorable Hung Wei
Mayor, City of Cupertino
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VxÜà|y|vtàx Éy TÑÑÜxv|tà|ÉÇ
Presented to
]txãÉÉ ctÜ~
December 5, 2023
In recognition of your service to our community, especially your volunteer work at Silicon Valley Korean School where you help students achieve their academic goals. The City of Cupertino thanks you for all your hard work, dedication, and commitment. We wish you the very best of luck in all your future endeavors.
_______________________
The Honorable Hung Wei
Mayor, City of Cupertino
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VxÜà|y|vtàx Éy TÑÑÜxv|tà|ÉÇ
Presented to
]|{tÇ _xx
December 5, 2023
In recognition of your service to our community, especially your volunteer work at Silicon Valley Korean School where you help students achieve their academic goals. The City of Cupertino thanks you for all your hard work, dedication, and commitment. We wish you the very best of luck in all your future endeavors.
_______________________
The Honorable Hung Wei
Mayor, City of Cupertino
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VxÜà|y|vtàx Éy TÑÑÜxv|tà|ÉÇ
Presented to
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December 5, 2023
In recognition of your service to our community, especially your volunteer work at Silicon Valley Korean School where you help students achieve their academic goals. The City of Cupertino thanks you for all your hard work, dedication, and commitment. We wish you the very best of luck in all your future endeavors.
_______________________
The Honorable Hung Wei
Mayor, City of Cupertino
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December 5, 2023
In recognition of your service to our community, especially your volunteer work at Silicon Valley Korean School where you help students achieve their academic goals. The City of Cupertino thanks you for all your hard work, dedication, and commitment. We wish you the very best of luck in all your future endeavors.
_______________________
The Honorable Hung Wei
Mayor, City of Cupertino
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December 5, 2023
In recognition of your service to our community, especially your volunteer work at Silicon Valley Korean School where you help students achieve their academic goals. The City of Cupertino thanks you for all your hard work, dedication, and commitment. We wish you the very best of luck in all your future endeavors.
_______________________
The Honorable Hung Wei
Mayor, City of Cupertino
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December 5, 2023
In recognition of your service to our community, especially your volunteer work at Silicon Valley Korean School where you help students achieve their academic goals. The City of Cupertino thanks you for all your hard work, dedication, and commitment. We wish you the very best of luck in all your future endeavors.
_______________________
The Honorable Hung Wei
Mayor, City of Cupertino
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December 5, 2023
In recognition of your service to our community, especially your volunteer work at Silicon Valley Korean School where you help students achieve their academic goals. The City of Cupertino thanks you for all your hard work, dedication, and commitment. We wish you the very best of luck in all your future endeavors.
_______________________
The Honorable Hung Wei
Mayor, City of Cupertino
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December 5, 2023
In recognition of your service to our community, especially your volunteer work at Silicon Valley Korean School where you help students achieve their academic goals. The City of Cupertino thanks you for all your hard work, dedication, and commitment. We wish you the very best of luck in all your future endeavors.
_______________________
The Honorable Hung Wei
Mayor, City of Cupertino
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December 5, 2023
In recognition of your service to our community, especially your volunteer work at Silicon Valley Korean School where you help students achieve their academic goals. The City of Cupertino thanks you for all your hard work, dedication, and commitment. We wish you the very best of luck in all your future endeavors.
_______________________
The Honorable Hung Wei
Mayor, City of Cupertino
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December 5, 2023
In recognition of your service to our community, especially your volunteer work at Silicon Valley Korean School where you help students achieve their academic goals. The City of Cupertino thanks you for all your hard work, dedication, and commitment. We wish you the very best of luck in all your future endeavors.
_______________________
The Honorable Hung Wei
Mayor, City of Cupertino
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December 5, 2023
In recognition of your service to our community, especially your volunteer work at Silicon Valley Korean School where you help students achieve their academic goals. The City of Cupertino thanks you for all your hard work, dedication, and commitment. We wish you the very best of luck in all your future endeavors.
_______________________
The Honorable Hung Wei
Mayor, City of Cupertino
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December 5, 2023
In recognition of your service to our community, especially your volunteer work at Silicon Valley Korean School where you help students achieve their academic goals. The City of Cupertino thanks you for all your hard work, dedication, and commitment. We wish you the very best of luck in all your future endeavors.
_______________________
The Honorable Hung Wei
Mayor, City of Cupertino
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December 5, 2023
In recognition of your service to our community, especially your volunteer work at Silicon Valley Korean School where you help students achieve their academic goals. The City of Cupertino thanks you for all your hard work, dedication, and commitment. We wish you the very best of luck in all your future endeavors.
_______________________
The Honorable Hung Wei
Mayor, City of Cupertino
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December 5, 2023
In recognition of your service to our community, especially your volunteer work at Silicon Valley Korean School where you help students achieve their academic goals. The City of Cupertino thanks you for all your hard work, dedication, and commitment. We wish you the very best of luck in all your future endeavors.
_______________________
The Honorable Hung Wei
Mayor, City of Cupertino
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December 5, 2023
In recognition of your service to our community, especially your volunteer work at Silicon Valley Korean School where you help students achieve their academic goals. The City of Cupertino thanks you for all your hard work, dedication, and commitment. We wish you the very best of luck in all your future endeavors.
_______________________
The Honorable Hung Wei
Mayor, City of Cupertino
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Presented to
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December 5, 2023
In recognition of your service to our community, especially your volunteer work at Silicon Valley Korean School where you help students achieve their academic goals. The City of Cupertino thanks you for all your hard work, dedication, and commitment. We wish you the very best of luck in all your future endeavors.
_______________________
The Honorable Hung Wei
Mayor, City of Cupertino
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Presented to
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December 5, 2023
In recognition of your service to our community, especially your volunteer work at Silicon Valley Korean School where you help students achieve their academic goals. The City of Cupertino thanks you for all your hard work, dedication, and commitment. We wish you the very best of luck in all your future endeavors.
_______________________
The Honorable Hung Wei
Mayor, City of Cupertino
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Presented to
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December 5, 2023
In recognition of your service to our community, especially your volunteer work at Silicon Valley Korean School where you help students achieve their academic goals. The City of Cupertino thanks you for all your hard work, dedication, and commitment. We wish you the very best of luck in all your future endeavors.
_______________________
The Honorable Hung Wei
Mayor, City of Cupertino
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Presented to
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December 5, 2023
In recognition of your service to our community, especially your volunteer work at Silicon Valley Korean School where you help students achieve their academic goals. The City of Cupertino thanks you for all your hard work, dedication, and commitment. We wish you the very best of luck in all your future endeavors.
_______________________
The Honorable Hung Wei
Mayor, City of Cupertino
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Presented to
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December 5, 2023
In recognition of your service to our community, especially your volunteer work at Silicon Valley Korean School where you help students achieve their academic goals. The City of Cupertino thanks you for all your hard work, dedication, and commitment. We wish you the very best of luck in all your future endeavors.
_______________________
The Honorable Hung Wei
Mayor, City of Cupertino
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Presented to
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December 5, 2023
In recognition of your service to our community, especially your volunteer work at Silicon Valley Korean School where you help students achieve their academic goals. The City of Cupertino thanks you for all your hard work, dedication, and commitment. We wish you the very best of luck in all your future endeavors.
_______________________
The Honorable Hung Wei
Mayor, City of Cupertino
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Presented to
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December 5, 2023
In recognition of your service to our community, especially your volunteer work at Silicon Valley Korean School where you help students achieve their academic goals. The City of Cupertino thanks you for all your hard work, dedication, and commitment. We wish you the very best of luck in all your future endeavors.
_______________________
The Honorable Hung Wei
Mayor, City of Cupertino
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Presented to
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December 5, 2023
In recognition of your service to our community, especially your volunteer work at Silicon Valley Korean School where you help students achieve their academic goals. The City of Cupertino thanks you for all your hard work, dedication, and commitment. We wish you the very best of luck in all your future endeavors.
_______________________
The Honorable Hung Wei
Mayor, City of Cupertino
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Presented to
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December 5, 2023
In recognition of your service to our community, especially your volunteer work at Silicon Valley Korean School where you help students achieve their academic goals. The City of Cupertino thanks you for all your hard work, dedication, and commitment. We wish you the very best of luck in all your future endeavors.
_______________________
The Honorable Hung Wei
Mayor, City of Cupertino
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Presented to
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December 5, 2023
In recognition of your service to our community, especially your volunteer work at Silicon Valley Korean School where you help students achieve their academic goals. The City of Cupertino thanks you for all your hard work, dedication, and commitment. We wish you the very best of luck in all your future endeavors.
_______________________
The Honorable Hung Wei
Mayor, City of Cupertino
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CITY OF CUPERTINO
Agenda Item
23-12824 Agenda Date: 12/5/2023
Agenda #: 2.

Subject: Recognition of Manny Barragan as the City of Cupertino's longest serving employee Present certificate of recognition recognizing Manny Barragan as the City of Cupertino's longest serving employee
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CITY OF CUPERTINO
Agenda Item
23-12826 Agenda Date: 12/5/2023
Agenda #: 3.

Subject: Recognition of Cupertino Sister City relationships Present certificates of recognition to Cupertino Sister Cities representing Copertino, Italy; Toyokawa, Japan; Hsinchu, Taiwan; and Bhubaneswar, India
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CITY OF

CUPERTINO
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Presented to
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December 5,
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2023
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To proclaim our support for the enduring friendship between the City of Cupertino and the Cupertino - Bhubaneswar Sister City Committee for their invaluable efforts in fostering international understanding, cultural exchange, and friendship between our sister cities and playing an instrumental role in strengthening the bonds that unite our communities. 4 U·
The Honorable Hung Wei / Mayor, City of Cupertino
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CITY OF

CUPERTINO
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Presented to
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December 5, 2023
To proclaim our support for the enduring friendship between the City of Cupertino and the Cupertino - Copertino Sister City Committee for their invaluable efforts in fostering international understanding, cultural exchange, and friendship between our sister cities and playing an instrumental role in strengthening the bonds that unite our communities.

Th:ZZ~ei
Mayor, City of Cupertino
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CITY OF

CUPERTINO
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Presented to
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December
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5, 2023
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To proclaim our support for the enduring friendship between the City of Cupertino and the Cupertino - Hsinchu Sister City Committee for their invaluable efforts in fostering international understanding, cultural exchange, and friendship between our sister cities and playing an instrumental role in strengthening the bonds that unite our communities. 4 U
The Honorable Hung Wei
Mayor, City of Cupertino
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CITY OF

CUPERTINO
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Presented to
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To proclaim our support for the enduring friendship between the City of Cupertino and the Cupertino - Toyokawa Sister City Committee for their invaluable efforts in fostering international understanding, cultural exchange, and friendship between our sister cities and playing an instrumental role in strengthening the bonds that unite our communities. 4-7~
The ttonorable Hung Wei
Mayor, City of Cupertino
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CITY OF CUPERTINO
Agenda Item
23-12812 Agenda Date: 12/5/2023
Agenda #: 4.

Subject: Approval of the November 14 City Council minutes Approve the November 14 City Council minutes
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DRAFT MINUTES

CUPERTINO CITY COUNCIL
Tuesday, November 14, 2023

SPECIAL MEETING
At 6:00 p.m., Mayor Wei called the Special City Council Meeting to order in the Cupertino Library Room 101, 10800 Torre Avenue, Cupertino, CA 95014.

ROLL CALL

Present: Mayor Hung Wei, Vice Mayor Sheila Mohan, and Councilmembers Liang Chao, J.R.

Fruen, and Kitty Moore. Absent: none.

COUNCIL WORKSHOP

1. Subject: City Council Governance Workshop
Recommended Action: Receive and discuss presentation regarding City Council governance
Written communications for this item included a consultant presentation, consultant workshop summary with an attachment on mutual expectations, and an article, “A Key Ingredient for Success: An Effective City Council/City Manager Relationship.” Mayor Wei opened the public comment period and the following people spoke.

Lisa Warren supported a beneficial workshop and was concerned about Kevin Duggan facilitating the workshop instead of David Sykes and about the meeting not being recorded.

Peggy Griffin supported the workshop, greater progress, and providing usable tools for Council; and was concerned that there were too many slides and not enough action taken at the last workshop.

Jean Bedord commented that the Grand Jury Report and the fact finding investigation addressed items that she felt needed to be done by Council and supported Council working together with the public.
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Santosh Rao supported Council viewing each other with different perspectives, approaching the workshop with sincerity, and collaboration by all parties including staff; and opposed avoiding responsibilities and priorities.

Mayor Wei closed the public comment period.

Facilitator Kevin Duggan provided the purpose of the workshop, which was to review best practices of governance and to develop mutual expectations to help guide productive and effective working relationships, and then gave a presentation.

The Council discussed the following workshop goals:
 reviewing effective meeting facilitation
 confirming and re-committing to governance norms
 enhancing the working relationships between Councilmembers and with the City Manager and City staff
 reviewing the governance role of a city council and helping the City Council to improve their effectiveness as a governance team
 developing and documenting mutual expectations to help guide productive and effective working relationships
The facilitator prepared a workshop report summarizing the agreed upon norms and expectations which is available with the written communications for the meeting.

ADJOURNMENT
At 8:08 p.m., Mayor Wei adjourned the Special City Council Meeting.

Minutes prepared by:
_________________________
Kirsten Squarcia, City Clerk
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CITY OF CUPERTINO
Agenda Item
23-12059 Agenda Date: 12/5/2023
Agenda #: 5.

Subject: Approval of the November 21 City Council minutes Approve the November 21 City Council minutes
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DRAFT MINUTES

CUPERTINO CITY COUNCIL
Tuesday, November 21, 2023
At 6:45 p.m., Mayor Wei called the Regular City Council Meeting to order and led the Pledge of Allegiance in the Cupertino Community Hall Council Chamber, 10350 Torre Avenue and via teleconference.

ROLL CALL

Present: Mayor Hung Wei, Vice Mayor Sheila Mohan, and Councilmembers Liang Chao, J.R.

Fruen and Kitty Moore. Absent: none.

CLOSED SESSION REPORT
City Attorney Chris Jensen reported out on the November 20, 2023 closed session regarding one item:

Subject: Conference with legal counsel - existing litigation pursuant to Government Code § 54956.9 (City of Cupertino v. California Department of Tax & Fee Administration) City Attorney Jensen reported that there was no reportable action.

CEREMONIAL ITEMS

1. Subject: Recognition of November 25, 2023 as Small Business Saturday Recommended Action: Recognize November 25, 2023 as Small Business Saturday Mayor Wei recognized November 25, 2023 as Small Business Saturday.

POSTPONEMENTS AND ORDERS OF THE DAY - None

ORAL COMMUNICATIONS
Written communications for this item included emails to Council.

Rhoda Fry discussed City finances, the Cupertino Public Facilities Corporation, and the Annual 96 CC 12-05-2023
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Comprehensive Financial Report (submitted written comments).

Lisa Warren discussed the recent Council Governance Workshop, Council committee assignments, and the public comment process.

Jane Huang discussed a Code Enforcement matter.

CONSENT CALENDAR (Items 2-10)
Mayor Wei opened the public comment period and, seeing no one, closed the public comment period.

MOTION: Fruen moved and Mohan seconded to approve the items on the Consent Calendar except for Item 2 which was pulled for discussion. The motion carried with the following vote:

Ayes: Wei, Mohan, Chao, Fruen, and Moore. Noes: None. Abstain: None. Absent: None.

MOTION: Wei moved and Fruen seconded to reorder the agenda to hear Item 2 Mitigation Fee Act before the Action Calendar. The motion carried with the following vote: Ayes: Wei, Mohan, Chao, and Fruen. Noes: Moore. Abstain: None. Absent: None.

3. Subject: First Amendment to Employment Agreement for the City Manager Recommended Action: Adopt Resolution No. 23-120 approving the First Amendment to Employment Agreement with the City Manager for the City of Cupertino and authorize the Mayor to execute the Agreement.

4. Subject: Approval of the November 7 City Council minutes Recommended Action: Approve the November 7 City Council minutes

5. Subject: Second reading of an ordinance to make minor amendments to Cupertino Municipal Code Chapter 1.18 (Claims Against the City), Chapter 9.15 (Prohibition of Expanded Polystyrene (EPS) Foam Food Service Ware), 9.18 (Stormwater Pollution Prevention and Watershed Protection), Chapter 15.04 (Waterworks System-Rates and Charges), and Chapter 16.72 (Recycling and Diversion of Construction and Demolition Waste)
Recommended Action: Conduct the second reading and enact Ordinance No. 23-2252 “AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AMENDING CITY CODE CHAPTERS 1.18, 9.15, 9.18, 15.04, AND 16.72”.

6. Subject: Adopt a resolution increasing the employer's contribution for medical and hospitalization insurance consistent with the Public Employees’ Medical and Hospital Care Act (“PEMHCA” or the “Act”) for retired annuitants hired with the City of Cupertino prior to August 2004.
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Recommended Action: Adopt Resolution No. 23-123 increasing the employer's contribution for medical and hospitalization insurance for retired annuitants hired with the City of Cupertino prior to August 2004.

7. Subject: Ratifying Accounts Payable for the periods ending October 6, 2023; October 13, 2023; October 20, 2023; and October 27, 2023
Recommended Action: A. Adopt Resolution No. 23-124 ratifying Accounts Payable for the Period ending October 6, 2023;
B. Adopt Resolution No. 23-125 ratifying Accounts Payable for the Period ending October 13, 2023;
C. Adopt Resolution No. 23-126 ratifying Accounts Payable for the Period ending October 20, 2023; and
D. Adopt Resolution No. 23-127 ratifying Accounts Payable for the Period ending October 27, 2023

8. Subject: Approve a Second Amendment with Acuity Brands, LLC, for continued use of the BuildingOS Energy Management Platform.

Recommended Action: Authorize the City Manager to execute a Second Amendment with Acuity Brands, LLC, for continued use of the BuildingOS Energy Management Platform, increasing the contract amount by $45,500 for a new total not-to-exceed contract amount of $227,500 and extending the term of the agreement to December 9, 2024.

9. Subject: Microsoft Enterprise Software Licensing Agreement with SoftwareONE, Inc., for licensing of Microsoft programs, systems, and databases.

Recommended Action: 1. Authorize the City Manager to execute a Microsoft Enterprise Software Licensing Agreement with SoftwareONE, Inc., utilizing Riverside County’s statewide competitively awarded Microsoft Enterprise Agreement for licensing of Microsoft programs, systems, and databases for a total amount not to exceed $342,729.23, including a 10% contingency in the amount $31,157.20.

2. Find under Municipal Code section 3.22.070(C) that this procurement from Riverside County is exempt from formal competitive bidding procedures.

10. Subject: Approve master agreements with CSG Consultants, Inc. and 4Leaf, Inc., to provide construction management services on various Capital Improvement Program (CIP) projects.

Recommended Action: 1. Authorize the City Manager to execute a master agreement with CSG Consultants, Inc. (CSG) in the amount not to exceed $500,000 for contract period of two years.

2. Authorize the City Manager to execute a master agreement with 4Leaf, Inc. (4Leaf) in the amount not to exceed $500,000 for a contract period of two years. 98 CC 12-05-2023
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Written communications for this item included a supplemental report with corrected staff report and staff responses to councilmember questions, New Attachment C - Service Order Example, and a councilmember email.

PUBLIC HEARINGS – None

ITEMS REMOVED FROM THE CONSENT CALENDAR

2. Subject: Mitigation Fee Act - the Annual & Five-Year Report for Fiscal Year (FY) 2022-2023. (Continued from November 7, 2023)
Recommended Action: Adopt Resolution No. 23-121 entitled "A Resolution of the City of Cupertino City Council approving the Annual & Five -Year Mitigation Fee Report for Fiscal Year ending June 30, 2023, and making required findings" to:

1. Make the required findings; and

2. Approve the Annual & Five-Year Mitigation Fee Report for the Fiscal Year ending June 30, 2023, as required by Government Code Section 66000 et seq.

Written communications for this item included a supplemental report with staff responses to councilmember questions and a councilmember email.

This item was pulled from the Consent Calendar for discussion.

Director or Public Works Chad Mosley reviewed the item.

Councilmembers made comments and asked questions.

Mayor Wei opened the public comment period and the following people spoke.

Rhoda Fry
Lisa Warren
Mayor Wei closed the public comment period.

SUBSTITUTE MOTION: Moore moved and Chao seconded a substitute motion to approve the Recommended Action with the addition that the Parkland 14.05 funds are broken out from the 13.08 funds into a separate reporting item in the AB 1600 report. The substitute motion failed with the following vote: Ayes: Chao and Moore. Noes: Wei, Mohan, and Fruen. Abstain: None. Absent: None.

MOTION: Fruen moved and Mohan seconded to adopt Resolution No. 23-121 entitled "A Resolution of the City of Cupertino City Council approving the Annual & Five -Year Mitigation Fee Report for Fiscal Year ending June 30, 2023, and making required 99 CC 12-05-2023
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findings" to:

1. Make the required findings; and

2. Approve the Annual & Five-Year Mitigation Fee Report for the Fiscal Year ending June 30, 2023, as required by Government Code Section 66000 et seq.

3. Modify the report to further breakdown the funding and expenditures for Lawrence-Mitty Park within the Park Dedication In-Lieu Fee reporting section.

The motion carried with the following vote: Ayes: Wei, Mohan, Chao, and Fruen. Noes:

Moore. Abstain: None. Absent: None.

At 7:50 p.m., Mayor Wei recessed the meeting. The meeting reconvened at 7:55 p.m. with all Councilmembers present.

ACTION CALENDAR

11. Subject: Accept the City Manager’s First Quarter Financial Report for Fiscal Year 2023-24
Recommended Action: 1. Accept the City Manager’s First Quarter Financial Report for Fiscal Year 2023-24

2. Adopt Resolution No. 23-128 approving Budget Modification No. 2324-314, increasing appropriations by $464,384 and revenues by $540,141

3. Adopt Resolution No. 23-129 amending Cupertino City Employees’ Association /IFPTE Local 21 Classification Plan and Salary Schedule

4. Adopt Resolution No. 23-130 amending the Unrepresented Employees’ Compensation Program

5. Approve new Senior Housing Coordinator and Communications and Marketing Coordinator classifications

6. Receive FY 2023-24 First Quarter City Work Program Dashboard Update

7. Provide direction on potential service level reductions for FY 2024-25 a. Defunding the 4th of July Event in FY 2024-25
b. Defunding Community Grant Funding Program in FY 2024-25 c. Defunding Weed Abatement subsidy of $8,600 annually.

Presenters: Kristina Alfaro, Director of Administrative Services and Thomas Leung, Budget Manager
Written communications for this item included a staff presentation, a supplemental report with staff responses to councilmember questions, and a councilmember email.

Director of Administrative Services Kristina Alfaro and Budget Manager Thomas Leung gave a presentation.

Councilmembers made comments and asked questions.
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Mayor Wei opened the public comment period and the following people spoke.

Rhoda Fry (submitted written comments)
Jane Huang
Lisa Warren
Mayor Wei closed the public comment period.

MOTION: Moore moved and Fruen seconded as amended to:

1. Accept the City Manager’s First Quarter Financial Report for Fiscal Year 2023-24

2. Adopt Resolution No. 23-128 approving Budget Modification No. 2324-314, increasing appropriations by $464,384 and revenues by $540,141

3. Adopt Resolution No. 23-129 amending Cupertino City Employees’ Association/IFPTE Local 21 Classification Plan and Salary Schedule

4. Adopt Resolution No. 23-130 amending the Unrepresented Employees’ Compensation Program

5. Approve new Senior Housing Coordinator and Communications and Marketing Coordinator classifications

6. Receive FY 2023-24 First Quarter City Work Program Dashboard Update

7. Approve potential service level reductions for FY 2024-25 as amended:
a. Defunding the 4th of July Event in FY 2024-25 with an amendment to direct staff to explore options on what could continue to be funded and return to Council with funding suggestions;
b. Defunding Community Grant Funding Program in FY 2024-25; and c. Defunding Weed Abatement subsidy of $8,600 annually.

FRIENDLY AMENDMENT: Fruen made a friendly amendment to cap the amount for 7b at $32,500. (Moore accepted the friendly amendment).

Council did not vote on this motion.

SUBSTITUTE MOTION: Wei moved and Chao seconded a substitute motion as amended to:

1. Accept the City Manager’s First Quarter Financial Report for Fiscal Year 2023-24

2. Adopt Resolution No. 23-128 approving Budget Modification No. 2324-314, increasing appropriations by $464,384 and revenues by $540,141

3. Adopt Resolution No. 23-129 amending Cupertino City Employees’ Association/IFPTE Local 21 Classification Plan and Salary Schedule

4. Adopt Resolution No. 23-130 amending the Unrepresented Employees’ Compensation Program

5. Approve new Senior Housing Coordinator and Communications and Marketing Coordinator classifications

6. Receive FY 2023-24 First Quarter City Work Program Dashboard Update 101
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City Council Minutes November 21, 2023

7. Approve potential service level reductions for FY 2024-25 as amended:
a. Defunding the 4th of July Event in FY 2024-25 with amendments to direct staff to explore options on what could continue to be funded and return to Council with funding suggestions; and retain funding of $7,000 to continue morning events; b. Defunding Community Grant Funding Program in FY 2024-25 with an amendment to cap the amount at $32,500; and
c. Defunding Weed Abatement subsidy of $8,600 annually.

FRIENDLY AMENDMENT: Chao made a friendly amendment to refer 7a to the Parks and Recreation Department to explore creative solutions on whether to continue to defund for the following year. (Wei accepted the friendly amendment).

The amended substitute motion carried with the following vote: Ayes: Wei, Mohan, Chao, and Fruen. Noes: Moore. Abstain: None. Absent: None.

COUNCIL REPORTS AND COMMENTS

12. Subject: Councilmember Reports
Councilmembers reported on their various committees and activities as provided in the published agenda and written communications.

CITY MANAGER REPORT
City Manager Wu shared a video commemorating the Cupertino-Toyokawa Sister Cities Association 45th anniversary of the Sister Cities relationship.

ORAL COMMUNICATIONS – CONTINUED - None

INFORMATIONAL ITEMS

13. Subject: Receive the Treasurer's Investment Report for the Quarter Ending September 30, 2023
Recommended Action: Receive the Treasurer's Investment Report for the Quarter Ending September 30, 2023
The information regarding the Treasurer's Investment Report for the Quarter Ending September 30, 2023 was provided as part of the published agenda.

14. Subject: Receive the Monthly Treasurer's Investment Report for October 2023 Recommended Action: Receive the Monthly Treasurer's Investment Report for October 2023
The information regarding the Monthly Treasurer's Investment Report for October 102
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City Council Minutes November 21, 2023

2023 was provided as part of the published agenda.

15. Subject: Receive the Monthly Treasurer's Report for October 2023 Recommended Action: Receive the Monthly Treasurer's Report for October 2023 The information regarding the Monthly Treasurer's Report for October 2023 was provided as part of the published agenda.

COUNCIL AND STAFF COMMENTS AND FUTURE AGENDA ITEMS
Councilmembers made comments and discussed requests for future agenda items.

ADJOURNMENT
At 8:57 p.m., Mayor Wei adjourned the Regular City Council Meeting.

Minutes prepared by:
_________________________
Kirsten Squarcia, City Clerk
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CITY OF CUPERTINO
Agenda Item
23-12549 Agenda Date: 12/5/2023
Agenda #: 6.

Subject: Adopt a maximum rate schedule for Rate Period Four for Recology to provide recycling, organics, and solid waste collection, recycling and organics processing services, and transport for disposal as calculated using the allowed and approved methodology in the Franchise Agreement Adopt Resolution No. 23-131 (Attachment A) to:

1. Adopt a maximum rate schedule for Rate Period Four for Recology to provide recycling, organics, and solid waste collection, recycling and organics processing services, and transport for disposal pursuant to the franchise agreement (Attachment B; (FA Exhibit E2)); and

2. Authorize the use of $547,800 of restricted-use enterprise funds to smooth and mitigate the Rate Period Four adjustment
CITY OF CUPERTINO Page 1 of 1 Printed on 11/29/2023
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CITY COUNCIL STAFF REPORT
Meeting: December 5, 2023
Subject
Adopt a maximum rate schedule for Rate Period Four for Recology to provide recycling, organics, and solid waste collection, recycling and organics processing services, and transport for disposal as calculated using the allowed and approved methodology in the Franchise Agreement.

Recommended Action
Adopt Resolution No. 23-XXX (Attachment A) to:
1) Adopt a maximum rate schedule for Rate Period Four for Recology to provide recycling, organics, and solid waste collection, recycling and organics processing services, and transport for disposal pursuant to the franchise agreement (Attachment B; (FA Exhibit E2)), and
2) Authorize the use of $547,800 of restricted-use enterprise funds to smooth and mitigate the Rate Period Four adjustment.

Reasons for Recommendation
On December 15, 2020, the City of Cupertino Council approved a new 10-year Franchise Agreement (Attachment B)
1 with Recology South Bay d/b/a Recology Cupertino
(“Recology”) to provide recycling, organics, and solid waste collection, recycling and organics processing services, and transport for disposal. The Franchise Agreement as adopted included rates for the first three years along with detailed methodologies to calculate rates for each year through the remainder of the agreement term.

The methodology to determine the maximum rates for the upcoming Rate Period Four (RP 4), which begins February 1, 2024, is a cost-based adjustment detailed in Exhibit E.2 to the Franchise Agreement. City and Recology staff calculated the cost-based adjustment as specified, and the resulting rates are hereby presented for approval by the City Council (Exhibit A to the Resolution). Under Exhibit E to the Franchise Agreement,

1 For ease of use and reduced file size, the attached copy of the franchise agreement has section bookmarks and Recology’s original pre-negotiation proposal is not included. The full executed version can be accessed via Cupertino.org/records and a search for agreement 21-232 or via this link.
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“[t]he City Council shall make a good faith effort to approve Rates by January 1 of each year, and such Rates shall be effective on each subsequent February 1.” The RP 4 adjustment does not include changes to how materials are handled after collection. However, Staff is currently working on an RFP to solicit new options for disposal of garbage, and on May 2, 2023, Council approved incorporating options to process garbage into that RFP. Currently, materials placed in the gray bins and carts (garbage) go directly to landfill. Processing the garbage would recover organic and other recyclable materials that are put into the garbage instead of being sorted properly, reducing the tons sent to landfill by a third or even a half. Processing garbage is more expensive than disposing it directly to landfill, but routing garbage for processing is a recommended action in the City’s Climate Action Plan 2.0 under item W1.2. Any changes in rates that would result from sending garbage to be processed would be addressed during a future rate period adjustment.

Regulation of Maximum Rates
The City does not set the rates for Recology’s provision of solid waste services, but rather approves the maximum rates Recology may charge its customers.

Review of the Rate Period Four Application
On August 1, in accordance with Section 8.2.C of the Franchise Agreement, Recology submitted its RP 4 application. To assess the appropriateness of Recology’s proposed rates, the City engaged a consultant, HF&H, to perform a detailed review of the Recology application, including data about Recology’s costs to provide the proposed services as well as their revenue requirements to cover costs and maintain profitability.

The review conducted by HF&H included determining completeness, compliance with the adjustment methodology, mathematical accuracy, reasonableness, and logical consistency of the assumptions supporting the projected revenues and expenses. Details of the analysis are included in HF&H’s report (Attachment C).

Rate Adjustment and Rate Smoothing
Per Recology’s RP 4 application and subsequent review, the overall increase in revenue needed by Recology in the upcoming Rate Period is 5.02%. Based on the cost to provide services, the single-family home residential rates would increase by 12.16% while commercial, multi-family, and roll-off box rates remain unchanged because projected revenues from those sectors are currently adequate to cover the costs to provide service.

The increase for single-family home residential rates can be smoothed downward to 5% by using $547,800 from the Resource Recovery Enterprise Fund. This reserve fund is earmarked for uses that benefit solid waste ratepayers, including smoothing of rate impacts. The City intends to use these funds through the remainder of the 10-year agreement to smooth rates for customers and avoid significant rate jumps in any one year. The recommended rate adjustment for each category of customer after using the Resource Recovery Enterprise Fund is shown in Table 1 below. 106
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Table 1: Application of Rate Adjustments
Monthly Rate
Service Type Current Rate Period Four
(eff. 2/1/2024) % change $ per month change
Residential:
32-gallon garbage cart
(bundled with recycling and
organics carts)
$40.18 $42.19 5% $2.01
Commercial/MFD:
1-3yd/1x/week, MSW $317.04 $317.04 0% $0

1.5yd/1x/week, Recycling $95.12 $95.12 0% $0

1.5yd/1x/week, Organics $198.14 $198.14 0% $0
Rate Comparisons with Neighboring Cities
Even with the proposed rate increases, Cupertino rates will be low in comparison with those of neighboring cities. The following tables 2 and 3 show Cupertino’s rates in comparison to nearby cities, both currently and with the proposed maximum rate for Rate Period Four.

Table 2: Residential Monthly Rate Comparisons
2023 single-family residential garbage rates per month sorted by 32 gallon cart City
20 or 24 gallon
cart
32 or 35 gallon
cart
Extra per
month
Milpitas $36.46 $39.63
Cupertino $37.78 $40.18 Current
Mountain View $28.90 $42.10
Cupertino $39.67 $42.19 5% increase $2.01
Campbell $34.51 $42.74
Sunnyvale $38.46 $44.64
Los Gatos $36.73 $45.74
Saratoga $37.38 $46.40
Los Altos $44.98 $48.45
Santa Clara $41.41 $49.12
Palo Alto $27.81 $50.07
San Jose n/a $51.40
Note: Rates shown are for July 1, 2023. The rates do not reflect subsequent adjustments including any adjustments for January 1, 2024.
//
//
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Table 3: Commercial Rate Comparisons
City 3 CY bin 1x/week
San Jose $266.53
Milpitas $298.68
Cupertino $317.04
Mountain View $385.45
Campbell $395.23
Santa Clara $431.81
Los Gatos $488.91
Sunnyvale $498.51
Palo Alto $504.40
Saratoga $566.53
Los Altos $570.21
Note: Rates shown are for July 1, 2023. The rates do not reflect subsequent adjustments including any adjustments for January 1, 2024.

Sustainability Impact
Effective waste disposal programs that are convenient, well utilized and properly funded are essential to diverting recyclable and compostable materials from the landfill in accordance with AB939, the California Integrated Waste Management Act that requires at least 50% diversion from landfill after 1/1/2020, the City of Cupertino’s Zero Waste Policy adopted December 19, 2017, and compliance with SB 1383 Short-Lived Climate Pollutants (SLCP): Organic Waste Methane Emissions Reductions. The City and Recology partner on many of the diversion and waste reduction activities described in the community solid waste measures W-1, W-2, and W-3 in Cupertino’s Climate Action Plan 2.0 section “Getting to Zero Waste.”
Fiscal Impact
The City expects to receive about $3.7 million in RP 4 from Recology. These funds are received in the form of Franchise Fees and Solid Waste Fund Operations Fees. As noted earlier, staff recommends using $547,800 from the Resource Recovery Fund to offset part of the calculated rate increase in Rate Period 4 for the benefit of ratepayers. These costs are already included in the FY2023-24 Final Budget for fund 520, no budget adjustment is necessary. The amount of revenue raised by the fees, and their uses, have been independently evaluated by HF&H.

On December 15, 2020, Council established a minimum reserve in Fund 520-330 of $500,000 to ensure that drawdown of this fund does not exceed a prudent reserve of 2% of the City’s solid waste program operating costs.

Table 4 shows the fiscal impact to the City since the agreement began. Because the current Rate Period (RP 3) is not yet complete and RP 4 is projected, some numbers are not known yet and are shown in italics.
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Table 4
Fiscal Summary
Feb 2021 –
Jan 2022
(RP 1)
Feb 2022 –
Jan 2023
(RP 2)
Feb 2023 –
Jan 2024
(RP 3)
Feb 2024 –
Jan 2025
(RP 4)
Franchise Fees
(for use by Gen. Fund) $1,513,007 $1,771,937 $2,047,763(projected) $2,140,000
(projected)
Solid Waste Fund
Operations Fees
(Fund 520 – restricted use)
$1,396,128 $1,438,008 $1,481,148 $1,635,967
Total Received $2,909,135 $3,209,945 $3,528,911 $3,775,967 Use of Fund 520 for rate
smoothing ($ 686,072) ($ 957,082) ($ 840,405) ($547,800) Net to City $2,223,063 $2,252,863 $2,688,506 $3,228,167 California Environmental Quality Act
Not applicable.
_____________________________________
Prepared by: Ursula Syrova, Environmental Programs and Sustainability Manager Reviewed by: Chad Mosley, Director of Public Works
Reviewed by: Matt Morley, Assistant City Manager
Approved for Submission by: Pamela Wu, City Manager
Attachments:

A – Draft Resolution
B – Recology Franchise Agreement
C – HF&H Report – Review of Recology RP 4 Application
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Attachment A
RESOLUTION NO. ________

A RESOLUTION OF THE CUPERTINO CITY COUNCIL

ADOPTING A MAXIMUM RATE SCHEDULE FOR RATE PERIOD FOUR PER THE

FRANCHISE AGREEMENT WITH RECOLOGY CUPERTINO RELATED TO RECYCLING, ORGANICS, AND SOLID WASTE COLLECTION, PROCESSING, AND DISPOSAL; AND AUTHORIZING THE USE OF $547,800 OF RESTRICTED-USE ENTERPRISE FUNDS TO SMOOTH AND MITIGATE THE RATE PERIOD FOUR ADJUSMENT.

WHEREAS, pursuant to state constitutional and statutory authority, the City of Cupertino has the authority to regulate the handling of solid waste within its jurisdiction; and WHEREAS, the City enacted and maintains Municipal Code Chapters 6.24 and 9.16, in part, to satisfy solid waste collection and diversion obligations, and other requirements of the California Integrated Waste Management Act AB 939, Assembly Bill 1826, the Short-Lived Climate Pollutants Bill of 2016 SB 1383, and related laws and regulations; and WHEREAS, pursuant to Municipal Code Section 6.24.120 and applicable statutory authority, where the public health, safety, and well-being require it, the City may award an exclusive franchise to any person or entity the City Council believes is qualified to perform solid waste collection service; and
WHEREAS, the City has determined that collection of solid waste, which includes garbage, recyclables, and organic waste, is a health, sanitary, and safety measure necessary for the promotion, protection, and preservation of the health, safety, and general welfare of the people of the City, and the City and its residents benefit from granting an exclusive franchise for same; and
WHEREAS, in 2020 the City entered an exclusive franchise agreement with Recology South Bay d/b/a Recology Cupertino (“Recology”) for collection and processing or recyclable and compostable materials, and the collection of disposal of garbage (the “Existing Franchise Agreement”), the base term of which is scheduled to expire on January 31, 2031; and WHEREAS, the City does not provide solid waste collection services; rather, it regulates the private solid waste collection industry to protect public health, safety and welfare and ensure compliance with applicable laws; and
WHEREAS, as part of its regulatory role, pursuant to Municipal Code Section 6.24.150, the City reserves the right to establish a maximum schedule of rates and charges for all levels of solid waste collection services to be rendered by the solid waste collector in order to avoid an abuse of the franchise rights granted; and
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Attachment A
WHEREAS, the Existing Franchise Agreement with Recology includes a methodology set forth in Exhibit E.2 to the agreement for determining the maximum schedule of rates and charges for all levels of solid waste collection services for Rate Period Four; and WHEREAS, the City reviewed all aspects of the rate request from Recology using the approved methodology; and
WHEREAS, the solid waste collector is solely responsible for setting and collecting such rates and charges at a level at or below the established maximum schedule; and WHEREAS, the Resource Recovery Enterprise Fund 520-330 (“Resource Recovery Fund”) is an enterprise fund held by the City whose purpose is to pay for operating costs related to the collection, disposal, and recycling of solid waste performed under franchise; and WHEREAS, the City Council approved on December 16, 2020 that it would be prudent to establish a target reserve for the Resource Recovery Fund of Five Hundred Thousand Dollars ($500,000), which is approximately two percent of the City’s current annual solid waste program operating costs, and that such reserve may be drawn below the targeted reserve amount based on the reasonable discretion of the Director of Public Works consistent with the City’s budget and other financial policies and procedures; and
WHEREAS, the City has determined that it would be appropriate to make strategic use of amounts in the Resource Recovery Fund in excess of the recommended reserve to smooth and mitigate rate adjustments for the benefit of ratepayers; and WHEREAS, such strategic use of the Resource Recovery Fund was anticipated during the development of the Fiscal Year 23-24 Base Budget; and
NOW, THEREFORE, BE IT RESOLVED that the City Council does hereby:

1. Acknowledge the foregoing recitals are true and correct and incorporated into this Resolution by this reference.

2. Adopt the maximum rate schedule for Rate Period Four (beginning February 1, 2024) (Exhibit A).

3. Authorize use of $547,800 from the Resource Recovery Fund 520-330 to smooth and mitigate the rate adjustment in Rate Period Four, in the manner as more particularly described in the Franchise Agreement at Section 8.2.C.

PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 5
th day of December, 2023, by the following vote:

Members of the City Council
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Attachment A
AYES:

NOES:

ABSENT:

ABSTAIN:

SIGNED:
________
Hung Wei, Mayor
City of Cupertino
________________________
Date
ATTEST:
________
Kirsten Squarcia, City Clerk
________________________
Date
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Attachment A
Residential Rate Schedule
City of Cupertino
February 1, 2024
Single Family Dwelling
Curbside 24 gallon $39.67
Curbside 32 gallon $42.19
Curbside 64 gallon $81.20
Curbside 96 gallon $120.20
Curbside Add'l Cart $39.00
Walk-up 24 gallon $60.62
Walk-up 32 gallon $63.15
Walk-up 64 gallon $123.09
Walk-up 96 gallon $183.02
Walk-up Add'l Cart $59.94
Additional Organics/YW Toter: No Charge
Low Income
Curbside 24 gallon $19.17
Curbside 32 gallon $21.69
Walk-up 24 gallon $31.28
Walk-up 32 gallon $33.80
Late Charge Fee

1.2% Per Month Delinquent
(Not compounded)
Additional Charges
Extra Bag Tag $11.34
10 Bag Tags $107.91
Extra Can (1-Time) $19.54
Dirty Cart Exchange $44.14
Extra Bulky Item Pickup $195.00
Extra Bulky = charge for maximum allowed quantity
at one pickup per the Franchise Agreement.

Actual charge based on material collected.
24 HR Container Service
Bin By The Day 4 Yard $252.24
Bin By The Day 6 Yard $308.92
Bin By The Day 7 Yard $337.26
Exhibit A
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Attachment A
Multi-Family Garbage Rate Schedule
City of Cupertino
February 1, 2024
Front Loader Containers

1.5 CY 1XWK $198.14 1.5 CY 4XWK $792.62

1.5 CY 2XWK $396.32 1.5 CY 5XWK $990.79

1.5 CY 3XWK $594.46 1.5 CY 6XWK $1,188.90
Extra P/U $61.46
2 CY 1XWK $237.84 2 CY 4XWK $951.10
2 CY 2XWK $475.52 2 CY 5XWK $1,188.90
2 CY 3XWK $713.38 2 CY 6XWK $1,426.66
Extra P/U $76.80
3 CY 1XWK $317.04 3 CY 4XWK $1,268.20
3 CY 2XWK $634.07 3 CY 5XWK $1,585.22
3 CY 3XWK $951.10 3 CY 6XWK $1,902.25
Extra P/U $83.99
4 CY 1XWK $396.32 4 CY 4XWK $1,585.22
4 CY 2XWK $792.62 4 CY 5XWK $1,981.56
4 CY 3XWK $1,188.90 4 CY 6XWK $2,377.82
Extra P/U $104.72
6 CY 1XWK $554.82 6 CY 4XWK $2,219.30
6 CY 2XWK $1,109.65 6 CY 5XWK $2,774.13
6 CY 3XWK $1,664.47 6 CY 6XWK $3,328.97
Extra P/U $145.73
8 CY 1XWK $713.40 8 CY 4XWK $2,853.38
8 CY 2XWK $1,426.66 8 CY 5XWK $3,566.72
8CY 3XWK $2,140.07 8CY 6XWK $4,280.08
Extra P/U $188.49
Bin Pushout Service
1XWK $69.77 4XWK $279.43
2XWK $139.90 5XWK $348.78
3XWK $209.48 6XWK $419.50
* Pushout service only applies if containers are moved more than 25ft.

Cart Pushout Service per set of 3 carts: Garbage, Recycle, Organic 1XWK $16.50 4XWK $65.96
2XWK $32.98 5XWK $82.46
3XWK $49.48 6XWK $98.94
* Pushout service only applies if containers are moved more than 25ft. Rate includes up to 50ft.

More than 50ft add an addition 10% for each addition 10ft.

Key Service
$77.69
32 Special Services $129.52
Steam Clean and Re-Delivery of Bin
(Shall be provided once per year w/o charge)
Furnishing Chains (One Time Only)
Extra Bulky Item Pickup
Extra Bulky Item Pickup $195.00
Extra Bulky = charge for maximum allowed quantity
at one pickup per the Franchise Agreement.

Actual charge based on material collected.

Multi Family Garbage Cart
gallon increments $31.50
Front Load Compactor
Per Cubic Yard Per Pull
$55.97
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Return Trip Fee $17.27
Attachment A
Commercial Garbage Rate Schedule
City of Cupertino
February 1, 2024
Front Loader Containers

1.5 CY 1XWK $198.14 1.5 CY 4XWK $792.62

1.5 CY 2XWK $396.32 1.5 CY 5XWK $990.79

1.5 CY 3XWK $594.46 1.5 CY 6XWK $1,188.90
Extra P/U $61.46
2 CY 1XWK $237.84 2 CY 4XWK $951.10
2 CY 2XWK $475.52 2 CY 5XWK $1,188.90
2 CY 3XWK $713.38 2 CY 6XWK $1,426.66
Extra P/U $76.80
3 CY 1XWK $317.04 3 CY 4XWK $1,268.20
3 CY 2XWK $634.07 3 CY 5XWK $1,585.22
3 CY 3XWK $951.10 3 CY 6XWK $1,902.25
Extra P/U $83.99
4 CY 1XWK $396.32 4 CY 4XWK $1,585.22
4 CY 2XWK $792.62 4 CY 5XWK $1,981.56
4 CY 3XWK $1,188.90 4 CY 6XWK $2,377.82
Extra P/U $104.72
6 CY 1XWK $554.82 6 CY 4XWK $2,219.30
6 CY 2XWK $1,109.65 6 CY 5XWK $2,774.13
6 CY 3XWK $1,664.47 6 CY 6XWK $3,328.97
Extra P/U $145.73
8 CY 1XWK $713.40 8 CY 4XWK $2,853.38
8 CY 2XWK $1,426.66 8 CY 5XWK $3,566.72
8CY 3XWK $2,140.07 8CY 6XWK $4,280.08
Extra P/U $188.49
Bin Pushout Service
1XWK $69.77 4XWK $279.43
2XWK $139.90 5XWK $348.78
3XWK $209.48 6XWK $419.50
* Pushout service only applies if containers are moved more than 25ft.

Cart Pushout Service per set of 3 carts: Garbage, Recycle, Organic 1XWK $16.50 4XWK $65.96
2XWK $32.98 5XWK $82.46
3XWK $49.48 6XWK $98.94
* Pushout service only applies if containers are moved more than 25ft. Rate includes up to 50ft.

More than 50ft add an addition 10% for each addition 10ft. 32 Commercial Garbage Cart
gallon increments $31.50
Key Service
$77.69
Special Services $129.52
Steam Clean and Re-Delivery of Bin
(Shall be provided once per year w/o charge)
Furnishing Chains (One Time Only)
Front Load Compactor
Per Cubic Yard Per Pull
$55.97
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Return Trip Fee $17.27
Attachment A
Commercial/Multi Family Recycle Rate Schedule
City of Cupertino
February 1, 2024
Front Loader Containers

1.5 CY 1XWK $95.12 1.5 CY 4XWK $380.51

1.5 CY 2XWK $190.26 1.5 CY 5XWK $475.64

1.5 CY 3XWK $285.38 1.5 CY 6XWK $570.75
Extra P/U $29.50
2 CY 1XWK $114.17 2 CY 4XWK $456.59
2 CY 2XWK $228.28 2 CY 5XWK $570.75
2 CY 3XWK $342.47 2 CY 6XWK $684.88
Extra P/U $36.86
3 CY 1XWK $152.21 3 CY 4XWK $608.82
3 CY 2XWK $304.40 3 CY 5XWK $761.00
3 CY 3XWK $456.59 3 CY 6XWK $913.20
Extra P/U $40.32
4 CY 1XWK $190.26 4 CY 4XWK $761.00
4 CY 2XWK $380.51 4 CY 5XWK $951.27
4 CY 3XWK $570.75 4 CY 6XWK $1,141.50
Extra P/U $50.26
6 CY 1XWK $266.35 6 CY 4XWK $1,065.41
6 CY 2XWK $532.70 6 CY 5XWK $1,331.76
6 CY 3XWK $799.04 6 CY 6XWK $1,598.11
Extra P/U $69.96
8 CY 1XWK $342.48 8 CY 4XWK $1,369.79
8 CY 2XWK $684.88 8 CY 5XWK $1,712.24
8CY 3XWK $1,027.36 8CY 6XWK $2,054.70
Extra P/U $90.49
Bin Pushout Service
1XWK $69.77 4XWK $279.43
2XWK $139.90 5XWK $348.78
3XWK $209.48 6XWK $419.50
* Pushout service only applies if containers are moved more than 25ft.

Cart Pushout Service per set of 3 carts: Garbage, Recycle, Organic 1XWK $16.50 4XWK $65.96
2XWK $32.98 5XWK $82.46
3XWK $49.48 6XWK $98.94
* Pushout service only applies if containers are moved more than 25ft. Rate includes up to 50ft.

More than 50ft add an addition 10% for each addition 10ft.

Recycle Cart Key Service
32 gallon increments $15.12 $77.69
Special Services $129.52
Steam Clean and Re-Delivery of Bin
(Shall be provided once per year w/o charge)
Furnishing Chains (One Time Only)
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Return Trip Fee $17.27
Attachment A
Commercial/Multi Family Organic Rate Schedule
City of Cupertino
February 1, 2024
Front Loader Containers

1.0 CY 1XWK $158.43 1.0 CY 4XWK $633.75

1.0 CY 2XWK $316.88 1.0 CY 5XWK $792.19

1.0 CY 3XWK $475.31 1.0 CY 6XWK $950.63
Extra P/U $51.19

1.5 CY 1XWK $198.14 1.5 CY 4XWK $792.62

1.5 CY 2XWK $396.32 1.5 CY 5XWK $990.79

1.5 CY 3XWK $594.46 1.5 CY 6XWK $1,188.90
Extra P/U $61.46
2 CY 1XWK $237.84 2 CY 4XWK $951.10
2 CY 2XWK $475.52 2 CY 5XWK $1,188.90
2 CY 3XWK $713.38 2 CY 6XWK $1,426.66
Extra P/U $76.80
3 CY 1XWK $317.04 3 CY 4XWK $1,268.20
3 CY 2XWK $634.07 3 CY 5XWK $1,585.22
3 CY 3XWK $951.10 3 CY 6XWK $1,902.25
Extra P/U $83.99
4 CY 1XWK $396.32 4 CY 4XWK $1,585.22
4 CY 2XWK $792.62 4 CY 5XWK $1,981.56
4 CY 3XWK $1,188.90 4 CY 6XWK $2,377.82
Extra P/U $104.72
6 CY 1XWK $554.82 6 CY 4XWK $2,219.30
6 CY 2XWK $1,109.65 6 CY 5XWK $2,774.13
6 CY 3XWK $1,664.47 6 CY 6XWK $3,328.97
Extra P/U $145.73
8 CY 1XWK $713.40 8 CY 4XWK $2,853.38
8 CY 2XWK $1,426.66 8 CY 5XWK $3,566.72
8CY 3XWK $2,140.07 8CY 6XWK $4,280.08
Extra P/U $188.49
Bin Pushout Service
1XWK $69.77 4XWK $279.43
2XWK $139.90 5XWK $348.78
3XWK $209.48 6XWK $419.50
* Pushout service only applies if containers are moved more than 25ft.

Cart Pushout Service per set of 3 carts: Garbage, Recycle, Organic 1XWK $16.50 4XWK $65.96
2XWK $32.98 5XWK $82.46
3XWK $49.48 6XWK $98.94
* Pushout service only applies if containers are moved more than 25ft. Rate includes up to 50ft.

More than 50ft add an addition 10% for each addition 10ft. 32 gallon
Organic Cart
increments $31.50
Key Service
$77.69
Special Services $129.52
Steam Clean and Re-Delivery of Bin
(Shall be provided once per year w/o charge)
Furnishing Chains (One Time Only)
Organic Compactor
Per Cubic Yard Per Pull
$55.97
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Attachment A
Debris Box Service Rate Schedule City of Cupertino February 1, 2024 Description 16DO 20DO 26DO 30DO 40DO
Allowed Tons 3 4 4 5 6
Base Rates $ 667.85$ 745.63 $ 1,021.98 $ 1,208.38 $ 1,289.05 Add'l Tons $ 124.23$ 124.23 $ 124.23 $ 124.23 $ 124.23
Processor Newby Newby Newby Newby Newby
Source Separated Recycling 08DOR 08DOR 08DO 16DOR-40DOR 16DOR-40DOR Clean Dirt
Clean Concrete
Asphalt
Mix rock, dirt &
concrete Clean Wood Sheet Rock
Allowed Tons 6
Haul Rate $ 598.32 $ 598.32 $ 1,040.47 $ 598.32 $ 598.32 Recycling Process Rate per ton $ 57.97 $ 57.97 $ 57.97 $ 57.97 $ 57.97 Note: Source Separated Recycling Loads will be charged the regular box rate if contaminated or mixed
Other Miscellaneous Rates
Description Code Amount
Daily Rental Rate For Boxes Beyond 7 Days RENT $ 31.76
Weekly Rental Rate For Boxes Beyond 7 Days RENT $ 201.84 Trip Charge For Empty Debris Box/Compactor (No Dump) TRIP $ 119.67 Dry Run, Scheduled Service Bin Empty TRIP $ 239.33
Relocate Container After Initial Delivery RELOC $ 119.67 Same Day Cancelation (No Dump) CANCL $ 79.79
Steam Clean after exchange bring back to yard TRIP $ 239.33 Garbage, Organic, and Recycling Compactor Rates
Description Amount Processor Dirty
Garbage Compactor Rates Per Yard Per Pull $ 56.30 Newby N/A Organic Compactor Rates Per Yard Per Pull $ 56.30 Recology $ 70.38 Mixed Recycling Compactor Rates Per Pull $ 541.86 GW Recovery $ 680.69 Mixed Recycling Compactor Rates Per Ton $ 83.90 GW Recovery $ 119.81 118
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FRANCHISE AGREEMENT

BETWEEN

CITY OF CUPERTINO
AND

RECOLOGY CUPERTINO
FOR

RECYCLABLE MATERIALS, ORGANIC MATERIALS, AND SOLID

WASTE COLLECTION,

RECYCLABLE MATERIALS AND ORGANIC MATERIALS

PROCESSING SERVICES,
AND

TRANSPORT FOR DISPOSAL
DECEMBER 3, 2020
Attachment B
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December 3, 2020 -i- City of Cupertino/Recology Franchise Agreement Table of Contents
RECITALS ..................................................................................................................................... 1 ARTICLE 1. GRANT AND ACCEPTANCE OF FRANCHISE ...................................................................... 2

1.1 GRANT AND ACCEPTANCE OF FRANCHISE ........................................................................ 2

1.2 LIMITATIONS TO THE FRANCHISE .................................................................................... 2

1.3 OBLIGATIONS OF PARTIES .............................................................................................. 5 ARTICLE 2. TERM OF AGREEMENT ................................................................................................. 5

2.1 TERM AND OPTION TO EXTEND ...................................................................................... 5

2.2 CONDITIONS TO EFFECTIVENESS OF AGREEMENT ............................................................. 5 ARTICLE 3. SCOPE OF AGREEMENT ................................................................................................ 6

3.1 SUMMARY SCOPE OF SERVICES ...................................................................................... 6

3.2 USE OF APPROVED FACILITIES......................................................................................... 7

3.3 SUBCONTRACTING ........................................................................................................ 7

3.4 RESPONSIBILITY FOR MATERIALS .................................................................................... 8

3.5 CITY-DIRECTED CHANGES TO SCOPE ................................................................................ 8 ARTICLE 4. SCOPE OF SERVICES ..................................................................................................... 9

4.1 RECYCLABLE MATERIALS ................................................................................................ 9

4.2 ORGANIC MATERIALS ...................................................................................................14

4.3 SOLID WASTE...............................................................................................................18

4.4 ON-CALL, BULKY ITEM, BIN-BY-THE-DAY, AND CITY-WIDE RECYCLING COLLECTION EVENTS ..19

4.5 C&D COLLECTION .........................................................................................................19

4.6 SPECIAL EVENTS ...........................................................................................................20

4.7 PUBLIC EDUCATION AND OUTREACH..............................................................................21

4.8 TECHNICAL ASSISTANCE ................................................................................................23

4.9 BILLING .......................................................................................................................24

4.10 CUSTOMER SERVICE PROGRAM .....................................................................................26

4.11 ACCESS TO CUSTOMER SERVICE AND BILLING SYSTEMS....................................................32

4.12 SERVICE EXEMPTIONS...................................................................................................32

4.13 CONTAMINATION MONITORING ....................................................................................34

4.14 SB 1383 INSPECTIONS AND ENFORCEMENT ....................................................................36

4.15 EDIBLE FOOD RECOVERY PROGRAM ...............................................................................39

4.16 SB 1383 COMPLIANCE APPROACH..................................................................................39 ARTICLE 5. STANDARD OF PERFORMANCE.....................................................................................40

5.1 GENERAL .....................................................................................................................40

5.2 OPERATING HOURS AND SCHEDULES .............................................................................40

5.3 COLLECTION STANDARDS ..............................................................................................40

5.4 TRANSFER AND PROCESSING STANDARDS ......................................................................43

5.5 COLLECTION VEHICLE REQUIREMENTS ...........................................................................44

5.6 CONTAINER REQUIREMENTS .........................................................................................46

5.7 PERSONNEL .................................................................................................................51

5.8 HAZARDOUS WASTE INSPECTION AND HANDLING ...........................................................53 121
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December 3, 2020 -ii- City of Cupertino/Recology Franchise Agreement

5.9 CONTRACT MANAGEMENT ...........................................................................................54

5.10 ENVIRONMENTALLY-PREFERABLE PURCHASING ..............................................................55

5.11 DIVERSION REQUIREMENTS ..........................................................................................55 ARTICLE 6. RECORD KEEPING AND REPORTING ..............................................................................56

6.1 RECORD KEEPING .........................................................................................................56

6.2 REPORT SUBMITTAL REQUIREMENTS .............................................................................57

6.3 PERFORMANCE REVIEW AND AUDIT ..............................................................................58 ARTICLE 7. CITY FEES ...................................................................................................................58

7.1 FRANCHISE FEE ............................................................................................................58

7.2 SOLID WASTE FUND OPERATIONS FEE ............................................................................59

7.3 ADJUSTMENT TO FEES ..................................................................................................59

7.4 PAYMENT SCHEDULE AND LATE FEES .............................................................................59

7.5 PROCUREMENT REIMBURSEMENT FEE ...........................................................................60

7.6 OTHER MONIES DUE TO CITY .........................................................................................60 ARTICLE 8. CONTRACTOR'S COMPENSATION .................................................................................60

8.1 GENERAL .....................................................................................................................60

8.2 CONTRACTOR’S COMPENSATION AND ANNUAL ADJUSTMENTS ........................................61

8.3 EXTRAORDINARY RATE ADJUSTMENTS ...........................................................................64 ARTICLE 9. INDEMNITY, INSURANCE, AND PERFORMANCE BOND....................................................65

9.1 INDEMNIFICATION .......................................................................................................65

9.2 INSURANCE .................................................................................................................67

9.3 PERFORMANCE BOND ..................................................................................................68 ARTICLE 10. DEFAULT AND REMEDIES ...........................................................................................69

10.1 EVENTS OF DEFAULT ....................................................................................................69

10.2 OPPORTUNITY TO CURE ................................................................................................70

10.3 CITY’S REMEDIES IN THE EVENT OF DEFAULT...................................................................71

10.4 POSSESSION OF RECORDS UPON TERMINATION ..............................................................71

10.5 CITY'S REMEDIES CUMULATIVE; SPECIFIC PERFORMANCE .................................................72

10.6 PERFORMANCE STANDARDS AND LIQUIDATED DAMAGES ................................................72

10.7 EXCUSE FROM PERFORMANCE ......................................................................................73

10.8 RIGHT TO DEMAND ASSURANCES OF PERFORMANCE ......................................................74

10.9 DISPUTE RESOLUTION...................................................................................................74 ARTICLE 11. REPRESENTATIONS AND WARRANTIES OF THE PARTIES ...............................................75

11.1 CONTRACTOR’S CORPORATE STATUS .............................................................................75

11.2 CONTRACTOR’S CORPORATE AUTHORIZATION ................................................................75

11.3 AGREEMENT WILL NOT CAUSE BREACH ..........................................................................75

11.4 NO LITIGATION ............................................................................................................76

11.5 NO ADVERSE JUDICIAL DECISIONS ..................................................................................76

11.6 NO LEGAL PROHIBITION ................................................................................................76

11.7 CONTRACTOR’S ABILITY TO PERFORM ............................................................................76

11.8 CONTRACTOR’S INVESTIGATION ....................................................................................76

11.9 STATEMENT AND INFORMATION IN PROPOSAL ...............................................................76 122
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December 3, 2020 -iii- City of Cupertino/Recology Franchise Agreement ARTICLE 12. OTHER AGREEMENTS OF THE PARTIES ........................................................................77

12.1 RELATIONSHIP OF PARTIES ............................................................................................77

12.2 COMPLIANCE WITH LAW...............................................................................................77

12.3 GOVERNING LAW .........................................................................................................77

12.4 JURISDICTION ..............................................................................................................77

12.5 BINDING ON SUCCESSORS .............................................................................................77

12.6 ASSIGNMENT ...............................................................................................................77

12.7 NO THIRD PARTY BENEFICIARIES ....................................................................................79

12.8 WAIVER ......................................................................................................................79

12.9 NOTICE PROCEDURES ...................................................................................................79

12.10 REPRESENTATIVES OF THE PARTIES ............................................................................80 ARTICLE 13. MISCELLANEOUS AGREEMENTS..................................................................................80

13.1 ENTIRE AGREEMENT .....................................................................................................80

13.2 SECTION HEADINGS ......................................................................................................80

13.3 REFERENCES TO LAWS ..................................................................................................80

13.4 AMENDMENTS ............................................................................................................81

13.5 SEVERABILITY ..............................................................................................................81

13.6 COUNTERPARTS ...........................................................................................................81

13.7 DEFINITIONS ................................................................................................................81

13.8 EXHIBITS .....................................................................................................................81 123
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December 3, 2020 -iv- City of Cupertino/Recology Franchise Agreement List of Exhibits
A. Definitions
B. Direct Services
B1. Single-Family Residential Services
B2. Multi-Family Residential Services
B3. Commercial Services
B4. City Services
B5. City Facility Service Levels, Locations, and Special Events C. Public Education and Outreach Requirements
D. Reporting Requirements
E. Rate Adjustment Methodology
E1. Multi-Index Rate Adjustment Methodology
E2. Cost-Based Rate Adjustment Methodology
F. Performance Standards and Liquidated Damages
G. Excerpts of Contractor’s Proposal
G1. Excerpts of Technical Proposal
G2. Cost Basis for Proposal
G3. Initial Rates for Collection Services
G4. Approved Subcontractors and Affiliates
H. Minimum Anticipated Positions
I. Form of Performance Bond
J. SB 1383 Responsibilities
K. Guaranty Agreement
L. Diversion Data
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December 3, 2020 -1- City of Cupertino/Recology Franchise Agreement 1 Franchise Agreement
2 between
3 City of Cupertino
4 and
5 Recology Cupertino
6 for Recyclable Materials, Organic Materials, and Solid Waste 7 Collection, Recyclable Materials and Organic Materials Processing 8 Services, and Transport For Disposal
9 THIS FRANCHISE AGREEMENT (“Agreement”) is made and entered into as of ________________, 2020 10 between the City of Cupertino, California, a political subdivision of the State of California (hereinafter, the 11 "City"), and Recology South Bay (d/b/a Recology Cupertino), a California corporation (hereinafter, 12 "Contractor").
13 RECITALS
14 This Agreement is entered into with reference to the following facts and circumstances:
15 WHEREAS, the Legislature of the State of California, by enactment of the California Integrated Waste 16 Management Act of 1989 (AB 939) (California Public Resources Code Section 40000 et seq.), has declared 17 that it is in the public interest to authorize and require local agencies to make adequate provisions for 18 Solid Waste Collection within their jurisdiction; and, 19 WHEREAS, the State of California has found and declared that the amount of refuse generated in 20 California, coupled with diminishing Disposal capacity, potential adverse environmental impacts from 21 landfilling, and the need to conserve natural resources, have created an urgent need for State and local 22 agencies to enact and implement an aggressive integrated waste management program. The State has, 23 through enactment of AB 939 and subsequent related legislation including, but not limited to: the Jobs 24 and Recycling Act of 2011 (AB 341), the Event and Venue Recycling Act of 2004 (AB 2176), SB 1016 25 (Chapter 343, Statutes of 2008 [Wiggins, SB 1016]), the Mandatory Commercial Organics Recycling Act of 26 2014 (AB 1826), and the Short-Lived Climate Pollutants Bill of 2016 (SB 1383), directed the responsible 27 State agency, and all local agencies, to promote Diversion and to maximize the use of feasible waste 28 reduction, re-use, Recycling, and Composting options in order to reduce the amount of refuse that must 29 be Disposed; and,
30 WHEREAS, SB 1383 establishes regulatory requirements for jurisdictions, Generators, haulers, Solid Waste 31 facilities, and other entities to support achievement of State-wide Organic Waste Disposal reduction 32 targets; and,
33 WHEREAS, SB 1383 requires the City to implement Collection programs, meet Processing Facility 34 requirements, conduct contamination monitoring, provide education, maintain records, submit reports, 35 monitor compliance, conduct enforcement, and fulfill other requirements; and, the City has chosen to 36 delegate some of its responsibilities to Contractor, acting as the City’s designee, through this Agreement; 37 and,
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December 3, 2020 -2- City of Cupertino/Recology Franchise Agreement 38 WHEREAS, pursuant to California Public Resources Code Section 40059(a)(2), the City Council has 39 determined that the public health, safety, and well-being require that an exclusive right be awarded to a 40 qualified contractor to provide for certain Collection, Processing, and Transport of Recyclable Materials, 41 Organic Materials, and C&D, and Disposal of Solid Waste, and other services related to meeting the City’s 42 health, safety, well-being, economic and environmental goals; and, 43 WHEREAS, the City further declares its intent to approve reasonable maximum Rates for the Collection, 44 Processing, Transport, and/or Disposal of Recyclable Materials, Organic Materials, Solid Waste, and C&D, 45 and other services related thereto; and,
46 WHEREAS, the City desires, having determined that Contractor, by demonstrated experience, reputation 47 and capacity is qualified to provide for both the Collection of Recyclable Materials, Organic Materials, 48 Solid Waste, and C&D within the corporate limits of the City and the Transportation of such material to 49 appropriate places of Processing, Recycling, Composting, and/or Disposal, and that Contractor be engaged 50 to perform such services on the basis set forth in this Agreement; and, 51 WHEREAS, the City and Contractor have attempted to address conditions affecting their performance of 52 services under this Agreement, but recognize that reasonably unanticipated conditions may occur during 53 the Term of this Agreement that will require the Parties to meet and confer to reasonably respond to such 54 changed conditions; and
55 WHEREAS, under Municipal Code Section 6.24.120, the City Council may enter into an exclusive contract 56 with any Person or entity the Council believes is qualified to perform Collection, Processing, Transport, 57 and Disposal service, and such contract shall require the Contractor to render service to all Residential 58 and Commercial Premises within the City in accordance with the Municipal Code, and otherwise under 59 such terms as the City Council deems necessary to protect the best interests of the City; 60 NOW, THEREFORE, in consideration of the mutual promises, covenants, and conditions contained in this 61 Agreement and for other good and valuable consideration, the Parties agree as follows:
62 ARTICLE 1.
63 GRANT AND ACCEPTANCE OF FRANCHISE
64 1.1 GRANT AND ACCEPTANCE OF FRANCHISE
65 By the signing of this Agreement the City grants to Contractor and Contractor accepts the exclusive right 66 and franchise, within the corporate limits of the City, to Collect and Transport all Recyclable Materials, 67 Organic Materials, Yard Trimmings, Construction and Demolition Debris, and Solid Waste generated or 68 accumulated within the corporate limits of the City, subject to the limitations described herein and except 69 where otherwise precluded by Federal, State, and local laws and regulations. 70 1.2 LIMITATIONS TO THE FRANCHISE
71 The award of this Agreement shall not preclude the activities specified in this Section 1.2 by Persons other 72 than Contractor, provided that nothing in this Agreement is intended to or shall be construed to excuse 73 any Person from obtaining any authorization from the City, which is otherwise required by law. Contractor 74 acknowledges and agrees that the City may permit other Persons besides Contractor to Collect any and 75 all types of materials excluded from the scope of this Agreement without seeking or obtaining approval 126
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December 3, 2020 -3- City of Cupertino/Recology Franchise Agreement 76 of Contractor. If Contractor can produce evidence that other Persons are servicing Collection Containers 77 or are Collecting and Transporting Recyclable Materials, Organic Materials, C&D, and/or Solid Waste in a 78 manner that is not consistent with this Agreement or the Municipal Code, it shall report it to the City 79 Contract Manager along with Contractor’s evidence. Contractor shall have primary responsibility to notify 80 the Generator and such Person of Contractor’s rights under this Agreement. 81 A. Recyclable and Organic Materials. Collection and Transport of Recyclable Materials and Organic 82 Materials that have been Source Separated from Solid Waste by the Generator and that: (1) 83 Generator sells or donates to any other Person, provided that there is no net payment made by 84 the Generator to such other Person; or, (2) have a value equal to or more than the cost of 85 Collection.
86 B. Self-Hauled Materials. Transport and Disposal by a Property Owner of Recyclable Materials, 87 Organic Materials, and Solid Waste generated in or on the Premises by the Property Owner or a 88 Person leasing or renting the Premises from the Property Owner, using a vehicle such Person owns 89 or controls.
90 C. Construction and Demolition Debris (C&D). Collection and Transport of mixed material 91 Construction and Demolition Debris (C&D) by a licensed construction or demolition contractor as 92 part of a total service offered by that contractor when removal is performed by an employee of 93 the contractor using equipment owned by the contractor, rather than as a hauling service, and 94 consistent with the Municipal Code and other Applicable Law. C&D materials Source Separated 95 for the purpose of Recycling are considered Recyclable Materials. In cases where Contractor does 96 not have the equipment needed for timely removal of C&D materials or due to other extenuating 97 circumstance, a third party hauling service may be used with advance approval of both Contractor 98 and the City Contract Manager.
99 D. Donated or Sold Materials. Collection and Transport of any items that are Source Separated at 100 any Premises by the Generator and sold or donated to other Persons, including youth, civic, or 101 charitable organizations, as provided in Section 1.2.A. 102 E. Edible Food. Collection and Transport of Edible Food from a Generator by other Person(s), such 103 as a Person from a Food Recovery Organization or Food Recovery Service, for the purposes of 104 Food Recovery; or Self-Haul of Edible Food by the Generator to another Person(s), such as a 105 Person from a Food Recovery Organization, for the purposes of Food Recovery, regardless of 106 whether the Generator donates, sells, or pays a fee to the other Person(s) to Collect or receive 107 the Edible Food.
108 F. Food Scraps. Collection and Transport of Food Scraps that are Source Separated by the Generator 109 and used by the Generator or distributed to other Person(s) for lawful use as animal feed, in 110 accordance with 14 CCR Section 18983.1(b)(7). Such Food Scraps may be Self-Hauled by the 111 Generator or Transported by another Person. If Contractor produces evidence to City that use of 112 this exception by Commercial haulers is adversely affecting the value of this franchise, Diversion 113 levels, or compliance with City ordinances, then the Parties shall meet and confer and City will 114 consider in good faith whether to institute a permit system regulating such haulers or take other 115 appropriate action to address the problem.
116 G. Materials That Contractor Does Not Divert. Source Separated materials that Contractor is not 117 required to Collect, Process, and Divert under this Agreement as of the Effective Date that 127
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December 3, 2020 -4- City of Cupertino/Recology Franchise Agreement 118 subsequently, in the City’s reasonable judgment, become economically feasible to Divert. In such 119 event, Contractor shall have the exclusive right to Collect, Process, and Divert such materials if 120 Contractor agrees to do so without any change in Rates. If Contractor is unwilling to Collect, 121 Process, and Divert such materials without any change in Rates, the City may provide for 122 Collection, Processing, and Diversion of such materials in any manner it deems appropriate. Such 123 materials may include, but are not limited to, Organic Materials that Contractor would otherwise 124 Dispose. Contractor may not enforce its exclusive franchise rights in a manner that would prevent 125 the Diversion of new material that Contractor is unable or unwilling to Collect, Process, and Divert 126 without any change in Rates.
127 H. Beverage Containers. Collection and Transport of containers delivered for Recycling under the 128 California Beverage Container Recycling and Litter Reduction Act, California Public Resources 129 Code Section 14500, et seq.
130 I. Materials Removed by Customer’s Contractor as Incidental Part of Services. Collection and 131 Transport of Recyclable Materials, Organic Materials, Solid Waste, and Bulky Items removed from 132 a Premises by a contractor (e.g., gardener, landscaper, tree-trimming service, Residential clean133 out service) as an incidental part of the service being performed, rather than as a separately 134 contracted or subcontracted hauling service, where the removal is performed by such 135 contractor’s employees using only equipment owned by the contractor and in compliance with 136 Applicable Law or if such contractor is providing a service that is not included in the scope of this 137 Agreement.
138 J. On-site or Community Composting. Use of Organic Materials Composted or otherwise legally 139 managed at the Premises where it is generated (e.g., backyard Composting or on-site anaerobic 140 digestion) or Collection and Transport of such Organic Materials by the Generator for use at a 141 Community Composting site.
142 K. Animal, Grease Waste, and Used Cooking Oil. Collection and Transport of (i) animal waste and 143 remains from slaughterhouse or butcher shops, (ii) grease, or (iii) used cooking oil in quantities 144 (e.g., from food service establishments).
145 L. Horse Manure. Collection and Transport of horse manure from Residential and Commercial 146 Premises.
147 M. Sewage Treatment By-Product. Collection and Transport of by-products of sewage treatment, 148 including sludge, sludge ash, grit, and screenings, including non-Hazardous material that is greater 149 than fifty percent (50%) liquid (including septic tank pumpings and other liquid wastes). 150 N. Excluded Waste. Collection and Transport of Excluded Waste regardless of its source. 151 O. Materials Generated by State and County Facilities. Collection and Transport of materials 152 generated by State and County facilities located in the City including, but not limited to, the 153 Cupertino Union School District, provided that the Generator has arranged services with other 154 Persons or has arranged services with Contractor through a separate agreement. 155 This Agreement and scope of this franchise shall be interpreted to be consistent with applicable Federal, 156 State, and local laws and regulations, now and during the Term of the Agreement. If applicable Federal, 157 State, and local laws and regulations limit the ability of the City to lawfully contract for the scope of 128
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December 3, 2020 -5- City of Cupertino/Recology Franchise Agreement 158 services in the manner and consistent with all provisions as specifically set forth herein, Contractor agrees 159 that the scope of the Agreement will be revised and limited as required by such Applicable Law and that 160 the City shall not be responsible for any lost profits or losses claimed by Contractor to arise out of such 161 revisions or limitations.
162 1.3 OBLIGATIONS OF PARTIES
163 In addition to the specific performance required under the Agreement, the City and Contractor shall:
164 A. Use their reasonable Commercial efforts to enforce the exclusive nature of the franchise. 165 Contractor may take legal action to protect the exclusive franchise rights granted to it under this 166 Agreement; City shall have no obligation to pursue such enforcement on Contractor’s behalf. 167 B. Provide timely notice to one another of a perceived failure to perform any obligations under this 168 Agreement and access to information supporting any claim of the other Party’s failure to perform. 169 C. Provide timely access to the City Contract Manager and Contractor’s Contract Manager and 170 complete and timely response to requests of the other Party. 171 D. Provide timely notice of matters that may affect either Party’s ability to perform under the 172 Agreement.
173 ARTICLE 2.
174 TERM OF AGREEMENT
175 2.1 TERM AND OPTION TO EXTEND
176 The Term of this Agreement shall commence February 1, 2021 (the “Commencement Date”) and continue 177 in full force for a period of ten (10) years, through and including January 31, 2031, unless the Agreement 178 is extended in accordance with this Section or terminated pursuant to Section 10.3. Between the Effective 179 Date and Commencement Date, Contractor shall perform all activities necessary to prepare itself to start 180 providing services required by this Agreement on the Commencement Date. 181 This Agreement may be extended by mutual agreement of the Parties one or more times without 182 amendment for a period of no more than five (5) additional years for a total Term that does not extend 183 beyond January 31, 2036. If the City desires to extend the Agreement, the City shall provide Contractor 184 with a written offer to extend the Agreement at least one (1) year before the expiration of the initial Term 185 and at least one (1) year before the expiration of any extended term. Such offer by the City shall specify 186 the duration of the extension, which shall be in one (1) year increments. Contractor shall respond to City’s 187 offer within thirty (30) days stating in writing whether it accepts or declines City’s offer. If this Agreement 188 is extended pursuant to this paragraph, then Rates for Rate Period Eleven (11) will be established using 189 the cost-based Rate adjustment methodology described in Exhibit E2. 190 2.2 CONDITIONS TO EFFECTIVENESS OF AGREEMENT
191 The obligation of the City to permit this Agreement to become effective and to perform its undertakings 192 provided for in this Agreement is subject to the satisfaction of all the conditions below, each of which may 193 be waived, in written form only, in whole or in part by the City, in its sole discretion. 129
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December 3, 2020 -6- City of Cupertino/Recology Franchise Agreement 194 A. Accuracy of Representations. Contractor’s representations and warranties made in Contractor’s 195 Proposal and Article 11 are true and correct on and as of the Effective Date. 196 B. Furnishings of Insurance and Performance Bond. Contractor has furnished evidence of the 197 insurance and performance bond required by Article 9 that is satisfactory to the City. 198 C. Permits Furnished. Contractor has provided the City with copies of all permits necessary for use 199 and operation of all Approved Facilities owned or operated by Contractor or any Subcontractor 200 under the terms of this Agreement.
201 D. Legal Challenge. There is no litigation pending, or threatened in writing, challenging the award of 202 this Agreement or actions related thereto, or seeking to restrain or enjoin the performance of this 203 Agreement. Notwithstanding anything to the contrary in this Agreement, Contractor shall be 204 entitled to rescind this Agreement upon thirty (30) calendar days’ prior written notice to the City 205 if the condition is not satisfied or waived in writing by the City within sixty (60) days after the date 206 the City Council approves this Agreement.
207 ARTICLE 3.
208 SCOPE OF AGREEMENT
209 3.1 SUMMARY SCOPE OF SERVICES
210 Contractor or its Subcontractor(s) shall be responsible for the following:
211 A. Providing a three-Container Collection program for the separate Collection of Recyclable 212 Materials, Organic Materials, and Solid Waste placed for Collection by Customers pursuant to the 213 requirements of Article 4 and Exhibit B;
214 B. Collecting C&D placed for Collection by Customers pursuant to the requirements of Article 4 and 215 Exhibit B;
216 C. Transporting Collected materials to the appropriate Approved Facilities pursuant to the 217 requirements of Article 4 and Exhibit B;
218 D. Ensuring the Processing of Collected Recyclable Materials, Organic Materials, and C&D at the 219 appropriate Approved Facilities pursuant to the requirements of Article 4 and Exhibit B; 220 E. Performing all other services required by this Agreement including, but not limited to, Customer 221 billing, public education, Customer service, contamination monitoring, record keeping, and 222 reporting pursuant to Articles 4 and 6 and Exhibits C and D; 223 F. Furnishing all labor, supervision, vehicles, Containers, other equipment, materials, supplies, and 224 all other items and services necessary to perform its obligations under this Agreement; 225 G. Paying all expenses related to provision of services required by this Agreement including, but not 226 limited to, taxes, regulatory fees (including City fees), and utilities; 130
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December 3, 2020 -7- City of Cupertino/Recology Franchise Agreement 227 H. Performing or providing all services necessary to fulfill Contractor’s obligations in full accordance 228 with this Agreement at all times using best industry practice for comparable operations; and, 229 I. Complying with all applicable Federal, State, and local laws and regulations. 230 The enumeration and specification of particular aspects of service, labor, or equipment requirements shall 231 not relieve Contractor of the duty to perform all other tasks and activities necessary to fulfill its obligations 232 under this Agreement, regardless of whether such requirements are enumerated elsewhere in the 233 Agreement, unless excused in accordance with Section 10.7. 234 3.2 USE OF APPROVED FACILITIES
235 Contractor, without constraint and as a free-market business decision in accepting this Agreement, agrees 236 to use the Approved Facilities for the purposes of Processing and/or Disposing of all Recyclable Materials, 237 Organic Materials, Solid Waste, and other materials Collected in the City. Such decision by Contractor in 238 no way constitutes a restraint of trade notwithstanding any Change in Law regarding flow control 239 limitations or any definition thereof. The City may direct Contractor’s use of a Designated Facility, as 240 further described in this Section 3.2. The City exercise of such right shall not constitute a change in scope 241 under Section 3.5.
242 It is the City intent that Contractor arrange for Organic Materials and Recyclable Materials Processing, and 243 subcontract for such services at an Approved Recyclable Materials Processing Facility and an Approved 244 Organic Materials Processing Facility. Upon providing Contractor ninety (90) calendar days’ prior written 245 notice, the City may direct Contractor to use a Designated Recyclable Materials Processing Facility(ies), 246 subject to the Transfer provisions of Sections 4.1.B and 4.2.B, and with adjustment of Contractor 247 Compensation pursuant to a cost-based Rate adjustment as provided in Exhibit E2. City shall separately 248 contract with such Designated Recyclable Materials Processing Facility(ies) or, if mutually agreed by City 249 and Contractor, Contractor shall contract with such facility(ies). 250 The City’s current, separate contract for Disposal and C&D Processing terminates on November 20, 2023. 251 At any time during the Term, on or after August 20, 2023, the City may provide Contractor ninety (90) 252 calendar days’ prior written notice requiring Contractor to use a Designated Disposal Facility(ies) and/or 253 a Designated C&D Processing Facility(ies), subject to the Transfer provisions of Sections 4.3 or 4.5 as 254 applicable, and with adjustment of Contractor Compensation pursuant to a cost-based Rate adjustment 255 as provided in Exhibit E2. City shall separately contract with such Designated Disposal Facility(ies) and/or 256 Designated C&D Processing Facility(ies), or, if mutually agreed by City and Contractor, Contractor shall 257 contract with such facility(ies).
258 3.3 SUBCONTRACTING
259 Contractor shall not engage any Subcontractors for Collection or Transportation of Recyclable Materials, 260 Organic Materials, Solid Waste, or C&D Materials, or for Processing of Organic Materials without the prior 261 written consent of the City Contract Manager. As of the Effective Date, the City has approved Contractor’s 262 use of those Subcontractors identified in Contractor’s Proposal, included herein as Exhibit G4. Upon ten 263 (10) Business Days’ prior written notice by the City, Contractor shall provide the City, or permit the City to 264 inspect, a copy of the fully-executed version of any subcontract. 265 Affiliates may only provide services under this Agreement as Subcontractors. Notwithstanding the 266 foregoing, if Contractor plans to engage an Affiliate as a Subcontractor in the provision of services, other 131
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December 3, 2020 -8- City of Cupertino/Recology Franchise Agreement 267 than those identified in Contractor’s Proposal for the limited purposes described in Contractor’s Proposal, 268 Contractor shall provide the City Contract Manager with thirty (30) calendar days’ prior written notice of 269 its plans and provide an explanation of any potential impacts related to the quality, timeliness, or cost of 270 providing services under this Agreement. Any Affiliate subcontracted by Contractor under this Agreement, 271 including but not limited to the Approved Organic Materials Processing Facility, shall be deemed to be 272 one and the same as Contractor for the purposes of Contractor’s obligations under this Agreement and 273 the City shall not accept any excuse from performance on the basis of Contractor’s inability to compel the 274 performance of such an Affiliate.
275 Contractor shall be responsible for ensuring that all Subcontractors (including Affiliates) comply with all 276 material terms of this Agreement that specifically apply to the services subcontracted to them. 277 Subcontractors shall be solely responsible to Contractor throughout the performance of the services 278 under this Agreement. Assignment by Contractor of work to Subcontractors shall not relieve Contractor 279 of any obligation to the City for the work performed. 280 Notwithstanding any other provision of this Agreement, Contractor shall not be responsible for ensuring 281 the compliance of the Designated Disposal Facility or the Designated C&D Processing Facility with the 282 requirements of this Agreement, nor shall the Contractor be responsible for ensuring the compliance with 283 the requirements of this Agreement of any Designated Recyclable Materials Processing Facility that the 284 City may direct Contractor to use pursuant to Section 3.2. 285 3.4 RESPONSIBILITY FOR MATERIALS
286 Once Recyclable Materials, Organic Materials, Solid Waste, and/or C&D are placed in Contractor’s 287 Containers at the Collection location, the responsibility for their proper handling shall transfer directly 288 from the Generator to Contractor, with the exception of Excluded Waste if Contractor can identify the 289 Generator of such Excluded Waste pursuant to Section 5.8.B. Once Recyclable Materials, Organic 290 Materials, Solid Waste, and/or C&D are deposited by Contractor at the appropriate Approved Facility, 291 such materials shall become the responsibility of the Owner or operator of the Approved Facility with the 292 exception of Excluded Waste pursuant to Section 5.8.C. 293 Responsibility for Excluded Waste that has been inadvertently Collected by Contractor shall remain with 294 Contractor if Contractor cannot identify the Generator, and Contractor shall assume all responsibility for 295 its proper Disposal; however, nothing in this Agreement shall be deemed to limit any remedies Contractor 296 or its Affiliates may have against the Generator under applicable Federal, State, and local laws and 297 regulations.
298 3.5 CITY-DIRECTED CHANGES TO SCOPE
299 The City may request Contractor to implement modifications to existing services, to provide additional (or 300 reduced) services under this Agreement, or to otherwise modify Contractor’s obligations under this 301 Agreement. In such case, Contractor shall present, within thirty (30) calendar days after the City’s request, 302 unless an alternate schedule is mutually agreed-upon, a written proposal to provide such modified or 303 additional (or reduced) services or obligations, including the proposed manner of providing the modified 304 or additional (or reduced) services or obligations and the incremental cost (increase or decrease) of the 305 modified or additional (or reduced) services, and any proposed change in Contractor’s Compensation. The 306 City and Contractor shall meet and confer to negotiate Contractor’s Proposal and, if mutual agreement is 307 reached, shall amend this Agreement, as appropriate, to reflect the mutually agreed-upon terms and 132
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December 3, 2020 -9- City of Cupertino/Recology Franchise Agreement 308 conditions. If the City and Contractor are unable to agree on terms and conditions within ninety (90) 309 calendar days after the City’s receipt of Contractor’s Proposal for such services, then the cost implications 310 of the modified, additional, or reduced services or obligations under Section 8.3 (Extraordinary Rate 311 Adjustments) will apply, or the City may permit other Persons to provide such services, provided that such 312 services do not conflict with the exclusivity granted to Contractor under Section 1.1. Nothing herein shall 313 prevent the City from soliciting cost and operating information from other Persons in order to inform the 314 City’s evaluation of Contractor’s Proposal.
315 At any time during the Term of this Agreement, the City may solicit proposals from other Persons for 316 services not contemplated under (and outside the scope of) this Agreement, including as provided in 317 Section 1.2.G. In the event that contracting with other Persons for such services will reduce Contractor’s 318 Compensation under this Agreement, as described in Article 8, Contractor shall be offered the opportunity 319 to match any other Person’s proposed pricing and be awarded the added scope of services. Nothing in 320 this Agreement shall prevent the City from contracting with other Persons in the event that Contractor is 321 unable or unwilling to provide such services at or below the cost proposed by the other Person. 322 City-directed changes in scope include, without limitation, any direction by City to use a different 323 Processing, Transfer, or Disposal Facility from the one then being used by Contractor, except those set 324 forth in Section 3.2, for which a cost-based Rate adjustment under Exhibit E2 is provided. 325 ARTICLE 4.
326 SCOPE OF SERVICES
327 Contractor shall perform services described in this Article 4. This Article 4 describes the general 328 requirements for the services to be provided. More specific requirements for how each service shall be 329 provided to each Customer Type are described in Exhibit B. Failure to specifically require an act necessary 330 to perform the service does not relieve Contractor of its obligation to perform such act. 331 4.1 RECYCLABLE MATERIALS
332 A. Collection. Contractor shall provide Recyclable Materials Collection services as described in 333 Exhibit B, for direct Transport to the Approved Recyclable Materials Processing Facility. Contractor 334 acknowledges that acceptable Recyclable Materials, as described in the definition of “Recyclable 335 Materials” in Exhibit A, may be modified by mutual agreement of the City and Contractor from 336 time to time during the Term of this Agreement.
337 B. Transfer. In the event the City directs Contractor to use a Designated Recyclable Materials 338 Processing Facility as provided in Section 3.2, the Parties will meet and confer, and the City will 339 determine if Transfer will be less expensive than direct Transport to the Designated Recyclable 340 Materials Processing Facility. The City will base its determination on a comparison of the 341 incremental added cost of direct Transport above the agreed distance threshold as described in 342 Exhibit G2, to the cost of Transfer including the Transfer tip fee and hourly Transport costs 343 provided in Exhibit G2, as escalated. If the City requires Contractor to provide for Transfer, 344 Contractor shall Transport Recyclable Materials from the Route to the Approved Transfer Facility, 345 at which time Contractor shall unload Recyclable Materials from Collection vehicles and load 346 Recyclable Materials into large-capacity vehicles and Transport such material to the Designated 347 Recyclable Materials Processing Facility. In the event the City approves use of the Approved 133
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December 3, 2020 -10- City of Cupertino/Recology Franchise Agreement 348 Transfer Facility for Recyclable Materials, any Processing of Recyclable Materials shall be subject 349 to the applicable Processing requirements of Section 4.1.C. 350 Contractor shall keep or cause its Subcontractor to keep all existing permits and approvals 351 necessary for use and operation of the Approved Transfer Facility under the terms of this 352 Agreement. Upon request, Contractor shall provide copies of facility permits and/or notices of 353 violations (obtained from its Transfer Facility Subcontractor if necessary) to the City Contract 354 Manager. If Contractor is unable to use or operate the Approved Transfer Facility, then Contractor 355 shall be responsible for making other Transportation arrangements. In such event, Contractor 356 shall not be compensated for any additional costs, unless Contractor’s inability to use or operate 357 the Approved Transfer Facility was due to a Force Majeure Event, in which case Contractor shall 358 be entitled to recover any additional costs as an “other adjustment” in the next annual Rate 359 adjustment. If Contractor plans to change its Transfer method, Contractor shall obtain written 360 approval from the City prior to making the change.
361 C. Processing.
362 1. General. Contractor shall Transport and deliver all Recyclable Materials Collected in the City 363 to the Approved Recyclable Materials Processing Facility or the Designated Recyclable 364 Materials Processing Facility. All tipping fees and other costs associated with Transporting to 365 and Processing of such Recyclable Materials at the Approved Recyclable Materials Processing 366 Facility or the Designated Recyclable Materials Processing Facility and Disposing of the 367 Residue as required in Section 4.1.H below shall be paid by Contractor. 368 The Approved Recyclable Materials Processing Facility or the Designated Recyclable Materials 369 Processing Facility shall Process Recyclable Paper in a manner deemed not to constitute 370 landfill Disposal pursuant to 14 CCR Section 18983.1(a), which states that landfill Disposal 371 includes final disposition of Organic Waste (including Recyclable Paper) at a landfill or use of 372 Organic Waste (including Recyclable Paper) as Alternative Daily Cover (ADC) or Alternative 373 Intermediate Cover (AIC).
374 Contractor shall observe and comply with all regulations in effect at the Approved Recyclable 375 Materials Processing Facility or the Designated Recyclable Materials Processing Facility, and 376 cooperate with and take direction from the operator thereof with respect to delivery of 377 Recyclable Materials. In the event that the regulations, requirements, or policies of the 378 Approved Recyclable Materials Processing Facility or the Designated Recyclable Materials 379 Processing Facility are in conflict with the requirements of this Agreement, the requirements 380 of this Agreement shall supersede the regulations in effect at the facility with respect to 381 Contractor’s obligations to perform under this Agreement. 382 Contractor guarantees sufficient capacity at the Approved Recyclable Materials Processing 383 Facility or the Designated Recyclable Materials Processing Facility to Process all Recyclable 384 Materials Collected by Contractor under this Agreement throughout the Term of the 385 Agreement.
386 2. Contamination. Contractor shall actively work with the Approved Recyclable Materials 387 Processing Facility and/or the Designated Recyclable Materials Processing Facility, as 388 applicable, throughout the Term of this Agreement to ensure that contamination of the 389 Recyclable Materials Collected under this Agreement and delivered to the Processing Facility 134
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December 3, 2020 -11- City of Cupertino/Recology Franchise Agreement 390 remains below the limits established by Applicable Law including, without limitation, 391 applicable regulations or regulatory guidance issued pursuant to SB 1383. 392 3. Permits. Contractor shall keep or cause its Subcontractor to keep all existing permits and 393 approvals necessary for use and operation of the Approved Recyclable Materials Processing 394 Facility under the terms of this Agreement. Upon request, Contractor shall provide copies of 395 facility permits and/or notices of violations (obtained from its Processing Facility 396 Subcontractor, if necessary) to the City Contract Manager. 397 D. Incompatible Materials.
398 If and to the extent 14 CCR Section 17409.5.8 (Incompatible Materials Limit in Recovered Organic 399 Waste) applies to the Approved Recyclable Materials Processing Facility or the Approved Transfer 400 Facility, Contractor shall ensure that such facilities comply with such code section. Such 401 compliance may be achieved via the alternative pathway set forth in Section 17409.5.9. 402 (Alternatives to Measurement Protocols) or any other means permitted by law. Whether each 403 such facility complies with 14 CCR Section 17409.5.8 shall be determined by the facility’s EA (as 404 defined in 14 CCR Section 17402(a)(5)). For convenience, and without limiting the foregoing, the 405 text of 14 CCR Section 17409.5.8 as it exists on the date hereof is as follows:
406 “Section 17409.5.8. Incompatible Materials Limit in Recovered Organic Waste. 407 (a) A transfer/processing facility or operation shall only send offsite that organic waste recovered 408 after processing from the source separated organic waste stream and from the mixed 409 waste organic collection stream that meets the following requirements:
410 (1) On and after January 1, 2022 with no more than 20 percent of incompatible material 411 by weight; and
412 (2) On and after January 1, 2024 with no more than 10 percent of incompatible material 413 by weight.
414 (b) The operator shall measure compliance with Subdivision (a) by using the following protocol:
415 (1) Use the same samples taken to comply with Sections 17409.5.2 and 17409.5.4 and the 416 same total weight of each of those samples.
417 (2) For each sample, remove any incompatible material and determine the weight of the 418 incompatibles in that sample.
419 (3) Then determine a ratio of the incompatible material for each type of organic waste in 420 the mixed waste organic collection stream and the source separated organic 421 waste collection waste stream by dividing the total from Subdivision (b)(2) by the 422 total from Subdivision (b)(1).
423 (4) Multiply the ratio determined pursuant to Subdivision (b)(3) for each type of organic 424 waste by the total weight of all of the same type of organic waste separated after 425 processing and destined for end-use, recovery or further processing. 135
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December 3, 2020 -12- City of Cupertino/Recology Franchise Agreement 426 (5) Determine the total weight of incompatible materials separated from the mixed waste 427 organic collection stream and from the source separated organic waste stream 428 by adding the sum of all the weights calculated pursuant to Subdivision (b)(4). 429 (6) Determine the ratio of incompatible materials by taking the total weight of 430 incompatible materials determined pursuant to Subdivision (b)(5) and dividing by 431 the sum of the outgoing weights of the materials recovered from the mixed waste 432 organic collection stream and from the source separated organic waste stream. 433 (7) Determine the percentage of incompatible materials by multiplying the ratio 434 determined pursuant to Subdivision (b)(6) by 100.
435 (c) The recovered organic waste stream shall not be subject to Section 17409.5.8(a) if the 436 recovered organic waste is sent to one or more of the following types of facilities that will 437 further process that waste:
438 (1) A transfer/processing facility or operation that complies with Section 17409.5.8(a). 439 (2) A compostable material handling facility or operation that, pursuant to Section 440 17867(a)(16), demonstrates that the percentage of organic waste in the materials 441 sent to disposal is:
442 (A) On and after January 1, 2022, less than 20 percent. 443 (B) On and after January 1, 2024, less than 10 percent. 444 (3) An in-vessel digestion facility or operation that, pursuant to Section 17896.44.1, 445 demonstrates that the percentage of organic waste in the materials sent to 446 disposal is:
447 (A) On and after January 1, 2022, less than 20 percent. 448 (B) On and after January 1, 2024, less than 10 percent. 449 (4) An activity that meets the definition of a recycling center as described in Section 450 17402.5(d).
451 (d) The operator shall conduct a measurement in the presence of the EA when requested. 452 (e) If it is determined by the EA that the measurements do not accurately reflect the records, the 453 EA may require the operator to increase the frequency of measurements, revise the 454 measurement protocol, or both to improve accuracy.
455 (f) For the purposes of this section ‘disposal’ has the same meaning as ‘Activities that 6 constitute 456 landfill disposal’ as defined in Section 18982.”
457 E. Alternative Processing Facility. If Contractor is unable to Process Recyclable Materials at the 458 Approved Recyclable Materials Processing Facility or the Designated Recyclable Materials 459 Processing Facility due to an emergency or sudden and unforeseen closure of the Processing 136
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December 3, 2020 -13- City of Cupertino/Recology Franchise Agreement 460 Facility as provided in Section 10.7. Contractor may use an alternative Processing Facility provided 461 that Contractor provides written notice to the City Contract Manager within forty-eight (48) hours 462 after Contractor becomes aware of such emergency or sudden and unforeseen closure. Pursuant 463 to Exhibit D, the notification shall include the following: (i) name of the applicable Approved 464 Recyclable Materials Processing Facility or Designated Recyclable Materials Processing Facility; (ii) 465 the Recycling and Disposal Reporting System Number of the Approved Recyclable Materials 466 Processing Facility or Designated Recyclable Materials Processing Facility; (iii) the date the 467 Approved Recyclable Materials Processing Facility or Designated Recyclable Materials Processing 468 Facility became unable to Process Recyclable Materials; (iv) description of the emergency or 469 unforeseen closure; (v) the period of time Contractor anticipates the temporary inability of the 470 Approved Recyclable Materials Processing Facility or Designated Recyclable Materials Processing 471 Facility to Process Recyclable Materials; and, (vi) Contractor’s proposed action plan to deliver 472 materials to an alternative Processing Facility for Processing or Contractor’s request for waiver to 473 Transport the Recyclable Materials to the Designated Disposal Facility for Disposal on a temporary 474 basis.
475 Upon receipt of notification by Contractor, the City shall evaluate the notification and determine 476 if the City shall require Contractor to use an alternative Processing Facility or allow Contractor to 477 Transport the Recyclable Materials to the Designated Disposal Facility for Disposal on a temporary 478 basis for a time period specified by the City. The City shall notify Contractor of its requirement 479 that Contractor use an alternative Processing Facility for Processing or use the Designated 480 Disposal Facility for Disposal, and the period of time that the City will allow the Recyclable 481 Materials to be redirected. Pursuant to 14 CCR Section 18984.13, the approved Disposal period 482 shall not exceed ninety (90) days after the date the Approved/Designated Processing Facility’s 483 emergency or unforeseen closure commenced, without prior receipt of written permission from 484 the City Contract Manager.
485 If the use of the alternative Processing Facility is anticipated to or actually does exceed thirty (30) 486 calendar days in a consecutive twelve (12) month period, the use of such alternative Processing 487 Facility shall be subject to approval by the City Contract Manager. The City Contract Manager may, 488 in their sole discretion, approve, conditionally approve, temporarily approve, or disapprove of the 489 use of the proposed alternative Processing Facility. In the event that the City disapproves the use 490 of the proposed alternative Processing Facility, the Parties shall meet and confer to determine an 491 acceptable alternative Processing Facility.
492 As appropriate for the type of Recyclable Materials to be delivered to the alternative Processing 493 Facility, the alternative Recyclable Materials Processing Facility shall meet the applicable facility 494 standards in this Agreement, and the Recyclable Materials shall thereafter be sent to: (i) an 495 allowable facility, operation, or used for an activity specified by pursuant to 14 CCR Section 496 18983.1(b) and not subsequently sent to landfill Disposal; (ii) a Transfer facility; or, (iii) a Disposal 497 Facility.
498 The performance of Recyclable Materials commodity markets shall not be considered an 499 acceptable basis for the need to use an alternative Processing Facility nor shall it serve as the basis 500 for any adjustment in Contractor’s Compensation under this Agreement, other than as specifically 501 contemplated in Exhibit E to this Agreement. In the event that a change in the Processing Facility 502 results in increased costs, the City may identify and direct Contractor to an alternative Processing 503 Facility that results in less cost than Contractor-identified alternative. 137
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December 3, 2020 -14- City of Cupertino/Recology Franchise Agreement 504 Contractor shall be entitled to recover any actual, additional, and demonstrable direct costs (not 505 including overhead or profit) incurred to use an alternative Processing Facility under the 506 circumstances described in this section, as an “other adjustment” in the next annual Rate 507 adjustment.
508 Except for the emergency conditions described in this section, Contractor shall not change its 509 selection of the Approved Recyclable Materials Processing Facility without the City’s written 510 approval, which may be withheld in the City’s sole discretion. If Contractor proposes to use a 511 Recyclable Materials Processing Facility that is different than the Approved Recyclable Materials 512 Processing Facility, it shall request written approval from the City Contract Manager, which it may 513 grant at its discretion, at least sixty (60) calendar days prior to proposed use of the Processing 514 Facility and obtain City’s written approval no later than ten (10) calendar days prior to use of the 515 Processing Facility.
516 F. Separate Handling Requirements. In accordance with 14 CCR Section 17409.5.6, Contractor shall 517 keep Recyclable Materials separate from other Discarded Material streams and shall Process the 518 materials separately from other Discarded Material streams. 519 G. Marketing. Contractor shall be responsible for ensuring that the Approved Recyclable Materials 520 Processing Facility and/or Designated Recyclable Materials Processing Facility markets Recyclable 521 Materials Collected under this Agreement in a manner that is fully compliant with the 522 requirements of the Agreement, and shall include all such provisions in the Processing Facility 523 subcontract. Contractor’s marketing strategy shall promote the highest and best use of materials 524 presented in the waste management hierarchy established by AB 939. Where practical, the 525 marketing strategy should include use of local, regional, and domestic markets for Recyclable 526 Materials.
527 H. Residue Disposal. Residue from the Processing of Recyclable Materials Collected under this 528 Agreement at the Approved Recyclable Materials Processing Facility, which cannot be marketed, 529 shall be Disposed of by Contractor, or the Processing Facility Subcontractor, or used as ADC or 530 AIC. Residue delivered for Disposal shall not include any Excluded Waste. 531 4.2 ORGANIC MATERIALS
532 A. Collection. Contractor shall provide Organic Materials Collection services as described in Exhibit 533 B, for direct Transport to the Approved Transfer Facility. 534 B. Transfer. At the Approved Transfer Facility, Contractor shall unload Organic Materials from 535 Collection vehicles and load Organic Materials into large-capacity vehicles and Transport such 536 material to the Approved Organic Materials Processing Facility. Any Processing of Organic 537 Materials at the Approved Transfer Facility shall be subject to the applicable Processing 538 requirements in Section 4.2.C.
539 Contractor shall keep or cause its Subcontractor to keep all existing permits and approvals 540 necessary for use and operation of the Approved Transfer Facility(ies) under the terms of this 541 Agreement. Upon request, Contractor shall provide copies of facility permits and/or notices of 542 violations (obtained from its Transfer Facility Subcontractor if necessary) to the City Contract 543 Manager. If Contractor is unable to use or operate the Approved Transfer Facility, then Contractor 544 shall be responsible for making other Transportation arrangements. In such event, Contractor 138
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December 3, 2020 -15- City of Cupertino/Recology Franchise Agreement 545 shall not be compensated for any additional costs, unless Contractor’s inability to use or operate 546 the Approved Transfer Facility was beyond Contractor’s control as provided in Section 10.7, in 547 which case Contractor shall be entitled to recover any additional costs as an “other adjustment” 548 in the next annual Rate adjustment. If Contractor plans to change its Transfer method, Contractor 549 shall obtain written approval from the City prior to making the change. 550 C. Processing.
551 1. General. Contractor shall Transport and deliver all Organic Materials Collected in the City to 552 the Approved Organic Materials Processing Facility. All tipping fees and other costs associated 553 with Transporting such Organic Materials to the Approved Organic Materials Processing 554 Facility and Disposing of the Residue as required in Section 4.2.H below shall be paid by 555 Contractor.
556 Subject to the limitations of Section 4.2.H (Residue Disposal), the Approved Organic Materials 557 Processing Facility shall Process Organic Materials in a manner deemed not to constitute 558 landfill Disposal pursuant to 14 CCR Section 18983.1(a), which states that landfill Disposal 559 includes final disposition of Organic Waste (including Organic Materials) at a landfill or use of 560 Organic Waste (including Organic Materials) as Alternative Daily Cover (ADC) or Alternative 561 Intermediate Cover (AIC).
562 Contractor shall observe and comply with all regulations in effect at the Approved Organic 563 Materials Processing Facility and cooperate with and take direction from the operator thereof 564 with respect to delivery of Organic Materials. In the event that the regulations, requirements, 565 or policies of the Approved Organic Materials Processing Facility are in conflict with the 566 requirements of this Agreement, the requirements of this Agreement shall supersede the 567 regulations in effect at the facility with respect to Contractor’s obligations to perform under 568 this Agreement.
569 Contractor guarantees sufficient capacity at the Approved Organic Materials Processing 570 Facility to Process all Organic Materials Collected by Contractor under this Agreement 571 throughout the Term of the Agreement.
572 2. Contamination. Contractor shall actively work with the Approved Organic Materials 573 Processing Facility throughout the Term of this Agreement to ensure that contamination of 574 the Organic Materials Collected under this Agreement and delivered to the Processing Facility 575 remains below the limits established by Applicable Law including, without limitation, 576 applicable regulations or regulatory guidance issued pursuant to SB 1383. 577 3. Permits. Contractor shall keep or cause its Subcontractor to keep all existing permits and 578 approvals necessary for use and operation of the Approved Organic Materials Processing 579 Facility under the terms of this Agreement. Upon request, Contractor shall provide copies of 580 facility permits and/or notices of violations (obtained from its Processing Facility 581 Subcontractor if necessary) to the City Contract Manager. 582 4. Compostable Plastics. Contractor and the City Contract Manager shall meet annually to 583 discuss the acceptance and Processing of Compostable Plastics. For any period of time during 584 the Term in which Contractor accepts and Processes Compostable Plastics collected through 585 franchises held by Recology or its Affiliates in the City and County of San Francisco, San Mateo 139
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December 3, 2020 -16- City of Cupertino/Recology Franchise Agreement 586 County, or Santa Clara County, the City reserves the rights to require Contractor, at no 587 additional Contractor Compensation, to Collect and Process Compostable Plastic bags used 588 by Customers to contain Organic Materials prior to placement in the Organic Materials 589 Container for Collection. In that event, Contractor shall Collect and Transport such materials 590 for Processing at the Approved Organic Materials Processing Facility, which shall liberate and 591 Process Organic Materials contained in Compostable Plastic bags and which shall be 592 prohibited from Disposing Organic Materials contained in Compostable Plastic bags. Should 593 Contractor cease to accept Compostable Plastics from other franchisees in the City and 594 County of San Francisco, San Mateo County, or Santa Clara County, and is no longer able to 595 accept Compostable Plastics from City Generators, Contractor shall provide the City Contract 596 Manager with at least ninety (90) days’ notice.
597 Pursuant to 14 CCR Sections 18984.1, Contractor shall submit to the City annually the written 598 notification contemplated by 14 CCR Sections 18984.1(a)(1)(A) and 18984.2(a)(1)(C) of 599 whether the Approved Organic Materials Processing Facility has and will continue to have the 600 capabilities to Process and recover Compostable Plastic (including Compostable Plastic bags) 601 when it Processes and recovers Organic Materials.
602 D. Incompatible Materials.
603 If and to the extent 14 CCR Section 17409.5.8 (Incompatible Materials Limit in Recovered Organic 604 Waste) applies to the Approved Organic Materials Processing Facility or the Approved Transfer 605 Facility, Contractor shall ensure that such facilities comply with such code section. Such 606 compliance may be achieved via the alternative pathway set forth in Section 17409.5.9. 607 (Alternatives to Measurement Protocols) or any other means permitted by law. Whether each 608 such facility complies with 14 CCR Section 17409.5.8 shall be determined by the facility’s EA (as 609 defined in 14 CCR Section 17402(a)(5)). For convenience, and without limiting the foregoing, the 610 text of 14 CCR Section 17409.5.8 as it exists on the date hereof is as set forth in Section 4.1.D 611 above.
612 E. Alternative Processing Facility. If Contractor is unable to Process Organic Materials at the 613 Approved Organic Materials Processing Facility due to an emergency or sudden and unforeseen 614 closure of the Processing Facility that is outside the control of Contractor and as provided in 615 Section 10.7, Contractor may use an alternative Processing Facility provided that Contractor 616 provides written notice to the City Contract Manager within forty-eight (48) hours after 617 Contractor becomes aware of such emergency or sudden and unforeseen closure. Pursuant to 618 Exhibit D, the notification shall include the following: (i) name of the applicable Approved Organic 619 Materials Processing Facility; (ii) the Recycling and Disposal Reporting System Number of the 620 Approved Organic Materials Processing Facility; (iii) the date the Approved Organic Materials 621 Processing Facility became unable to Process Organic Materials; (iv) description of the emergency 622 or unforeseen closure; (v) the period of time Contractor anticipates the temporary inability of the 623 Approved Organic Materials Processing Facility to Process Organic Materials; and (vi) Contractor’s 624 proposed action plan to deliver materials to an alternative Processing Facility for Processing or 625 Contractor’s request for waiver to Transport the Organic Materials to the Designated Disposal 626 Facility for Disposal on a temporary basis.
627 Upon receipt of notification by Contractor, the City shall evaluate the notification and determine 628 if the City shall require Contractor to use an alternative Processing Facility or allow Contractor to 140
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December 3, 2020 -17- City of Cupertino/Recology Franchise Agreement 629 Transport the Organic Materials to the Designated Disposal Facility for Disposal on a temporary 630 basis for a time period specified by the City. The City shall notify Contractor of its requirement 631 that Contractor use an alternative Processing Facility for Processing or use the Designated 632 Disposal Facility for Disposal, and the period of time that the City will allow the Organic Materials 633 to be redirected. Pursuant to 14 CCR Section 18984.13, the approved Disposal period shall not 634 exceed ninety (90) days after the date the Approved Organic Materials Processing Facility’s 635 emergency or unforeseen closure commenced, without prior receipt of written permission from 636 the City Contract Manager.
637 If the use of the proposed alternative Processing Facility is anticipated to, or actually does, exceed 638 thirty (30) days in a consecutive twelve (12) month period, the use of such alternative Processing 639 Facility shall be subject to approval by the City Contract Manager. The City Contract Manager may, 640 in their sole discretion, approve, conditionally approve, temporarily approve, or disapprove of the 641 use of the proposed alternative Processing Facility. In the event that the City disapproves the use 642 of the proposed alternative Processing Facility, the Parties shall meet and confer to determine an 643 acceptable alternative Processing Facility.
644 As appropriate for the type of Organic Materials to be delivered to the alternative Organic 645 Materials Processing Facility, the alternative Organic Materials Processing Facility shall meet the 646 applicable facility standards in this Agreement, and the Organic Materials shall thereafter be sent 647 to: (i) an allowable facility, operation, or used for an activity specified by pursuant to 14 CCR 648 Section 18983.1(b) and not subsequently sent to landfill Disposal; (ii) a Transfer Facility; or, (iii) a 649 Disposal Facility.
650 In the event that a change in the Processing Facility results in increased costs, the City may identify 651 and direct Contractor to an alternative Processing Facility that results in less cost than Contractor652 identified alternative. 653 Contractor shall be entitled to recover any actual, additional, and demonstrable direct costs (not 654 including overhead or profit) incurred to use an alternative Processing Facility under the 655 circumstances described in this section, as an “other adjustment” in the next annual Rate 656 adjustment.
657 Except for the emergency conditions described in this section, Contractor shall not change its 658 selection of the Approved Organic Materials Processing Facility without the City’s written 659 approval, which may be withheld in the City’s sole discretion. If Contractor proposes to use an 660 Organic Materials Processing Facility that is different than the Approved Organic Materials 661 Processing Facility, it shall request written approval from the City Contract Manager, which it may 662 grant at its discretion, at least sixty (60) calendar days prior to use of the Processing Facility and 663 obtain City’s written approval no later than ten (10) calendar days prior to use of the Processing 664 Facility.
665 F. Separate Handling Requirements. In accordance with 14 CCR Section 17409.5.6, Contractor shall 666 keep Organic Materials separate from other Discarded Material streams and shall Process the 667 materials separately from other Discarded Material streams. 668 G. Marketing. Contractor shall be responsible for ensuring that the Approved Organic Materials 669 Processing Facility markets Compost, Mulch, or other products produced from Organic Materials 670 Collected under this Agreement, in a manner that is fully compliant with the requirements of this 141
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December 3, 2020 -18- City of Cupertino/Recology Franchise Agreement 671 Agreement. Contractor’s marketing strategy shall promote the highest and best use of materials 672 presented in the waste management hierarchy established by AB 939. Where practical, the 673 marketing strategy should include use of local markets for such products. 674 H. Residue Disposal. Residue from the Processing of Organic Materials Collected under this 675 Agreement at the Approved Organic Materials Processing Facility, which cannot be marketed, 676 shall be Disposed of by Contractor, or the Processing Facility Subcontractor, or used as ADC or AIC 677 (in which case such Residue shall be considered as Disposed). Residue delivered for Disposal shall 678 not include any Excluded Waste.
679 4.3 SOLID WASTE
680 A. Collection. Contractor shall provide Solid Waste Collection services, as described in Exhibit B, for 681 direct Transport to the Designated Disposal Facility. 682 Contractor acknowledges that the City is committed to Diverting materials from Disposal through 683 the implementation of source reduction, Reuse, Recycling, Composting, and other programs, and 684 that the City may implement new programs, with or without the involvement of Contractor, that 685 may impact the overall quantity or composition of Solid Waste to be Collected by Contractor. 686 Contractor shall not be entitled to any compensation or other relief resulting from a change in 687 Solid Waste volumes or Tonnage or from a change in the composition of Solid Waste. 688 B. Transfer. In the event the City directs Contractor to use a Designated Disposal Facility as provided 689 in Section 3.2, the Parties will meet and confer, and the City will determine if Transfer will be less 690 expensive than direct Transport to the Designated Disposal Facility. The City will base its 691 determination on a comparison of the incremental added cost of direct Transport above the 692 agreed distance threshold as described in Exhibit G2, to the cost of Transfer including the Transfer 693 tip fee and hourly Transport costs provided in Exhibit G2, as escalated. If the City requires 694 Contractor provide for Transfer, Contractor shall Transport Solid Waste from the Route to the 695 Approved Transfer Facility, at which Contractor shall unload Solid Waste from Collection vehicles 696 and load Solid Waste into large-capacity vehicles and Transport such material to the Designated 697 Disposal Facility.
698 Contractor shall keep or cause its Subcontractor to keep all existing permits and approvals 699 necessary for use and operation of the Approved Transfer Facility under the terms of this 700 Agreement. Upon request, Contractor shall provide copies of facility permits and/or notices of 701 violations (obtained from its Transfer Facility Subcontractor if necessary) to the City Contract 702 Manager. If Contractor is unable to use or operate the Approved Transfer Facility, then Contractor 703 shall be responsible for making other Transportation arrangements. In such event, Contractor 704 shall not be compensated for any additional costs, unless Contractor’s inability to use or operate 705 the Approved Transfer Facility was due to a Force Majeure Event, in which case Contractor shall 706 be entitled to recover any additional costs as an “other adjustment” in the next annual Rate 707 adjustment. If Contractor plans to change its Transfer method, Contractor shall obtain written 708 approval from the City prior to making the change.
709 C. Disposal. Contractor shall Transport and deliver all Solid Waste Collected in the City to the 710 Designated Disposal Facility. All costs associated with Transporting to and Disposing of such Solid 711 Waste at the Designated Disposal Facility including payment of any gate fees charged at the 142
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December 3, 2020 -19- City of Cupertino/Recology Franchise Agreement 712 Designated Disposal Facility shall be paid by Contractor. Contractor shall observe and comply with 713 all regulations in effect at the Designated Disposal Facility and cooperate with and take direction 714 from the operator thereof with respect to delivery of Solid Waste. In the event that the 715 regulations, requirements, or policies of the Designated Disposal Facility are in conflict with the 716 requirements of this Agreement, the requirements of this Agreement shall supersede the 717 regulations in effect at the facility with respect to Contractor’s obligations to perform under this 718 Agreement.
719 4.4 ON-CALL, BULKY ITEM, BIN-BY-THE-DAY, AND CITY-WIDE RECYCLING 720 COLLECTION EVENTS
721 Contractor shall provide On-Call, Bulky Item, Bin-by-the-Day, and City-wide Recycling event Collection 722 services as described in Exhibit B and direct Transport to the Approved Processing Facility. City-wide 723 Recycling events (Environmental Days) Collection services shall be provided four (4) times per year, as 724 approved by the City Contract Manager, pursuant to Exhibit B4, Section 3. Contractor shall Transport all 725 On-Call materials, Bulky Items, Bin-by-the-Day material, and City-wide Recycling event materials Collected 726 under this Agreement to the Approved Processing Facility. Except as otherwise specified Contractor shall 727 pay all costs associated with Transporting and Processing On-Call materials, Bulky Items, City-wide 728 Recycling event materials, Environmental Days materials, and Bin-by-the-Day material. Contractor shall 729 observe and comply with all regulations in effect at the Approved Processing Facility and cooperate with 730 and take direction from the operator thereof with respect to delivery of On-Call materials, Bulky Items, 731 Bin-by-the-Day material, and/or City-wide Recycling event material. Notwithstanding any other provision 732 of this Agreement, Contractor shall not be required to provide more than thirty-five (35) On-Call or Bulky 733 Item Collections per Working Day. Subject to that constraint, Contractor shall schedule On-Call and Bulky 734 Item Collections at the earliest Working Day acceptable to the Customer. On-Call and Bulky Item 735 Collections may occur on any Working Day.
736 4.5 C&D COLLECTION
737 Contractor shall provide C&D Collection services as described in Exhibit B for direct Transport to the 738 Designated C&D Processing Facility.
739 A. C&D Recycling Requirements. Contractor shall comply with the following requirements:
740 1. Comply with the City’s Construction and Demolition Debris ordinances and regulations. 741 2. Educate C&D Customers on the requirement to Source Separate Organic Materials generated 742 during construction and demolition projects and have them Collected separately from other 743 C&D and Transported for Processing to an Approved Facility. 744 3. Cause any C&D Processor that is a Subcontractor (including Affiliates) of Contractor to comply 745 with CalRecycle and California Building Standards Code including Part 11 California Green 746 Building Standards Code (CALGreen) requirements for the Processing and Recycling of C&D 747 including Organic Waste.
748 4. Provide in-person site visits at large C&D Collection Sites within the City to train staff on 749 proper sorting for C&D Containers to assist them in achieving Diversion targets as required by 750 California Building Standards Code Part 11 California Green Building Standards Code 751 (CALGreen) requirements.
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December 3, 2020 -20- City of Cupertino/Recology Franchise Agreement 752 B. Transfer. In the event the City directs Contractor to use a Designated C&D Processing Facility as 753 provided in Section 3.2, the Parties will meet and confer, and the City will determine if Transfer 754 will be less expensive than direct Transport to the Designated C&D Processing Facility. The City 755 will base its determination on a comparison of the incremental added cost of direct Transport 756 above the agreed distance threshold as described in Exhibit G2, to the cost of Transfer including 757 the Transfer tip fee and hourly Transport costs provided in Exhibit G2, as escalated. If the City 758 requires Contractor provide for Transfer, Contractor shall Transport C&D material from the Route 759 to the Approved Transfer Facility, at which Contractor shall unload C&D material from Collection 760 vehicles and load C&D material into large-capacity vehicles and Transport such material to the 761 Designated C&D Processing Facility.
762 Contractor shall keep or cause its Subcontractor to keep all existing permits and approvals 763 necessary for use and operation of the Approved Transfer Facility under the terms of this 764 Agreement. Upon request, Contractor shall provide copies of facility permits and/or notices of 765 violations (obtained from its Transfer Facility Subcontractor if necessary) to the City Contract 766 Manager. If Contractor is unable to use or operate the Approved Transfer Facility, then Contractor 767 shall be responsible for making other Transportation arrangements. In such event, Contractor 768 shall not be compensated for any additional costs, unless Contractor’s inability to use or operate 769 the Approved Transfer Facility was due to a Force Majeure Event, in which case Contractor shall 770 be entitled to recover any additional costs as an “other adjustment” in the next annual Rate 771 adjustment. If Contractor plans to change its Transfer method, Contractor shall obtain written 772 approval from the City prior to making the change.
773 4.6 SPECIAL EVENTS
774 Contractor shall provide Recyclable Materials, Organic Materials, and Solid Waste Collection services for 775 up to eight (8) one-day City-sponsored or hosted special events, examples of which are identified in Exhibit 776 B5, per Rate Period at no cost to the event or the City. The City Contract Manager shall provide Contractor 777 thirty (30) calendar days' advanced notice of the date, time, and location of each of the eight (8) City778 sponsored or hosted special events. The City Contract Manager or other parties may, with thirty (30) 779 calendar days' advanced notice, request Contractor provide services at additional events, in which case 780 Contractor may charge for such service consistent with the applicable Rate(s). Contractor shall provide 781 the special event services to additional City-sponsored special events upon thirty (30) calendar days’ 782 advance written request by the City Contract Manager to Contractor, in accordance with Exhibit B5. 783 Special event services include:
784 A. Event Collection Stations. Contractor shall provide and set-up event Collection stations for 785 Collection of Recyclable Materials, Organic Materials, and Solid Waste at City-sponsored special 786 events. Each event Collection station shall include a separate Container for each of Recyclable 787 Materials, Organic Materials, and Solid Waste, as appropriate. Contractor shall provide a sufficient 788 number of event Collection stations of sufficient capacity to meet the needs of the event as 789 determined by Contractor in cooperation with the event organizer. Contractor shall provide 790 liners/bags for the Containers at the Collection stations if needed and shall line the Containers as 791 a part of the station set-up. Collection stations shall include adequate signs and labeling approved 792 by the City.
793 B. Collection Station Monitors. Upon request, Contractor shall provide the number of Collection 794 station monitors who shall be present for the duration of each special event that are necessary to 144
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December 3, 2020 -21- City of Cupertino/Recology Franchise Agreement 795 ensure consistent provision of high quality service. Contractor shall require Collection station 796 monitors to monitor event Collection stations and educate event attendees and vendors about 797 what materials are acceptable in each Collection station Container. The station monitors shall be 798 responsible for removing full bags, re-lining event Containers, and Transporting materials 799 contained in event Collection stations to Drop Boxes or trash enclosures, which will subsequently 800 be Collected by Contractor. Station monitors will also sort materials both at the Collection 801 stations and at the Drop Boxes or trash enclosures to ensure that they are properly separated. 802 C. Containers. Contractor shall provide Containers for the aggregation of material removed from 803 event Collection stations during the course of the event, which may include Drop Boxes. 804 Contractor shall provide Containers in sufficient number of appropriate type(s) for the needs of 805 the event as determined by Contractor in cooperation with the event organizer. Contractor shall 806 service Containers, as agreed-upon with the event organizer, and deliver Collected materials to 807 the appropriate Approved Facility for Processing and/or Disposal. 808 D. Public Education Booth. Upon request of either the City Contract Manager or the event organizer, 809 Contractor shall staff a booth or exhibit at the event for the purpose of educating the public about 810 the services and programs provided by Contractor under this Agreement and the benefits of and 811 opportunities for source reduction, Reuse, Recycling, and Composting. 812 E. Reporting. Within fourteen (14) calendar days after the event, Contractor shall submit a report 813 to the City Contract Manager and event organizer. The report should include, at a minimum: the 814 number of event Collection stations deployed at the event, the number of Collection station 815 monitors, the Tonnage of each material type (i.e., Recyclable Materials, Organic Materials, and 816 Solid Waste) or an estimate based on observed and documented volume Collected, and a 817 description of the public education provided at the event. 818 F. Edible Food Recovery. The City may implement Edible Food Recovery efforts at special events. In 819 the event that such efforts are initiated at an event being serviced by Contractor, Contractor shall 820 support the recovery of Edible Food from special events in accordance with Section 4.15, or 821 otherwise assist the City as reasonably requested.
822 Contractor may, at its sole discretion and expense, coordinate with local youth, community, or charitable 823 organizations to provide some or all of the required services. Regardless of Contractor’s use of such an 824 organization, Contractor shall be responsible for ensuring that service is provided to the Customer in a 825 professional and timely manner consistent with the terms of this Agreement. 826 For special events that are not identified in Exhibit B5 or otherwise hosted or sponsored by the City, and 827 are that are otherwise not subject to the requirements of the Agreement, Contractor shall provide the 828 above-described special event services at the request of the event organizer and may negotiate the 829 charges for such services with the event organizer based on the specific needs of the event. 830 4.7 PUBLIC EDUCATION AND OUTREACH
831 In general, Contractor shall provide public education and outreach efforts as described in Exhibit C. 832 A. Program Objectives. The City intends to be responsible for overseeing the design, production, 833 distribution, and implementation of a public education and outreach program. Contractor shall 834 be responsible for the printing and distribution of City-approved materials under this program in 145
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December 3, 2020 -22- City of Cupertino/Recology Franchise Agreement 835 accordance with this Agreement and pay all costs associated therewith to the extent specified in 836 this Agreement. The City’s public education and outreach strategy shall focus on improving 837 Generator understanding of the benefits of and opportunities for source reduction, Reuse, 838 Recycling, and Composting and landfill Disposal reduction and supporting compliance with 839 Applicable Laws, including, but not limited to AB 939, AB 341, AB 1826, and SB 1383. 840 In general, the City-provided public education and outreach aims to: (i) inform Generators about 841 the services that are provided under this Agreement with specific focus on describing the methods 842 and benefits of source reduction, Reuse, Recycling, and Composting; (ii) instruct Generators on 843 the proper method for placing materials in Containers for Collection and setting Containers out 844 for Collection, with specific focus on minimizing contamination of Recyclable Materials and 845 Organic Materials; (iii) clearly define Excluded Waste and educate Generators about the hazards 846 of such materials and their opportunities for proper handling; (iv) discourage Generators from 847 buying products if the product and its packaging are not readily Reusable, Recyclable, or 848 Compostable; (v) inform Generators subject to Food Recovery requirements under SB 1383 of 849 their obligation to recover Edible Food and actions they can take to prevent the creation of Food 850 Waste; (vi) encourage the use of Compost and recovered Organic Waste products; and, (vii) 851 encourage Generators to purchase products/packaging made with Recycled content materials. 852 The cumulative intended effect of these efforts is to reduce generation of Solid Waste and, 853 ultimately, Disposal of Solid Waste by each Generator in the City, and Contractor agrees to 854 support and not undermine or interfere with such efforts. 855 B. Contractor Public Education Requirements and Support for City Educational Efforts. Contractor 856 shall print and distribute the City-approved educational materials and conduct outreach, as 857 indicated in Exhibit C. Upon City request, Contractor shall review and comment on the materials 858 within five (5) Working Days after receipt of such request. 859 Contractor acknowledges that it is part of a multi-party effort to operate and educate the public 860 about the regional integrated waste management system. Contractor shall cooperate and 861 coordinate with the City Contract Manager on public education activities to minimize duplicative, 862 inconsistent, or inappropriately timed education campaigns and to ensure that public education 863 and outreach to City residents and businesses is consistent in content, format, and delivery. City864 developed outreach materials may be provided to Contractor in non-English languages in 865 response to: shifting demographics within the City; updates to State requirements or Applicable 866 Law; or, any other reason deemed appropriate by the City. 867 Contractor shall obtain approval from the City Contract Manager on all Contractor-provided 868 advertising, promotional, or service-related materials used within the City before publication, 869 distribution, and/or release. The City Contract Manager, in their reasonable discretion, shall have 870 the right to deny the use of any materials or content or may request that Contractor include the 871 City identification and contact information on materials and Contractor’s approval of such 872 requests shall not be unreasonably withheld.
873 C. Contractor Website. Contractor shall maintain a website in accordance with Section 4.10.1.C. 874 D. Provision of Notices to Non-Compliant Entities. Contractor shall provide notices to non875 compliant entities under this Agreement, in accordance with Section 4.10.3. 146
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December 3, 2020 -23- City of Cupertino/Recology Franchise Agreement 876 E. Education Materials for Generators. Contractor shall provide all Generators with the City877 approved public education materials in accordance with Exhibit C (Public Education and Outreach 878 Requirements).
879 F. Education Materials for Commercial Business Owners and Tenants. Contractor shall provide 880 Commercial business owners and Multi-Family property Owners/managers with the City881 approved public education materials in accordance with Exhibit C (Public Education and Outreach 882 Requirements).
883 G. Education Requirements for Commercial Edible Food Generators. Contractor shall provide 884 Commercial Edible Food Generators with the City-approved educational materials in accordance 885 with Exhibit C (Public Education and Outreach Requirements). 886 H. Food Recovery Organizations and Food Recovery Services Online List. Contractor shall post on 887 its website an online list of Food Recovery Organizations and Food Recovery Services in 888 accordance with Exhibit C.
889 I. Support of City, County, State, and Federal Policy. City and Contractor shall meet and confer 890 regarding future extended producer responsibility (EPR) initiatives that are of interest to the City, 891 and shall cooperate in good faith to support such initiatives as mutually agreed. 892 J. Record Keeping and Reporting Requirements. Contractor shall comply with the public education 893 and outreach record keeping and reporting requirements of Article 6 and Exhibit D. 894 K. Waste Zero Specialist. Contractor shall provide the City with a Waste Zero Specialist in accordance 895 with Section 5.7.D and Exhibit C.
896 Sections 4.7.C-H and 4.7.J-K above are intended as cross-references only. In the event of any conflict 897 between the above Sections and the cross-referenced Sections, the latter shall govern. 898 4.8 TECHNICAL ASSISTANCE
899 A. General. Provision of Generator technical assistance is a key element in successful 900 implementation of SB 1383 compliance requirements. It is the City’s expectation that Contractor, 901 the Subcontractor(s) hired pursuant to Section 4.8.B (if any), and the City shall work in close 902 coordination to provide Generator technical assistance which includes in-person site visits and 903 assessments to each Commercial and Multi-Family account. Contractor staff shall not provide 904 Generator technical assistance without prior City training, or City-approved training by 905 Subcontractor(s) provided under Section 4.8.B, provided such training is provided at no cost to 906 Contractor, and initial training is provided before the Commencement Date. Technical assistance 907 training provided by City may include, but may not be limited to, review of SB 1383 requirements, 908 Generator requirements described under this Agreement, Municipal Code provisions, and best 909 practices for communication with Customers.
910 B. Coordination with City and Third Parties. By or before July 1, 2021, the City and Contractor shall 911 confer regarding use of a third party(ies) for provision of technical assistance in support of AB 912 1826 and SB 1383 compliance. The scope of work may also include assistance with SB 1383 913 compliance reviews as provided in Section 4.8.C, Route reviews, and additional activities or 914 assistance as needed.
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December 3, 2020 -24- City of Cupertino/Recology Franchise Agreement 915 C. SB 1383 Initial On-Site Compliance Reviews. Beginning on the Commencement Date, Contractor 916 shall conduct an SB 1383 assessment for each Multi-Family and Commercial Customer within the 917 City. Contractor shall follow the compliance review protocol provided in Section 4.14.B as well as 918 noticing procedures provided in Section 4.10.3. During Contractor’s interaction with Customer to 919 establish new service to each new Multi-Family and Commercial Customer, Contractor shall 920 conduct a compliance reviews for SB 1383. The assessment shall identify requirements for the 921 regulated entity to subscribe for Collection service under SB 1383 and assess the current level of 922 compliance with those requirements. Contractor shall identify opportunities for reduced Disposal 923 of Recyclable Materials and Organic Materials, including source reduction and Edible Food 924 Recovery.
925 D. SB 1383 Ongoing On-Site Compliance Reviews Beginning July 1, 2022, and annually thereafter, 926 Contractor shall confer with the City Contract Manager, and shall visit some or all non-waived 927 Generators identified by Contractor during the compliance review process described in Section 928 4.14.A.2 that appear required to enroll in Collection service pursuant to the City Municipal Code 929 but are not subscribed for Recyclable Materials and Organic Materials Collection Service. If the 930 Generator is not subscribed for both services, Contractor’s representative shall attempt to resolve 931 any logistical barriers to compliance with City’s Collection service requirements and assist the 932 Generators with selecting appropriate Service Levels for Discarded Materials. If Contractor is 933 unable to subscribe said Generators to Discarded Materials Collection Services, Contractor shall 934 submit to City monthly a list of said Generators in accordance with Exhibit D. Contractor shall 935 provide ongoing, on-site training for: (i) Commercial Generators’ staff regarding SB 1383 936 requirements, including, but not limited to: management, kitchen staff, service employees, and 937 janitorial staff; and, (ii) Multi-Family Customers’ staff, including but not limited to: the property 938 manager, janitorial staff, maintenance, and any other on-site staff members or contractors that 939 handle Discarded Materials.
940
941 Notwithstanding any other provision of this Agreement, Contractor shall not be deemed to have 942 breached any obligation to provide on-site or in-person services at Customer or Generator 943 Premises (e.g. compliance reviews, technical assistance, inspections), if the Customer or 944 Generator refuses or is non-responsive to Contractor’s attempts to provide the service, provided 945 that Contractor makes multiple attempts to contact the Customer or Generator (including in 946 writing and by either phone or email if available), documents such attempts and the Customer or 947 Generator’s response (if any), and makes such documentation available to City upon request. 948 4.9 BILLING
949 Contractor may bill all Customers and shall be solely responsible for collecting billings at Rates not to 950 exceed those set in accordance with Article 8. Billing shall be performed on the basis of services rendered 951 and this Agreement shall create no obligation on the part of any Person on the sole basis of the Ownership 952 of property. Individual contracts between Contractor and a Customer for services provided under this 953 Agreement shall be prohibited.
954 Contractor shall bill all Single-Family Customers quarterly for services provided. Contractor shall bill Single955 Family Customers not earlier than one (1) month nor later than two (2) months into each quarterly billing 956 cycle. Contractor shall bill all Commercial and Multi-Family Customers for scheduled and regularly 957 recurring services on a monthly basis in arrears. Contractor shall bill Commercial and Multi-Family 958 Customers for any on-call and/or non-recurring services no more frequently than monthly and may only 148
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December 3, 2020 -25- City of Cupertino/Recology Franchise Agreement 959 bill for services provided during the previous month. As the Rate Period begins in February, quarterly 960 billing shall be as follows (February-March-April, -May-June-July, August-September-October, November961 December-January). 962 Contractor shall make the low income Rate available to qualified Single-Family Customers. To qualify, the 963 Customer must: (a) live in a Single-Family Dwelling Unit that is billed separately (not combined with any 964 other Dwelling Unit); and (b) provide Contractor with a copy of the Customer’s PG&E bill (or other suitable 965 documentation of a type approved in advance by City) verifying that the Customer is enrolled in PG&E’s 966 CARE Program. Contractor may verify eligibility of Customers receiving the low income Rate annually, and 967 shall verify their eligibility at least once every five (5) years. Customers may also be required to promptly 968 notify Contractor if they are no longer enrolled in the CARE Program. If PG&E’s CARE program is 969 discontinued or materially changed, the Parties shall negotiate in good faith to determine substitute 970 eligibility criteria and related verification methods that reflect CARE program eligibility requirements 971 before the discontinuation or change.
972 Contractor shall develop and maintain a database of Customer contact information, which shall include 973 an email address for each Customer account, excluding email addresses for Customers who do not provide 974 or specifically decline to provide such information. Contractor shall maintain, and make such database 975 available upon request from the City Contract Manager, in accordance with Section 6.1. 976 Contractor shall bill Customers electronically using paperless invoices as the default billing method, 977 however Contractor shall bill Customers who decline paperless billing or are otherwise unable to provide 978 email contact information by standard mail, using standard (paper) invoices. Contractor’s website shall 979 allow Customers to pay their bill(s) electronically. Contractor shall permit Customers the ability to pay 980 their bills through an electronic check or credit card and include the ability for Customer billings to be 981 automatically charged on a recurring basis. Contractor shall prepare, mail, and collect bills from Customers 982 who decline to use such internet-based billing system. Contractor shall make arrangements to allow such 983 Customers to pay bills by cash, check, electronic check, money order, and credit card. 984 Contractor shall provide Customers with bill inserts in accordance with Exhibit C. 985 Contractor shall maintain copies of all billings and receipts, each in chronological order, for the Term of 986 this Agreement, for inspection and verification by the City Contract Manager at any reasonable time but 987 in no case more than thirty (30) calendar days after receiving a request to do so. 988 Contractor shall be responsible for collection of payment from Customers with past due accounts (“bad 989 debt”). Contractor’s efforts to obtain payment from delinquent accounts shall include the notice 990 requirements of this Section 4.9, and thereafter may include any other measures consistent with law 991 regulating the collection of debts.
992 Quarterly Customer invoices shall be due sixty (60) calendar days after the invoice date. Monthly 993 Customer invoices shall be issued in the month following the billing period, and shall be due thirty (30) 994 calendar days after the invoice date. In the event that any account becomes more than ten (10) calendar 995 days past due, Contractor shall notify such Customer of the delinquency via written correspondence, 996 instructing the Customer that unpaid bills that become more than forty-five (45) calendar days past due 997 may be assessed a one and one half percent (1.5%) late fee per month. Contractor shall provide a second 998 written notice of delinquency to Customer on any account that becomes more than sixty (60) calendar 999 days past due, and a third written notice of delinquency to any account that becomes more than ninety 1000 (90) calendar days past due. The ninety (90) day delinquency notice shall be sent to the Property Owner 149
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December 3, 2020 -26- City of Cupertino/Recology Franchise Agreement 1001 as well as the Customer if those are different. Should any account become more than ninety (90) calendar 1002 days past due, Contractor shall notify the City Contract Manager of the address, service level, service 1003 frequency, and delinquent billing amount at which point City may take action to enforce Municipal Code 1004 provisions relating to subscription and use of Collection service. Contractor may stop service to any 1005 account that is over one hundred twenty (120) days past due, and shall not be required to restart service 1006 until all amounts due are paid in full. Upon payment in full of the previously delinquent account, 1007 Contractor may require a deposit from the Customer not to exceed one (1) month’s billings at the 1008 Customer’s Service Level. Contractor shall provide reports documenting past due accounts in accordance 1009 with Exhibit D.
1010 If Contractor fails to invoice a Customer, or otherwise under-charges a Customer for services provided for 1011 more than six (6) months, Contractor may not subsequently attempt to collect the under-charged amount 1012 for more than six (6) months of service. If Contractor over-charges a Customer, Contractor shall reimburse 1013 or credit the Customer for the overcharges. This Agreement also does not prohibit Contractor from 1014 reimbursing or crediting a Customer for more than six (6) months of overcharges. 1015 4.10 CUSTOMER SERVICE PROGRAM
1016 4.10.1 Program Requirements
1017 A. Availability of Representatives. Contractor shall maintain an office within thirty (30) miles of City 1018 Hall. A representative of Contractor who is knowledgeable of the service area, services, and Rates 1019 shall be available from 7:30 a.m. to 4:30 p.m. Monday through Friday to communicate with the 1020 public and City representatives by telephone. Contractor shall maintain a local or toll-free 1021 telephone number, which it shall publicize. Contractor shall also maintain an after-hours 1022 telephone number allowing twenty-four (24) hour per day access to Contractor management by 1023 the City Contract Manager in the event of an emergency involving Contractor’s equipment or 1024 services including, but not necessarily limited to, fires, blocked access, or property damage. 1025 B. Telephone. The City shall secure, and Contractor shall use, pay all costs incurred by, and maintain 1026 during the Term of this Agreement, a toll-free phone number with telecommunications device for 1027 the deaf (TDD) capability which shall serve as the primary point of contact between Contractor 1028 and the public during normal business hours. Upon expiration or early termination of this 1029 Agreement, the City shall retain the control of the toll-free phone number. 1030 Contractor shall maintain a telephone system in operation from 7:30 a.m. to 4:30 p.m. and shall 1031 have sufficient equipment in place and staff a representative, or an answering service available to 1032 handle the volume of calls experienced on the busiest days and such telephone equipment shall 1033 be capable of recording the responsiveness to calls. Multilingual assistance for people speaking 1034 the most common non-English language in the City shall be made available, when needed. 1035 Contractor’s telephone system shall offer Customers who have been placed on-hold to opt to 1036 leave a voice message or email, rather than remain on-hold. In the event that Contractor’s 1037 telephone Customer service performance falls below the performance standards established in 1038 Exhibit F, the City Contract Manager may require Contractor to prepare and present a corrective 1039 action plan for achieving those performance standards over the next thirty (30) days. Contractor 1040 shall prepare and submit such a plan to the City Contract Manager within five (5) Business Days 1041 of the City Contract Manger’s request. In the event that Contractor’s Customer service staffing 1042 dedicated to this Agreement is not consistent with the number of staff proposed by Contractor, 150
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December 3, 2020 -27- City of Cupertino/Recology Franchise Agreement 1043 Contractor shall include increased staffing in the corrective action plan. The City Contract 1044 Manager shall review the plan within five (5) Business Days of receipt from Contractor and may 1045 approve or request additional information and modifications to the corrective action plan. Once 1046 approved, Contractor shall be required to implement the corrective action plan and achieve the 1047 performance standards within thirty (30) days. If the performance standards are still not achieved 1048 after this time, City shall have the right to exercise all remedies under the Agreement including, 1049 but not limited to, continued assessment of Liquidated Damages and/or termination of the 1050 Agreement consistent with the provisions of Section 10.1.F. 1051 Recording of Contractor’s responsiveness to calls shall include, at a minimum, all items included 1052 in the “Service Quality and Reliability” and “Customer Service” performance standards listed in 1053 Exhibit F. An answering machine or voicemail service shall record Customer calls and voice 1054 messages between 4:30 p.m. and 7:30 a.m., but shall be available for Customers to leave a 1055 message at all times. Contractor shall provide a live, not automated, call back on the same day to 1056 all Customers who leave voice messages by 4:30 p.m. on Working Day and shall provide a live call 1057 back by noon of the following Working Day for any voice messages left after 4:30 p.m. 1058 C. Web Site, Email Access, and Other Online Customer Engagement. Contractor shall develop and 1059 maintain a website that is accessible by the public and solely dedicated to the operations under 1060 this Agreement in the City. Contractor shall post all City-approved, service-related information on 1061 its website and shall review and update service-related information at least once per quarter or 1062 more frequently as directed by the City Contract Manager. Contractor’s website shall include an 1063 online list of Food Recovery Organizations and Food Recovery Services in accordance with Exhibit 1064 C. Contractor’s website shall additionally include all Rates allowed to be charged under the 1065 Agreement, including Debris Box and Compactor Rates, all public education and outreach 1066 materials produced and distributed under this Agreement, and provide the public the ability to e1067 mail Contractor questions, service requests, including starting service, changing or stopping 1068 existing service, and requesting On-Call, Bulky Item and Bin-by-the-Day Collection service, and/or 1069 Complaints. Contractor shall respond the same day to all Customers who leave e-mail messages 1070 by 4:30 p.m. on a Working Day and shall respond by noon of the following Working Day for any e1071 mail messages left after 4:30 p.m. Contractor may respond to Customer e-mails either via e-mail 1072 or phone. Substantive changes to the website shall be pre-approved by the City, and changes 1073 requested by the City shall be made within four (4) hours of the City’s request. 1074 D. Contractor’s “Commitment to Customer” Platform. Contractor has proposed to implement a 1075 software system that is intended to provide more robust tracking of Customer account and service 1076 data, including Complaints. Contractor anticipates implementing such system by January 1, 2023. 1077 At least six (6) months prior to Contractor’s implementation of such system in the City, Contractor 1078 shall meet with the City Contract Manager to demonstrate the features, options, and benefits of 1079 the system as well as to provide work flows to the City related to how this system may impact 1080 other interactions between the City, the Contractor, and Customers. Contractor shall also, at their 1081 sole expense, coordinate with the City’s third party software vendor responsible for the cloud1082 based Generator and SB 1383 data monitoring and reporting to ensure that data can be efficiently 1083 and accurately transferred between the Contractor’s proposed system and the City-designated 1084 system. In the event that Contractor is unable to successfully transfer data at the frequency and 1085 quality required by the City, Contractor shall be responsible for primary entry of data into the 1086 City’s designated system even if doing so would require double-entry by Contractor. Contractor 1087 has included a cost of one hundred eighteen thousand eight hundred twenty-seven dollars 151
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December 3, 2020 -28- City of Cupertino/Recology Franchise Agreement 1088 ($118,827) per year in Contractor’s Proposal for such software system. If the system has not been 1089 fully implemented by January 1, 2024, or equivalent functionality provided, the costs associated 1090 with such system shall not be allowed to be included in Contractor’s forecasted operating 1091 expenses for Rate Period Four onwards, until the system has been implemented or equivalent 1092 functionality provided. For any Rate Period in which Contractor is unable to include such costs in 1093 forecasted operating expenses, it shall be Contractor’s burden to demonstrate that any corporate 1094 overhead, information technology costs, or other broad category of expenses presented as 1095 allowable for Rate Period Four onwards exclude any costs associated therewith. 1096 4.10.2 Service Requests, Complaints
1097 Contractor shall be responsible for the prompt and courteous attention to, and prompt and reasonable 1098 resolution of, all Customer service requests and Complaints. Contractor shall record, in its computer 1099 system or a separate log all Complaints, noting the name and address of Complainant, date and time of 1100 Complaint, nature of Complaint, and nature and date of resolution. The data fields collected in such 1101 system or separate log shall be approved by the City Contract Manager. Contractor shall retain this 1102 Complaint log consistent with the requirements of Article 6. Contractor shall record and respond to all 1103 Complaints as communicated by the Customer, utilizing a “Customer is always right” approach, shall not 1104 challenge or dispute the Customer’s assertions or Complaints, and shall at all times prioritize Customer 1105 satisfaction. Upon request by the City Contract Manager, Contractor shall compile and submit a summary 1106 of the Complaint log.
1107 Contractor shall respond to all Complaints received in accordance with the requirements of this 1108 Agreement. Complaints related to missed or incomplete Collections shall be addressed in accordance with 1109 Section 4.10.3. Complaints related to repair or replacement of Carts or Bins shall be addressed in 1110 accordance with Section 5.6.
1111 4.10.3 Missed Collections, Non-Collection, and Courtesy Collection 1112 A. Missed Collection Complaints. When handling Customer Complaints related to missed or 1113 incomplete Collections, Contractor shall not question or contest the Customer’s claim that the 1114 Collection was missed or incomplete, even in cases where the Route driver recorded the 1115 Container(s) in question as already “Collected” or “not out”, subject to the limitations of Section 1116 4.10.3.F. Missed Collections, regardless of nature, shall be recorded and reported in accordance 1117 with Exhibit D.
1118 B. Schedule for Resolution. Contractor shall resolve each and every Customer Complaint of a missed 1119 or incomplete Collection by returning to the Customer address and completing the Collection as 1120 provided in this Section 4.10.3.B. For all Complaints related to missed Collections that are 1121 received before 9:00 a.m. on a Working Day, Contractor shall return to the Customer address and 1122 Collect the missed materials on the same Working Day on which the missed Collection was 1123 reported. For those Complaints related to missed Collections that are received after 9 a.m. on a 1124 Working Day, Contractor shall have until the end of the following Working Day to resolve the 1125 Complaint. Contractor’s failure to comply with this Section 4.10.3 may result in Liquidated 1126 Damages, in accordance with Exhibit F.
1127 Notwithstanding the foregoing, Contractor shall not be required to return and complete a 1128 Collection in response to a Complaint of missed Collection if: (a) Contractor’s driver has left a Non1129 Collection Notice in accordance with Section 4.10.3.C; or, (b) Contractor’s driver coded the 1130 Customer as “no set-out” (unless in the case of (b) the Customer is eligible for a courtesy 152
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December 3, 2020 -29- City of Cupertino/Recology Franchise Agreement 1131 Collection under Section 4.10.3.F).
1132 C. Non-Collection, Courtesy Noticing. Prior to the Commencement Date, Contractor shall submit to 1133 the City Contract Manager for review and approval:
1134 1. A template Non-Collection Notice, for use in instances of acceptable non-Collection of 1135 Discarded Materials, and instances in which Prohibited Container Contaminants are observed 1136 by Contractor. Template should be in printable format as well as digital format for the 1137 purposes of digitally communicating the information. 1138 2. A template Courtesy Notice, for use in instances of improper set-out of Discarded Materials, 1139 and/or instances in which Prohibited Container Contaminants are observed by Contractor, 1140 which Contractor, at its sole option, elects to Collect as a courtesy to the Customer. Template 1141 should be in printable format as well as digital format for the purposes of digitally 1142 communicating the information.
1143 The Non-Collection Notice shall, at a minimum: (i) inform the Customer of the reason(s) for non1144 Collection; (ii) include the date and time the notice was left; (iii) include information on proper 1145 Disposal of Excluded Waste; and, (iv) describe the Rate to Customer for Contractor to return and 1146 Collect the Container after Customer removes the contamination, if applicable. In addition, the 1147 notices shall inform the Customer that Contractor may charge Customer the Rate for such 1148 contamination Processing fee(s).
1149 The Courtesy Notice shall, at a minimum: (i) inform the Customer of improper setout of Discarded 1150 Materials and/or the presence of Prohibited Container Contaminants; (ii) include the date and 1151 time of the incident; (iii) include information on the Customer’s requirement to properly set out 1152 Containers and/or separate materials into the appropriate Containers, and the acceptable 1153 materials and Prohibited Container Contaminants for Collection in each Container; (iv) inform the 1154 Customer of the courtesy pick-up of the improperly set out and/or contaminated materials on 1155 this occasion and/or issue a Non-Collection Notice in the future; and, (v) shall include 1156 photographic evidence (if available). In addition, the notice shall inform the Customer that 1157 Contractor may charge Customer the Rate for such contamination Processing fee(s). 1158 The notice may be left attached to or adhered to the Generator’s Container, or at the Premises’ 1159 door or gate, at the time the violation is detected by Contractor, or may be delivered by e-mail or 1160 text message within one (1) Working Day after the incident, so long as a record of such 1161 communication is retained by Contractor for City review upon request. For Non-Collection 1162 Notices to Commercial or Multi-Family Customers, if Contractor does not have the Customer’s 1163 email address, then Contractor may call the Customer and either speak to the Customer or leave 1164 a voice message to describe the reason for non-Collection, and such call will count as a Non1165 Collection Notice so long as Contractor documents the call in its reports to the City. 1166 D. Non-Collection of Discarded Materials. In the event that Contractor encounters circumstances at 1167 a Customer Premises, including circumstances described in Section 5.3.A, which prevent 1168 Contractor from Collecting Discarded Materials that have been placed for Collection, Contractor 1169 shall provide a Non-Collection Notice clearly explaining Contractor’s reason for refusal to Collect 1170 the Discarded Materials. Such reasons may also include: (i) overweight Containers (Cart weight in 1171 excess of 84 lbs. for 24g, 112 lbs. for 32g, 224 lbs. for 64g, 335 lbs. for 96g; Bin weight in excess 1172 of 1,200 lbs.); (ii) Containers overfilled such that the lid is not flush with the body; and, (iii) inability 153
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December 3, 2020 -30- City of Cupertino/Recology Franchise Agreement 1173 to access Containers. Contractor shall not be required to Collect Discarded Materials that are 1174 reasonably believed to contain Excluded Waste, pursuant to the requirements of Section 5.8. If 1175 Contractor declines to Collect Discarded Materials (including Cardboard overages) that have been 1176 set out, but does not leave a Non-Collection Notice, it shall be considered a Missed Collection per 1177 this Section 4.10.3.
1178 E. Courtesy Collection for Improper Set-Out. In the event that Contractor encounters circumstances 1179 at a Customer Premises that allow for safe Collection of Discarded Materials, but do not otherwise 1180 reflect proper set-out procedures (including, but not limited to over-full Containers, spills not 1181 caused by Contractor, Carts placed too close together, Carts placed in front of one another, Carts 1182 placed too close to parked cars, but excluding overweight Containers, Contractor shall Collect the 1183 material and may leave a Courtesy Notice at the Customer Premises clearly explaining how the 1184 Customer failed to comply with proper set-out procedures. 1185 Contractor may educate the public on proper set-out procedures designed to maximize the 1186 efficiency of Collection (e.g. Carts spaced two (2) feet apart). However, Contractor acknowledges 1187 that such procedures are not practical in all circumstances and failure of the Customer to follow 1188 such procedures does not constitute a reason for non-Collection if the Discarded Materials may 1189 be safely and reasonably serviced. Contractor’s Route drivers shall dismount their Collection 1190 vehicles and reposition Containers as necessary to provide Collection service. Contractor may not 1191 require a Customer to set out the Customer’s Containers in such a manner that would block 1192 vehicle access to Customer’s driveway. Contractor and Customers may mutually agree to 1193 uncommon service locations if necessary for Collection in specific areas. 1194 F. Courtesy Collections for Admitted Late Set-Outs or Documented No Set-Outs. In the event that 1195 a Customer: (i) reports that their Container(s) were placed for Collection after Contractor’s 1196 Collection vehicle had already passed the Premises for regularly scheduled Collection; or (ii) claims 1197 that Contractor missed the Collection, even though Contractor’s driver coded the Customer as 1198 “no set-out”; and in either case requests that Contractor return and Collect their Containers, 1199 Contractor shall return to the Customer Premises and provide a courtesy Collection at no charge 1200 to the Customer, provided that Contractor is not required to provide more than two (2) courtesy 1201 Collections per Customer per calendar year under this paragraph. For Single-Family Customers, 1202 one (1) courtesy Collection represents Collection of up to three (3) Carts (Recyclable Materials, 1203 Organic Materials, Solid Waste) per incident. Contractor shall complete the courtesy Collection by 1204 the end of the following Working Day.
1205 G. Non-Collection Due to Contamination. Contractor may refuse to Collect a Recyclable Materials 1206 or Organic Materials Container that contains more than ten percent (10%) by volume of 1207 Prohibited Container Contaminants, provided that Contractor leaves a Non-Collection Notice in 1208 accordance with Section 4.10.3.C of this Agreement. Contractor shall instruct the Customer to 1209 either remove the Prohibited Container Contaminants, or pay the Rate to have the contents of 1210 the contaminated Recyclable Materials or Organic Materials Container Collected as Solid Waste. 1211 H. Identification of Excluded Waste. If a Collection vehicle driver observes Excluded Waste in an 1212 uncollected Container, the driver shall affix a Non-Collection Notice to the Container in 1213 accordance with this Section and shall not Collect the Discarded Materials. The Non-Collection 1214 Notice shall list the phone number of a facility that accepts the Excluded Waste or a phone 1215 number of an entity that can provide information on proper Disposal of the Excluded Waste. If a 154
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December 3, 2020 -31- City of Cupertino/Recology Franchise Agreement 1216 Collection vehicle driver observes Excluded Waste, including instances in which the Container 1217 with the Excluded Waste has been Collected, the Collection vehicle driver shall record that 1218 observation, which shall include photographic evidence (if available), in the on-board computer 1219 system (if available) or some other system approved by the City Contract Manager, and 1220 immediately inform their Route supervisor. The Route supervisor shall investigate and initiate 1221 applicable action, including providing immediate notification to the applicable Approved 1222 Facility(ies) and/or Designated Facility(ies).
1223 I. Communications with Customer. Whenever a Container at the Premises of a Commercial or a 1224 Multi-Family Customer is not Collected, Contractor shall contact the Customer on the scheduled 1225 Collection day to explain why the Container was not Collected. Contractor shall contact such 1226 Customers through the application of a Container tag, by electronic communication, or phone 1227 call, provided that if Contractor does not possess an email address or phone number for the 1228 Customer, Contractor may provide a written communication, which shall include a request for an 1229 email address or phone number for future notifications. Whenever a Container is not Collected 1230 because it contains more than ten percent (10%) by volume of Prohibited Container 1231 Contaminants, a Customer service representative shall contact the Customer to discuss, and 1232 encourage the Customer to adopt proper Discarded Materials preparation and separation 1233 procedures.
1234 J. Contractor Return for Collection. Upon request from Customer, Contractor shall Collect 1235 Containers that received Non-Collection Notices within one (1) Working Day after Customer’s 1236 request if the request is made at least two (2) Working Days prior to the regularly scheduled 1237 Collection Day. Contractor may charge Customer the Rate for the special pick-up (“return trip pick1238 up”) per section 4.10.3 K if Contractor successfully notifies Customer of the Rate for this service 1239 at the time the request is made by Customer.
1240 K. Rates Related to Non-Collection. Contractor may charge the Customer the Rate for a special pick1241 up if the Customer elects to have their corrected or contaminated Recyclable Materials or Organic 1242 Materials Container serviced before the next regular Collection day. If the Customer chooses to 1243 have their contaminated Recyclable Materials or Organic Materials Container Collected as Solid 1244 Waste, Contractor may charge the Customer the Rate for the special pick-up. 1245 Six (6) months after the Commencement Date, Contractor and the City shall meet and confer to 1246 discuss the establishment of a Rate for contamination fees for Customers that do not properly 1247 sort their Discarded Materials. If the City elects to utilize contamination fees, Contractor shall be 1248 required to utilize the following approach for assessment of contamination fees. If Contractor 1249 observes Prohibited Container Contaminants in a Customer’s Organic Materials Container or 1250 Recyclable Materials Container on more than two (2) consecutive occasions, Contractor may 1251 impose a contamination fee, in the amount specified by the City, and shall notify the City in its 1252 monthly report of Customers for which contamination fees were assessed. Contractor shall leave 1253 a contamination fee notice on the contaminated Containers, describing the specific material(s) of 1254 issue, explaining how to correct future set-outs, and indicating that the Customer will be charged 1255 a contamination fee on its next bill. The format of the contamination fee notice must be approved 1256 by the City Contract Manager. Contractor shall Collect the contaminated Recyclable Materials or 1257 Organic Materials as Solid Waste and Transport the material to the Approved Facility. Upon City 1258 request, the Parties shall review the amount of revenue generated from contamination fees. 155
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December 3, 2020 -32- City of Cupertino/Recology Franchise Agreement 1259 L. Disposal of Prohibited Container Contaminants. If Contractor observes a visible Prohibited 1260 Container Contaminant in a Customer’s Organic Materials Container or Recyclable Materials 1261 Container, Contractor may Dispose of the Container’s contents provided Contractor complies with 1262 the noticing requirements of this Section 4.10.3.
1263 M. Record of Non-Collection. The driver shall record the non-Collection event, in the on-board 1264 computer system (if available), by calling it in to Contractor’s dispatch, by noting it on the Route 1265 sheet, by keeping a “receipt” of the Non-Collection Notice, or through some other process 1266 approved by the City Contract Manager, and the Customer’s computerized account record shall 1267 be updated to note the event. Contractor shall maintain electronic records of all Non-Collection 1268 Notices, listing all taggings, the addresses of the parties involved, the date of the notice, the 1269 reason for the notice, and the date and manner of resolution of each instance. Contractor shall 1270 provide the above detail on a monthly basis as provided in Exhibit D. Contractor shall retain such 1271 records as required by Article 6.
1272 4.11 ACCESS TO CUSTOMER SERVICE AND BILLING SYSTEMS 1273 Contractor shall provide read-only access and any necessary training to one (1) or more City employee(s) 1274 (as designated by the City) regarding the use of Contractor information systems as described in this 1275 Section. Contractor shall designate one (1) member of Contractor staff to work directly with such City 1276 employee. Contractor shall provide such City employee with read-only access to Customer service, call 1277 center, and operations information systems in order to validate Contractor performance standards, and 1278 recommend changes to Customer Service Levels to resolve service issues or otherwise address Customer 1279 needs. Contractor shall also provide access to Customer contact information (including email addresses) 1280 for purposes of City-provided public education and outreach activities. In addition, Contractor shall ensure 1281 that the City Contract Manager and any other City staff, as requested by the City, have read-only access 1282 to all service order, billing, and Customer service records in Contractor’s internal information systems. 1283 Such read-only access is intended to provide the City the ability to review notes related to Customer 1284 service and/or billing issues.
1285 4.12 SERVICE EXEMPTIONS
1286 4.12.1 General Exemptions
1287 The Municipal Code permits certain exemptions from the obligation to subscribe to the Collection service 1288 described herein. For the purposes of this Section 4.12, the term “Generators ” is based on SB 1383 1289 regulatory language and is inclusive of the terms “Customer” and “Generator” as defined in Exhibit A and 1290 as otherwise used in the Agreement.
1291 4.12.2 Generator Waivers
1292 A. General. As of the Effective Date, the City provides a Yard Trimming exemption for Single Family 1293 Customers as provided in Exhibit B1, Section 2. The City, in its sole discretion, may amend the 1294 Municipal Code to provide for additional Generator waivers or exemptions. Such amendments 1295 may allow for waivers to address compliance with SB 1383 requirements, pursuant to 14 CCR 1296 Section 18984.11.
1297 B. Potential SB 1383 Generator Waivers. Should the City amend the Municipal Code to allow SB 1298 1383 Generator waivers, the City may grant de minimis and/or physical space waivers to 156
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December 3, 2020 -33- City of Cupertino/Recology Franchise Agreement 1299 Commercial businesses and/or Multi-Family Generators, and may additionally grant Collection 1300 frequency waivers to Generators pursuant to 14 CCR Section 18984.11. 1301 C. Contractor Review of Waiver Requests. Generators may submit requests for de minimis waivers, 1302 physical space waivers, and Collection frequency waivers to the City, and the City may request 1303 Contractor’s assistance in reviewing such waivers. Upon the request of the City, and subject to 1304 the consent of the Generator, Contractor shall within seven (7) days after receipt of the City’s 1305 request, inspect Generator’s Premises to verify the accuracy of the application. Contractor shall 1306 provide documentation of the inspection, including the date of the inspection, Customer name 1307 and address, a description of the Premises, evaluation of each criterion of the relevant waiver 1308 type, and photographic evidence if consented to by the Generator. Contractor shall send this 1309 information and documentation to the City in a timely manner, not to exceed three (3) days after 1310 the date of inspection. The City ultimately retains the right to approve or deny any application, 1311 regardless of the information provided by Contractor. Contractor shall report information 1312 regarding waivers reviewed within the month, if any, in accordance with Exhibit D. 1313 D. Service Level Updates. When the City grants a waiver to a Customer, or the Customer’s waiver 1314 status changes after a reverification determination, the City shall notify Contractor within seven 1315 (7) days after the waiver approval or status change with information on the Customer and any 1316 changes to Service Level or Collection service requirements for the Customer. Contractor shall 1317 have seven (7) days to modify the Customer’s Service Level, Customer account data, and billing 1318 statement, as needed.
1319 E. Waiver Reverification. The City intends to be responsible for reverification of waivers at a 1320 minimum of once every five (5) years. Upon request of the City, Contractor shall support the City 1321 in this reverification process by providing requested Customer information. In the event that a 1322 waiver status changes, Contractor shall update the Customer’s information and Service Level in 1323 accordance with Section 4.12.2.D above.
1324 4.12.3 Contractor Service Exemptions
1325 A. Disaster Waivers. In the event of a disaster, and subject to the provisions of Exhibit B4, Section 2, 1326 the City may grant Contractor a waiver of some or all Discarded Materials Collection requirements 1327 under this Agreement and 14 CCR, Division 7, Chapter 12, Article 3 in the disaster-affected areas 1328 for the duration of the waiver, provided that such waiver has been approved by CalRecycle. 1329 Contractor Compensation for any resulting changes in Collection requirements shall be addressed 1330 as in accordance with Exhibit E2.
1331 B. Illegal Disposal Sites. Contractor may, but is not required to, separate or recover Organic Waste 1332 that Contractor removes from illegal disposal sites as part of an abatement activity to protect 1333 public health and safety. Contractor shall report the amount of Discarded Materials removed for 1334 Disposal from illegal disposal sites, in accordance with Exhibit D. 1335 C. Quarantined Waste. If approved by the City, Contractor may Dispose of, rather than Process, 1336 specific types of Organic Materials and/or Recyclable Materials that are subject to quarantine due 1337 to spread of pathogens or similar concerns, and meet the requirements described in 14 CCR 1338 Section 18984.13(d) for a period of time specified by the City or until the City provides notice that 1339 the quarantine has been removed and directs Contractor to Transport the materials to the 1340 Approved Facilities for such material.
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December 3, 2020 -34- City of Cupertino/Recology Franchise Agreement 1341 In accordance with Article 6 and Exhibit D, Contractor shall maintain records and submit reports 1342 regarding compliance agreements for quarantined Organic Materials and Recyclable Materials 1343 that are Disposed of pursuant to this Section 4.12.3.C. 1344 This Section 4.12.3 shall not be deemed to limit Contractor’s rights under any other provision of 1345 this Agreement.
1346 4.13 CONTAMINATION MONITORING
1347 For the purposes of this Section 4.13, the term “Route” is based on SB 1383 regulatory language as 1348 described in 14 CCR Section 18982.31.5. The term “Generator” is based on SB 1383 regulatory language 1349 and is inclusive of the terms “Customer” and “Generator” as defined in Exhibit A and as otherwise used in 1350 the Agreement. Contractor acknowledges that SB 1383 requires annual contamination monitoring of 1351 Discarded Materials, pursuant to 14 CCR Section 18984.5. The standard approach of contamination 1352 monitoring involves annual Route reviews, as provided in Section 4.13.1. The performance-based 1353 contamination monitoring approach involves waste evaluations, as provided in Section 4.13.2. 1354 4.13.1 Annual Route Reviews
1355 A. Methodology. Beginning January 1, 2022, Contractor shall, at its sole expense, conduct Route 1356 reviews of Containers for Prohibited Container Contaminants in a manner that: meets the 1357 requirements of this Section; is approved by the City; complies with SB 1383; and, results in all 1358 Routes being reviewed at least annually.
1359 Contractor’s Route review shall include all Container types in service (Recyclable Materials, 1360 Organic Materials, and Solid Waste Containers) for all Customer Types. The Containers shall be 1361 randomly selected prior to beginning the Route review through use of a random number 1362 generator; and the minimum number of Containers to be sampled shall be based on weekly Route 1363 size, as follows:
1364 1. For weekly Routes with less than 1,500 Generators, Contractor shall sample a minimum of 25 1365 Containers;
1366 2. For weekly Routes with 1,500-3,999 Generators, Contractor shall sample a minimum of 30 1367 Containers;
1368 3. For weekly Routes with 4,000-6,999 Generators, Contractor shall sample a minimum of 35 1369 Containers; and,
1370 4. For weekly Routes with more than 7,000 Generators, the study shall include a minimum of 40 1371 samples.
1372 Contractor shall develop a specific Route review methodology to accomplish the above Container 1373 inspection requirements and such methodology shall comply with the requirements of 14 CCR 1374 Section 18984.5(b). Contractor shall submit its proposed Route review methodology for the 1375 coming year to the City no later than January 15 of each year describing its proposed methodology 1376 for the calendar year and schedule for performance of each Route’s annual review. Contractor’s 1377 proposed Route review methodology shall include not only its plan for Container inspections, but 1378 shall also include its plan for prioritizing the inspection of Customers that are more likely to be 158
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December 3, 2020 -35- City of Cupertino/Recology Franchise Agreement 1379 out of compliance. The City and/or CalRecycle will review and approve the proposed 1380 methodology. Contractor may commence with the proposed methodology upon approval. 1381 If the City and/or CalRecycle notifies Contractor that the methodology is inadequate to meet the 1382 requirements of 14 CCR Section 18984.5(b), Contractor shall, at its sole expense, revise the 1383 methodology and, after obtaining the City or CalRecycle approval, conduct additional Route 1384 reviews, increased Container inspections, or implement other changes using the revised 1385 procedure. If Contractor’s proposed methodology meets the requirements of 14 CCR Section 1386 18984.5(b), but has been deemed inadequate by the City, Contractor shall, at the expense of the 1387 City, revise the methodology and implement the necessary changes using the revised procedure. 1388 The City’s Contract Manager may request, and Contractor shall accept, modifications to the 1389 schedule to permit observation of the Route reviews by the City. In addition, Contractor shall 1390 provide an email notice to the City’s Contract Manager no less than ten (10) Working Days prior 1391 to each scheduled Route review that includes the specific time(s), which shall be within the City’s 1392 normal business hours, and location(s).
1393 B. Contamination Notification. Upon identification of Prohibited Container Contaminants in a 1394 Customer’s Container, Contractor shall provide the Customer with a notice of contamination in 1395 the form of either a Courtesy Notice or a Non-Collection Notice, pursuant to Section 4.10.3. 1396 C. Container Contaminant Log. The driver or other Contractor representative shall record each 1397 event of identification of Prohibited Container Contaminants in a written log or in the on-board 1398 computer system including: date, time, Customer’s address, type of Container, and maintain 1399 photographic evidence (if available). Contractor shall allow the City Contractor Manager access to 1400 such records, pursuant to Article 6.
1401 D. Contaminant Fees Assessment Report: Additionally, on no less than a daily basis, Contractor shall 1402 update the Customer’s account records to note the contaminant event(s) as identified by 1403 driver(s). Contractor shall maintain records and report to the City monthly on contamination 1404 monitoring activities and actions taken, consistent with the submittal timing and content 1405 requirements of Exhibit D. The monthly report shall include, but is not limited to: list of Customers 1406 that were assessed charges, photographic evidence of each contamination event(s) where a fee(s) 1407 was assessed, verification processes to assure accurate fee assessment, date of notification, 1408 form(s) of notification given to Customer, list of efforts made in educating the Customer that was 1409 assessed a fee, list of Customer Complaints in response to fee assessment, and Contractors 1410 response and actions taken in response to Customer Complaints. 1411 E. Identification of Excluded Waste. If Contractor’s driver observes Excluded Wasted, Contractor’s 1412 driver shall follow the applicable procedures specified in Section 4.10.3.H. 1413 F. Assessment of Contamination Fees. Contractor may impose contamination fees in accordance 1414 with Section 4.10.3.K.
1415 G. Communications with Customer. Contractor shall communicate with Customers in accordance 1416 with Section 4.10.3.I.
1417 H. Contractor Return for Collection. Contractor shall return to Customer Premises for Collection of 1418 Discarded Materials in accordance with Section 4.10.3.J. 159
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December 3, 2020 -36- City of Cupertino/Recology Franchise Agreement 1419 I. Disposal of Prohibited Container Contaminants. Contractor may Dispose of Prohibited Container 1420 Contaminants observed in Customer’s Organic Materials Container or Recyclable Materials 1421 Container in accordance with Section 4.10.3.L.
1422 J. Monthly Reporting Requirements. Contractor shall maintain records and report to the City 1423 monthly on contamination monitoring activities and actions taken, in accordance with Exhibit D. 1424 4.13.2 Waste Evaluation Studies
1425 If, at the City’s sole discretion, the City pursues a performance-based compliance approach to SB 1383, as 1426 provided in Section 18998.1 of the SB 1383 regulations, then the Parties shall cooperate to conduct the 1427 waste evaluations contemplated by Section 18984.5(c). The evaluations shall be conducted by a third 1428 party selected and paid for by City or funded by Contractor and the direct cost of such allowed as an 1429 “Other Adjustment” in the next Rate adjustment. City and Contractor shall cooperate to obtain quotes for 1430 the third party’s services. Contractor shall, at no additional charge, make available space at its Rogers 1431 Avenue facility for the evaluations to be conducted, at mutually agreed times. 1432 4.14 SB 1383 INSPECTIONS AND ENFORCEMENT
1433 For the purposes of this Section 4.14, the term “Generators” is based on SB 1383 regulatory language and 1434 is inclusive of the terms “Customer” and “Generator” as defined in Exhibit A and as otherwise used in the 1435 Agreement.
1436 A. Annual Compliance Reviews
1437 1. General. Contractor shall perform Customer compliance reviews described in this Section 1438 commencing January 1, 2022, and at least annually thereafter, during a timeframe proposed 1439 by Contractor and approved by the City Contract Manager. 1440 2. Commercial and Multi-Family Generator Compliance Reviews. Contractor shall complete an 1441 annual compliance review of all Multi-Family and Commercial Customers that appear, based 1442 on subscribed-for Container volume, to generate two (2) cubic yards or more per week of 1443 Solid Waste, including Organic Materials, to determine: (i) whether Multi-Family and 1444 Commercial Customers are subscribed to Organic Material and Recyclable Materials 1445 Collection service; and, (ii) if not, whether Contractor has information indicating that the 1446 Customer is complying with Self-Hauling requirements per 14 CCR Section 18988.3 and the 1447 City Municipal Code, including whether a Commercial Premise is complying through Back1448 Hauling Organic Materials. The compliance review shall mean a “desk” review of records to 1449 determine Customers’ compliance with the above requirements and does not require on-site 1450 observation of service.
1451 3. Annual Route Review. In addition to the targeted “desk” reviews described in Section 1452 4.14.A.2, beginning April 1, 2022 and annually thereafter, Contractor shall conduct annual 1453 Route reviews of Commercial, Multi-Family, and Single-Family Generators for compliance 1454 with the City’s Discarded Materials Collection program (specifically, whether Generators 1455 actually have the Containers they are subscribed or are required to have). Generator 1456 compliance Route reviews may be performed concurrently with the contamination 1457 monitoring Route reviews, described in Section 4.13.1, provided that Contractor documents 1458 a reasonable sampling, based on direction from the City Contract Manager, of Generators for 160
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December 3, 2020 -37- City of Cupertino/Recology Franchise Agreement 1459 which compliance with the City’s Discarded Materials Collection program during the Route 1460 review was assessed.
1461 4. Food Recovery Compliance Reviews. Commencing January 1, 2022 and at least annually 1462 thereafter, Contractor and the City shall meet and confer regarding inspections of Tier One 1463 Commercial Edible Food Generators to assess compliance with the requirements of 14 CCR, 1464 Division 7, Chapter 12, Article 10. Commencing January 1, 2024 and at least annually 1465 thereafter, Contractor and the City shall expand Edible Food Generator compliance reviews 1466 to include inspections of Tier Two Commercial Edible Food Generators. 1467 B. Compliance Review Process
1468 1. Number of Reviews. Contractor shall conduct Route reviews and inspections of entities 1469 described in this Section at a minimum of once per year, or as directed by the City Contract 1470 Manager, to adequately determine the entities’ overall compliance with SB 1383, and City 1471 Municipal Code 6.24 Mandatory Organic Recycling for Business Structures. The City may 1472 require Contractor to prioritize inspections of entities that the City determines are more likely 1473 to be out of compliance.
1474 2. Non-Compliant Entities. From January 1, 2022 through December 31, 2023, when compliance 1475 reviews are performed by Contractor pursuant to this Section 4.14, Contractor shall provide 1476 City-approved educational materials, as described in Section 4.10, in response to violations. 1477 Contractor shall provide these educational materials to the non-compliant Customers and 1478 Generators within two (2) Working Days after determination of non-compliance or 1479 immediately upon determination of non-compliance if such non-compliance is determined 1480 during an inspection or Route review. Contractor shall document the non-compliant 1481 Customers and Generators and the date and type of education materials provided and report 1482 such information to the City in accordance with Exhibit D. Beginning January 1, 2024, 1483 Contractor shall document non-compliant Customers and Generators determined through 1484 Contractor’s compliance reviews pursuant to this Section 4.14, and shall report all Customers 1485 and Generators with SB 1383 violations to the City in accordance with Exhibit D. The City shall 1486 be responsible for subsequent enforcement action against the Generator or Customer. 1487 3. Documentation of Inspection Actions. Contractor shall generate a written or electronic 1488 record and maintain documentation for each inspection, Route review, and compliance 1489 review conducted, including the information described in Exhibit D. 1490 C. Documentation of Complaints.
1491 1. General. Contractor shall maintain a computer database log of all oral and written SB 1383- 1492 related Complaints received by Contractor from Customers or other Persons in accordance 1493 with Article 6.
1494 2. SB 1383-Noncompliance Complaints. For Complaints received in which the Person alleges 1495 that an entity is in violation of SB 1383 requirements, Contractor shall document such 1496 Complaint investigations in accordance with Exhibit D. 161
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December 3, 2020 -38- City of Cupertino/Recology Franchise Agreement 1497 3. Investigation of SB1383-Noncompliance Complaints 1498 a. Investigation. Contractor shall assist the City in meeting its obligation to investigate 1499 Complaints by commencing an investigation within thirty (30) calendar days after 1500 receiving a Complaint in the following circumstances: (i) upon Contractor receipt of a 1501 Complaint that an entity may not be compliant with SB 1383 and if the City determines 1502 that the allegations against the entity, if true, would constitute a violation of SB 1383; 1503 and, (ii) upon City request to investigate a Complaint received by the City, in which the 1504 City determines that the allegations against the entity, if true, would constitute a 1505 violation of SB 1383. Contractor is required to investigate Complaints against Customers 1506 and Generators, and not against Food Recovery Organizations, Food Recovery Services, 1507 and other entities regulated by SB 1383.
1508 Contractor shall investigate the Complaint by:
1509 i. Reviewing the Service Level of the Customer (if the entity is a Customer of 1510 Contractor);
1511 ii. Reviewing the waiver list, if applicable, to determine if the entity has a valid, City1512 approved de minimis, space constraint, or Collection frequency waiver; 1513 iii. Reviewing the Self-Haul registration list, if applicable, to determine if the entity 1514 has registered and reviewing the entities reported Self-Haul information; 1515 iv. Inspecting Premises of the entity identified by the complainant, if warranted; and, 1516 v. Contacting the entity to gather more information, if warranted; 1517 vi. Affixing a City-approved notice of Complaint on the Customer’s Container, in 1518 accordance with Section 4.10.3.
1519 b. Reporting. Within ten (10) calendar days after completing an investigation of an SB 1520 1383- noncompliance Complaint, Contractor shall submit to the City an investigation 1521 Complaint report that documents the Customer account in question, the nature of the 1522 Complaint, the investigation performed, and the City-approved educational materials 1523 provided to non-compliant Generators if Contractor determines a violation has 1524 occurred.
1525 Contractor shall provide to the City in its monthly report a list of all Customer 1526 Complaints that have not been resolved by Contractor within thirty (30) calendar days 1527 after receiving such Complaints. The Customer Complaint list shall include the 1528 Customer’s account information, including Customer’s then-current Service Level, the 1529 nature of the Complaint, and Contractor’s efforts to resolve the Complaint. The City, or 1530 its designee, shall be responsible for investigating such outstanding Complaints 1531 received by Contractor.
1532 Within three (3) Working Days after the City’s or its designee’s request, Contractor shall 1533 provide the City or its designee with Customer account information and other 1534 documentation that may be useful in the investigation, such as records of the 162
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December 3, 2020 -39- City of Cupertino/Recology Franchise Agreement 1535 Customer’s two most recent change(s) in Service Level and other Customer service 1536 records.
1537 4.15 EDIBLE FOOD RECOVERY PROGRAM
1538 A. General. Pursuant to the requirements of SB 1383, 14 CCR, Division 7, Chapter 12, Article 10, the 1539 City is responsible for developing and implementing a Food Recovery program in the City. 1540 Contractor shall not impede, interfere, or attempt to impede or interfere with the 1541 implementation, expansion, or operation of Food Recovery program efforts in the City. Contractor 1542 acknowledges that the City’s Edible Food Recovery program may Divert Edible Food that would 1543 otherwise become Food Scraps from Contractor’s Organic Materials Collection program. 1544 B. Identification of Commercial Edible Food Generators. Contractor shall assist City in identifying 1545 Tier One and Tier Two Commercial Edible Food Generators for the purpose of the Food Recovery 1546 program. City shall make the final determination as to whether a Customer is a Tier One or Tier 1547 Two Commercial Edible Food Generator. No later than six (6) months after the Commencement 1548 Date, and annually thereafter, Contractor shall identify and provide a list to the City of Commercial 1549 Customers that qualify, or appear to qualify, as Tier One or Tier Two Commercial Edible Food 1550 Generators, as defined by this Agreement. The list shall include, at a minimum: the Customer 1551 name; service address; contact information; apparent Tier One or Tier Two classification (or actual 1552 classification, once determined by City); and, type of business as it relates to the categories of 1553 entities specified under the definitions of Tier One and Tier Two Commercial Edible Food 1554 Generators. Contractor shall be permitted to make reasonable good faith estimates of factual 1555 matters necessary for Tier One/Tier Two classification (such as square footage, number of seats, 1556 etc.) if the Customer fails to provide it. Contractor shall update this information annually; maintain 1557 an up-to-date database; and include this information in Contractor’s annual report, in accordance 1558 with Exhibit D. If Commercial Edible Food Generators that do not qualify as Tier One or Tier Two 1559 desire to participate in the Food Recovery program, the City shall provide technical assistance and 1560 maintain documentation.
1561 C. Edible Food Recovery at Special Events. Contractor shall support the recovery of Edible Food 1562 from special events in accordance with Section 4.6 and 14 CCR Chapter 12 Section 18991.3. 1563 Contractor acknowledges that efforts to recover Edible Food at the special events may be 1564 conducted by others; and, Contractor agrees not to interfere with such activities. 1565 4.16 SB 1383 COMPLIANCE APPROACH
1566 The Agreement assumes use of a “standard” compliance approach pursuant to 14 CCR, Division 7, Chapter 1567 12. The distribution of City and Contractor responsibilities for SB 1383 is further described in Exhibit J. 1568 Exhibit J also contains definitions and other clarifying detail related to SB 1383 requirements. 1569 During the Term of this Agreement, the City may elect to pursue a “performance-based” compliance 1570 approach in accordance with 14 CCR, Division 7, Chapter 12, Article 17, in which case the City Contract 1571 Manager and Contractor shall meet and confer no less than six (6) months prior to the scheduled shift to 1572 a performance-based approach. City’s election to pursue a “performance-based” compliance approach 1573 shall be treated as a change in scope under Section 3.5. 163
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December 3, 2020 -40- City of Cupertino/Recology Franchise Agreement 1574 ARTICLE 5.
1575 STANDARD OF PERFORMANCE
1576 5.1 GENERAL
1577 Contractor shall at all times comply with applicable Federal, State, and local laws and regulations and 1578 provide services in a manner that is safe to the public and Contractor’s employees. 1579 5.2 OPERATING HOURS AND SCHEDULES
1580 A. Hours of Collection. Unless otherwise authorized by the City Contract Manager, Contractor’s days 1581 and hours for Collection operations shall be as follows:
1582 1. Residential Premises. Collection from Residential Premises shall only occur between the 1583 hours of 7:00 a.m. and 5:00 p.m., Monday through Friday, unless specifically approved in 1584 advance in writing by the City; except that during weeks in which a Holiday occurs, Contractor 1585 may provide Collection scheduled for a Friday on Saturday. 1586 2. Commercial Premises. Collection from Commercial Premises shall occur only between the 1587 hours of 6:00 a.m. and 5:00 p.m., seven (7) days per week, unless specifically approved in 1588 advance in writing by the City Contract Manager. In all areas where Residential properties are 1589 adjacent to Commercial properties or close enough that the Collection vehicle noise disrupts 1590 sleeping residents, Collection services from Commercial Premises shall not start before 8:00 1591 a.m. Monday through Friday or 9:00 a.m. on Saturday and Sunday. 1592 3. City Facilities. The Collection schedule for City facilities shall be the same as Commercial 1593 Premises specified in Section 5.2.A.2 above.
1594 B. Holiday Collection Schedule. Contractor, at its sole discretion, may choose not to provide 1595 Collection services on a Holiday. In such event, Contractor shall provide Single-Family Collection 1596 services on the day following the Holiday, thereby adjusting subsequent work that week with 1597 normally scheduled Friday Collection Services being performed on Saturday; however, Customer 1598 service days shall be returned to the normal schedule within one (1) week of the Holiday. Multi1599 Family, Commercial, and City Collection services shall be adjusted as agreed between Contractor 1600 and the Customer, but must meet the minimum frequency requirement of one (1) time per week. 1601 Contractor shall provide Customers notice of Holiday-related changes in Collection schedules at 1602 least thirty (30) calendar days prior to the change. 1603 5.3 COLLECTION STANDARDS
1604 A. Servicing Containers. Contractor shall Collect and return each Container to the location where 1605 the Occupant placed the Container for Collection. Contractor shall place the Containers upright 1606 with lids properly secured. All Carts serviced within the public right of way shall be set out with 1607 wheels against the Curb in a location that does not block access to driveways and minimizes 1608 encroachment on bicycle and pedestrian paths.
1609 For Customers other than Single-Family Residential Customers, Contractor shall, without 1610 additional charge to the Customer, open and close gates, pull or push up to three (3) Carts or Bins 164
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December 3, 2020 -41- City of Cupertino/Recology Franchise Agreement 1611 per Customer (i.e., one (1) Cart or Bin each of Recyclable Materials, Organic Materials, and Solid 1612 Waste) up to twenty-five (25) feet (push up to 25 feet then return) from the location where the 1613 Occupant placed the Container for Collection to the Collection vehicle for service. Contractor may 1614 charge such Customers at the Rates for any additional Containers that need to be pulled or 1615 pushed, with a lower Rate for Carts as provided in Exhibit G3. Container lids shall be closed after 1616 servicing and all Bins shall be returned to the Customer’s waste enclosure. 1617 Contractor, at the request of Customers, may provide special services including: (i) unlocking 1618 Containers; (ii) accessing Container enclosures with a key; or, (iii) pulling or pushing Containers 1619 distances greater than twenty-five (25) feet. Contractor may charge Customers at the Rates for 1620 such extra services.
1621 Under no circumstances shall Contractor be required to push or pull a Cart or Bin up or down 1622 stairs, up or down a slope that exceeds seven (7) degrees, or if doing so would pose an 1623 unreasonable safety risk to Contractor’s driver (e.g., overweight Containers). 1624 B. Hard-to-Service Areas. Contractor may request City consider the need to establish specific service 1625 standards for hard-to-service conditions, such as private roads, narrow streets, and steep streets 1626 where Contractor is otherwise unable to provide service meeting the highest safety standards. 1627 Contractor may request City consider the need to establish a modified or new Rate(s) for hard-to1628 service conditions. In no instance shall Contractor charge such a modified or new Rate without 1629 prior City approval as provided in Section 8.2.E.
1630 Private Roads. Contractor may require Customers on private roads to sign road damage liability 1631 waivers as a condition to Contractor operating on such private roads. Such waivers shall be made 1632 available by Contractor for inclusion in the plan comments during the building permitting process. 1633 If Customers on private roads fail to sign such waivers, Contractor may require such Customer to 1634 receive service at the nearest paved Public Street. 1635 C. Litter Abatement, Spills, and Damages. Contractor shall use due care to prevent damage to roads 1636 and avoid spills or leaks of material placed for Collection, fuel, and other vehicle fluids while 1637 providing services under this Agreement. If any materials are spilled or leaked by Contractor 1638 during Collection and Transport, Contractor shall within two (2) hours notify the City Contract 1639 Manager of the spill and shall clean up all spills or leaks before leaving the site of the spill. If 1640 Contractor does not clean up litter within eight (8) business hours after notice by the City or 1641 Customer, and liquid spillage within two (2) hours after notice by the City, Contractor shall 1642 reimburse the City for all reasonable costs incurred by the City in the cleanup of all litter and/or 1643 liquid spillage caused by Contractor in the performance of this Agreement. In addition, failure by 1644 Contractor to notify City of spills within two (2) hours of Contractor observance, and failure by 1645 Contractor to clean up spills, shall result in Liquidated Damages pursuant to Exhibit F. Contractor 1646 shall not knowingly Transport any Compactor that is leaking and shall notify the Customer, 1647 pursuant to Section 4.10.3, that service of the Compactor cannot be performed. Contractor shall 1648 immediately notify the City Contract Manager if any Compactor is not serviced due to leakage. 1649 Contractor shall notify the City Contract Manager on the same Business Day of any Contractor 1650 vehicle accidents and/or property damage that occurs while Contractor performs services, except 1651 damage solely to Contractor’s property. Contractor shall initiate its insurance damage claim 1652 process within two (2) Business Days from when the incident occurred, and Contractor shall 1653 provide a copy of all such claims to the City Contract Manager within two (2) days of submitting 165
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December 3, 2020 -42- City of Cupertino/Recology Franchise Agreement 1654 the claim, except damage solely to Contractor’s property. Should Contractor fail to timely 1655 complete repairs or replacements required by property damage caused by Contractor and City 1656 initiates corrective actions, Contractor shall reimburse the City for all reasonable costs incurred 1657 by the City in the repairs or replacements necessitated by such property damage. 1658 Spills, leaks, litter, and damage that present an imminent threat to stormwater or safety must be 1659 responded to immediately. Additionally, Contractor shall reimburse the fully-loaded labor cost, 1660 including over-time, for the City’s Stormwater Inspector to monitor cleanup of spills in accordance 1661 with the requirements of stormwater pollution prevention regulations. All spills, leaks, and litter 1662 shall be remediated to the satisfaction of the City Contract Manager or his/her designee. 1663 Contractor shall not Transfer loads from one vehicle to another on any public right of way, unless 1664 it is necessary to do so because of mechanical failure, combustion of material in the truck, or 1665 accidental damage to a vehicle.
1666 Contractor shall cover all open Drop Boxes at the pickup location before Transporting materials 1667 to the Approved Facility. Contractor shall, at all times, keep loaded material covered so as to 1668 prevent litter, leakage, or spillage from the Collection vehicle. Collection vehicles shall include 1669 hopper shielding to minimize litter while the contents of the individual Containers are being 1670 unloaded and while the truck is traveling along City right of way. In the event of repeated 1671 occurrences of litter emanating from Collection vehicles or resulting from Collection activity, the 1672 City Contract Manager may require Contractor to implement additional mitigations, at 1673 Contractor’s sole expense.
1674 Contractor shall conduct public outreach to Customers and staff training on and implementation 1675 of best management practices for litter abatement at no extra charge. Such best management 1676 practices include, without limitation:
1677 1. Closing Container lids and right sizing service: Contractor staff will tag overfull Containers with 1678 Courtesy Notices, in accordance with Section 4.10.3.C, which will serve as outreach and 1679 education to the Customer.
1680 2. Outreach to Customer on importance of bagging lightweight materials such as plastic bags, 1681 film plastics, foam peanuts, and other materials that can easily become litter due to their 1682 lightweight nature.
1683 3. Driver training on litter reduction techniques and litter removal best management practices. 1684 4. Affixing signage to the back and side of Contractor trucks, including a phone number for 1685 residents to report material spills.
1686 D. Development and Review of Collection Specifications. Contractor shall work with the City to 1687 maintain standard specifications for Collection Container enclosures at Commercial and Multi1688 Family Premises. These specifications shall ensure that the Collection Container enclosures are 1689 built to provide adequate space and suitable configuration to allow Contractor to safely and 1690 efficiently service Recyclable Materials, Organic Materials, and Solid Waste Containers. 1691 Contractor’s Operations Manager or other appropriately qualified staff shall, upon request by the 1692 City Contract Manager, provide a review of plans for new Multi-Family and Commercial 1693 development or project design drawings. Contractor shall provide comments and 166
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December 3, 2020 -43- City of Cupertino/Recology Franchise Agreement 1694 recommendations resulting from the review in writing within seven (7) Working Days after receipt 1695 of the documents for review. In each review report, Contractor shall comment on the 1696 acceptability of the proposed enclosure arrangements in terms of: i) the adequacy of space for 1697 Recyclable Materials, Organic Materials, and Solid Waste Containers; ii) the accessibility of the 1698 Containers for Collection including whether additional charges (e.g., push/pull) would apply; and, 1699 iii) ease of use by Occupants.
1700 E. No Commingling of Materials. Contractor shall not commingle materials that have been Source 1701 Separated with other materials types (for example, Recyclable Materials that have been properly 1702 placed for Collection shall not be combined with Solid Waste or Organic Materials). The foregoing 1703 shall not apply to contaminated Containers of Source Separated materials that are Collected as 1704 Solid Waste in accordance with this Agreement.
1705 F. Shared Collection Across Jurisdictions. Except as otherwise approved by the City Contract 1706 Manager or permitted by the last sentence of this paragraph, Contractor shall separately Collect 1707 materials generated in the City by City residents and businesses from: 1) materials generated by 1708 educational institutions located within the City (including public school districts serving City 1709 residents and DeAnza College); and, 2) materials collected from governmental jurisdictions other 1710 than the City that are serviced outside of this Agreement. If such commingling is approved, Tons 1711 collected from outside the City service area shall be subtracted from the reported Tons Collected 1712 in the City service area by use of estimated Tonnages. In order to achieve accurate estimates, 1713 Contractor shall, at least once per year, arrange to collect materials from all approved non-City 1714 service areas independently for a minimum of one week for the purposes of weighing the 1715 materials by stream or shall provide other data or allocation methods that provide the City 1716 reasonable assurance of accuracy. City hereby approves commingling of the material described 1717 in clause (1) above, including from educational institutions located outside City, but serviced on 1718 the same Route, provided that the Tonnages are reasonably allocated and the annual weighing is 1719 done as provided in this paragraph.
1720 5.4 TRANSFER AND PROCESSING STANDARDS
1721 5.4.1 Equipment and Supplies
1722 Contractor shall equip and operate the Approved Processing Facilities in a manner to fulfill Contractor’s 1723 obligations under this Agreement. Contractor is solely responsible for the adequacy, safety, and suitability 1724 of the Approved Processing Facilities. Contractor shall modify, enhance, and/or improve the Approved 1725 Processing Facilities as needed to comply with its obligations under this Agreement. 1726 Contractor shall provide all rolling stock, stationary equipment, material storage containers, spare parts, 1727 maintenance supplies, Transfer, Transport, and Processing equipment, and other consumables as 1728 appropriate and necessary to operate the Approved Processing Facilities and provide all services required 1729 by this Agreement. Contractor shall place the equipment in the charge of competent operators. 1730 Contractor shall repair and maintain all equipment at its own cost and expense. 1731 5.4.2 Scales and Weighing
1732 Contractor is solely responsible for ensuring accurate weighing of all materials entering and leaving the 1733 Approved Processing Facilities.
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December 3, 2020 -44- City of Cupertino/Recology Franchise Agreement 1734 A. Facility Scales. Contractor shall maintain State-certified motor vehicle scales in accordance with 1735 applicable Federal, State, and local laws and regulations. All scales shall be linked to a centralized 1736 computer recording system at the Approved Processing Facilities to record weights for all 1737 incoming and outgoing materials. Should Contractor’s usual scales not be available for whatever 1738 reason, Contractor shall within two (2) Business Days arrange for use of substitute portable scales, 1739 obtain a backup generator for its usual scales, or weigh vehicles at nearby Contractor-Affiliated 1740 facilities. Pending such measures, Contractor shall, as necessary, estimate the Tonnages of 1741 materials delivered to and Transported from the Approved Processing Facilities, on the basis of 1742 delivery vehicle and Transfer trailer volumes, tare weights, and/or other available facility weight 1743 records. These estimates shall take the place of actual weights while scales are inoperable, and 1744 shall be identified as estimates in electronic records and reporting. 1745 B. Tare Weights. Where tare weights are used, Contractor shall electronically record the tare weight, 1746 identify vehicle as Contractor owned, and provide a distinct vehicle identification number for each 1747 vehicle. Contractor shall provide the City with a report listing the vehicle tare weight information 1748 upon request. Contractor shall promptly weigh additional or replacement vehicles prior to placing 1749 them into service. Contractor shall check tare weights at least annually, or within fourteen (14) 1750 calendar days after a City request, and shall re-tare vehicles immediately after any major 1751 maintenance or service event. If tare weighs are not used, Contractor shall weigh the loaded and 1752 unloaded weight of the vehicle.
1753 C. Testing. Contractor shall ensure that all scales are tested and calibrated in accordance with 1754 applicable Federal, State, and local laws and regulations, but at least every twelve (12) months or 1755 upon City request.
1756 D. Records. Contractor shall maintain computerized scale records and reports that provide 1757 information including date of receipt, inbound time, inbound and outbound weights of vehicles, 1758 and vehicle identification number. Contractor shall also maintain computerized scale records and 1759 reports providing historical vehicle tare weights for each vehicle and the date and location for 1760 each tare weight recorded.
1761 E. Upon-Request Reporting. If vehicle receiving and unloading operations are recorded on video 1762 cameras at the Approved Processing Facilities, Contractor shall (unless the videos have been 1763 deleted per Contractor’s standard practice) make those videos available for City review during the 1764 Approved Processing Facility’s operating hours, upon request of the City, and shall provide the 1765 name of the driver of any particular load if available. 1766 5.5 COLLECTION VEHICLE REQUIREMENTS
1767 A. General. Contractor shall provide a fleet of Collection vehicles sufficient in number and capacity 1768 to efficiently perform the work required by the Agreement in strict accordance with its terms. 1769 Contractor shall have available sufficient back-up vehicles for each type of Collection vehicle used 1770 to respond to scheduled and unscheduled maintenance, service requests, Complaints, and 1771 emergencies. All such vehicles shall have watertight bodies designed to prevent leakage, spillage, 1772 or overflow. All such vehicles newly-purchased under this Agreement shall meet on-road heavy 1773 duty vehicle emissions requirements for model year 2020, regardless of the actual model year of 1774 Contractor’s vehicles. All Collection vehicles shall be registered with the Department of Motor 168
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December 3, 2020 -45- City of Cupertino/Recology Franchise Agreement 1775 Vehicles, and comply with all Federal, State, and local laws and regulations. Contractor’s vehicles 1776 shall utilize Recycled motor oil to the extent practicable. 1777 In accordance with Section 5.3 (Collection Standards) and Exhibit F, Collection vehicles shall 1778 include hopper shielding to minimize litter while the contents of the individual Containers are 1779 being unloaded and while the truck is traveling along the City right of way. 1780 Beginning February 1, 2022 and every year thereafter, the City and Contractor shall meet and 1781 confer to discuss available clean technology for Collection vehicles with the intention of lowering 1782 greenhouse gas emissions in the City and improve air quality in accordance with the goals of the 1783 City’s Climate Action Plan.
1784 B. Vehicle Age. Contractor shall replace vehicles in accordance with the vehicle replacement 1785 schedule included in Contractor’s Proposal.
1786 C. Vehicle Fuel. All Collection vehicles used by Contractor under this Agreement shall be powered 1787 by renewable diesel.
1788 D. Vehicle Capability. Collection vehicles shall have the capability of carrying and safely Transporting 1789 empty and full Used Oil Recovery Kits, as well as the capacity to Collect and Transport loose 1790 Cardboard overages, to ensure that Contractor is capable of complying with Exhibit B. Each vehicle 1791 shall also include an appropriate spill kit to contain at a minimum the amount of vehicle fluids for 1792 each truck and tools to begin clean-up in advance of a coordinated spill response service vehicle. 1793 Quarterly inspections of the spill kit shall be done by Contractor, and driver training shall be done 1794 at least once every twelve (12) months. Documentation of inspections and training shall be made 1795 available to the City upon demand.
1796 Collection vehicles shall have appropriate safety markings including, but not limited to, highway 1797 lighting, flashing and warning lights, clearance lights, and reflective tap striping, in accordance 1798 with the California Vehicle Code.
1799 E. Vehicle Appearance. Collection vehicles shall present a clean appearance while providing service 1800 under this Agreement, and shall be washed or repainted as necessary to maintain a positive public 1801 image. Vehicles used in Collection shall be thoroughly washed at a minimum of one (1) time per 1802 week, and thoroughly steam cleaned on a regular basis so as to present a clean appearance and 1803 minimize odors. All vehicles shall be painted on a regular schedule, with concurrence of the City 1804 (not to be unreasonably withheld), to maintain a clean, professional, new-like appearance. The 1805 City Contract Manager may, at any time, require the painting of any vehicle that has not been 1806 painted according to the schedule. City Contract Manager may require painting of up to two (2) 1807 vehicles per year that do not present a satisfactory appearance, regardless of whether they have 1808 been painted according to the schedule , as long as the vehicles are not scheduled to be replaced 1809 in the next twelve (12) months. By the end of 2021, Contractor shall repaint Collection vehicles 1810 used in City bearing the “Norcal” logo and coloring. The vehicles shall be painted in a uniform 1811 manner and consistent with Contractor colors; although Solid Waste, Recycling, and Organic 1812 Material vehicles may have different painting schemes. All graffiti shall be removed immediately. 1813 The City may inspect vehicles at any time to determine compliance with sanitation requirements. 1814 Contractor shall make vehicles available to the County Health Department for inspection at any 1815 frequency it requests.
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December 3, 2020 -46- City of Cupertino/Recology Franchise Agreement 1816 Contractor's name and local telephone number shall be displayed on all vehicles in at least four 1817 (4) inch characters. All vehicles shall be equipped with sign board holders or other hardware to 1818 allow public education signage of no less than thirty-six (36) by forty-eight (48) inches to be 1819 displayed on both sides of the vehicle.
1820 F. Inspections. Contractor shall inspect each vehicle daily to ensure that all equipment is operating 1821 properly and that all safety features and functions of the vehicle are working. Vehicles that are 1822 not operating properly in any manner or for any reason shall be taken out of service until they are 1823 repaired and operate properly. Contractor shall repair, or arrange for the repair of, all of its 1824 vehicles and equipment for which repairs are needed because of accident, breakdown, or any 1825 other cause so as to maintain all equipment in a safe and operable condition. Contractor shall 1826 maintain a maintenance log for all Collection vehicles and shall make the log available upon 1827 request for City review. The maintenance log shall at all times be accessible to the City Contract 1828 Manager within three (3) calendar days after such a request. The City Contract Manager may 1829 inspect vehicles at any reasonable time, within three (3) calendar days after such a request, to 1830 determine compliance with sanitation requirements. 1831 G. Noise. All Collection operations shall be conducted as quietly as reasonably possible and shall 1832 conform to applicable Federal, State, County, and City noise level regulations, including the City 1833 noise ordinance. The City may request Contractor to test any piece of equipment for conformance 1834 with the noise limits in response to Complaints and/or when the City Contract Manager believes 1835 it is reasonable to do so. At the request of City, all vehicles shall be noise tested, and the results 1836 reported to the City. The cost of any noise testing shall be treated as an “other adjustment,” unless 1837 such test determines that one or more vehicle were out of compliance. 1838 5.6 CONTAINER REQUIREMENTS
1839 A. Containers Provided to Customers. On or before the Commencement Date, Contractor shall 1840 provide Customers (including Single-Family, Multi-Family, Commercial, and City facility 1841 Customers) with Collection Containers as requested by the Customer to meet its desired Service 1842 Level, if the Customer does not already have them. Contractor shall provide Containers to new 1843 Customers requesting service initiation, or existing Customers requesting a Used Oil Recovery Kit 1844 within five (5) Working Days after Contractor’s first receipt of the Customer request. 1845 On the Commencement Date of the Agreement, the Parties understand that a substantial number 1846 of Carts in service at Single-Family Customer Premises are Non-Conforming Carts because they:
1847 (a) are tan in color; (b) do not say “City of Cupertino” or, (c) have logos or identification for other 1848 organizations such as Recology, Norcal, or County of Santa Clara on them. The Contractor shall be 1849 responsible for identifying any and all Non-Conforming Carts and exchanging them for new Carts 1850 that are compliant with the requirements of this Agreement no later than December 31, 2021. 1851 Contractor understands that not all Containers will be set out each week and that some may be 1852 set out relatively infrequently. In accordance with Exhibit D, Contractor shall provide written 1853 updates to the City Contract Manager at least monthly documenting the planning, out of 1854 compliance inventory, production and distribution schedule, and completion date for exchange 1855 of the Non-Conforming Carts. Contractor’s obligation to exchange Non-Conforming Carts is 1856 without respect to the duration of the transition project, number of passes through the City it 1857 takes to completely identify and exchange all Containers, or level of effort associated therewith. 1858 City reserves the right to independently verify compliance. Contractor’s failure to comply with this 170
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December 3, 2020 -47- City of Cupertino/Recology Franchise Agreement 1859 paragraph may result in assessment of Liquidated Damages pursuant to Section 10.6 and Exhibit 1860 F.
1861 Contractor-provided Containers shall be new or refurbished, and shall comply with the Container 1862 standards set forth in this Section.
1863 B. Container Standards
1864 1. All Carts shall be manufactured by injection or rotational molding methods. The Cart handles 1865 and handle mounts may be an integrally-molded part of the Cart body or molded as part of 1866 the lid. The Cart handles shall provide comfortable gripping area for pulling or pushing the 1867 Cart or lifting the lid. Pinch points are unacceptable. Carts provided to Customer shall have a 1868 useful life of ten (10) or more years or more as evidenced by a manufacturer’s warranty or 1869 other documentation acceptable to the City. Container manufacturing specifications shall be 1870 made available to the City upon request.
1871 2. Carts shall remain durable, and at a minimum, shall meet the following durability 1872 requirements to satisfy its intended use and performance, for the Term of this Agreement:
1873 maintain its original shape and appearance; be resistant to kicks and blows; require no routine 1874 maintenance and essentially be maintenance-free; not warp, crack, rust, discolor, or 1875 otherwise deteriorate over time in a manner that shall interfere with its intended use; resist 1876 degradation from ultraviolet radiation; be incapable of penetration by biting or clawing of 1877 household pets (i.e., dogs and cats); the bottoms of Cart bodies must remain impervious to 1878 any damage that would interfere with the Cart’s intended use after repeated contact with 1879 gravel, concrete, asphalt, or any other rough and abrasive surface; all wheel and axle 1880 assemblies are to provide continuous maneuverability and mobility as originally designed and 1881 intended.
1882 3. Carts shall be resistant to common household or Residential products and chemicals; human 1883 and animal urine and feces; and, airborne gases or particulate matter currently present in the 1884 ambient air of the Service Area.
1885 4. All Bins with a capacity of one (1) cubic yard or more shall meet applicable Federal regulations 1886 for Bin safety and be covered with attached lids.
1887 5. Contractor shall obtain the City’s written approval of Container material, design, colors, 1888 labeling, and other specifications (within the specifications set forth in this Agreement) before 1889 acquisition, painting, labeling, or distribution occurs. 1890 6. When purchasing plastic Collection Containers, Contractor shall purchase Containers that 1891 contain a minimum of 30% post-consumer Recycled plastic content, to the extent available 1892 from Cart manufacturers, unless such requirement is waived by the City Contract Manager. 1893 City understands that there is a trade-off between Recycled content and color availability and 1894 that City may have to waive the thirty percent (30%) Recycled content requirement in order 1895 to maintain City-approved Container colors, in accordance with subsection (C). 1896 7. Container lids shall be designed such that the following requirements are met:
1897 a. Prevents the intrusion of rainwater and vectors; 171
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December 3, 2020 -48- City of Cupertino/Recology Franchise Agreement 1898 b. Prevents the emissions of odors;
1899 c. Enables the free and complete flow of material from the Container during the dump 1900 cycle without interference with the material already deposited in the truck body or the 1901 truck body itself and its lifting mechanism;
1902 d. Permits users of the Cart to conveniently and easily open and shut the lid throughout 1903 the serviceable life of the Cart;
1904 e. Hinged to the Cart body in such a manner so as to enable the lid to be fully opened, free 1905 of tension, to a position whereby it may rest against the backside of the Cart body; 1906 f. Prevents damage to the Container body, the lid itself, or any component parts through 1907 repeated opening and closing of the lid by Generators or in the dumping process as 1908 intended;
1909 g. Remains closed in winds up to twenty-five (25) miles per hour from any direction. All 1910 lid hinges must remain fully functional and continually hold the lid in the original 1911 designed and intended positions when either opened or closed or any position between 1912 the two extremes; and,
1913 h. Designed and constructed such that it prevents physical injury to the user while opening 1914 and closing the Cart.
1915 8. Containers shall be stable and self-balancing in the upright position, when either empty or 1916 loaded to its maximum design capacity with an evenly distributed load, and with the lid in 1917 either a closed or an open position. Containers shall be capable of maintaining upright 1918 position in sustained or gusting winds of up to twenty-five (25) miles per hour as applied from 1919 any direction.
1920 9. Containers shall be capable of being easily moved and maneuvered, if applicable, with an 1921 evenly distributed load equal in weight to its maximum design capacity on a level, sloped or 1922 stepped surface.
1923 10. All such Containers shall be one hundred percent (100%) Recyclable at the end of their useful 1924 life.
1925 11. All Containers shall be designed and constructed to be watertight and prevent the leakage of 1926 liquids.
1927 12. Container colors shall be colorfast and resistant to fading as a result of weathering or 1928 ultraviolet degradation.
1929 C. Container Colors. All Containers newly purchased by Contractor after the Effective Date shall 1930 comply with the Container color requirements specified in this Section 5.6, or as otherwise 1931 specified in 14 CCR Section 18982; 14 CCR, Division 7, Chapter 12, Article 3; or other Applicable 1932 Law. The lids and bodies of Carts shall be uniform for each Container type, as follows:
1933 1. Recyclable Materials Cart bodies and lids shall be blue; 172
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December 3, 2020 -49- City of Cupertino/Recology Franchise Agreement 1934 2. Organic Materials Cart bodies and lids shall be green; and 1935 3. Solid Waste Cart bodies and lids shall be grey. 1936 Bins shall match the above color scheme, except that all Bin lids may be black/grey. 1937 C&D Bins and Drop Boxes. Bins and Drop Boxes for Collection of C&D may be in any color, 1938 provided that the colors are consistent with the material-specific Container color requirements, 1939 (green Container for Organic Materials, blue Container for Recyclable Materials, gray Container 1940 for Solid Waste) and provided that the C&D Container colors are consistent for all C&D Containers. 1941 The C&D Container color shall be reviewed and approved by the City. All Bins and Drop Boxes 1942 used for Collection of Source Separated metals or Organic Materials shall have attached lids that 1943 prevent entry of stormwater.
1944 Hardware such as hinges and wheels on the Containers may be a different color than specified 1945 above. All Containers shall comply with these color requirements. 1946 D. Container Labeling. The labeling requirements set forth in this Section 5.6.D shall apply only to 1947 new Containers provided by Contractor to replace existing Containers, or to new Customers, after 1948 July 1, 2021. All labels and other markings on the Containers shall be approved by the City in 1949 advance of ordering of such labels and/or Containers. At a minimum, all Containers shall say “City 1950 of Cupertino,” show the capacity (yards or gallons), contain an identifying inventory or serial 1951 number, and shall not be marked with the Franchisee's or other organizations’ name or logo. 1952 No later than March 1, 2021, the City and Contractor shall meet and confer to finalize Contractor 1953 Container labeling requirements respective to SB 1383. At a minimum, on the lid of each Cart, and 1954 the body of each Bin and Drop Box, Contractor shall label the ultimate destination of such 1955 materials as follows: “LANDFILL” for Solid Waste; “RECYCLE” for Recyclable Materials (including 1956 Cardboard, mixed paper, metal, etc.); and, “COMPOST” for Organic Materials (including Food 1957 Waste, Yard Trimmings, wood waste, etc.). In addition, Containers shall be imprinted or labeled 1958 with text or graphic images that indicate the primary materials accepted and the primary 1959 materials prohibited in that Container. Contractor shall label the Container capacity (in gallons 1960 for Carts, and cubic yards for Bins and Drop Boxes) on the front or side of the body of each Bin or 1961 Drop Box, and on the lid of each Cart. Contractor shall replace Container labels as needed or upon 1962 City direction on a Container-by-Container basis.
1963 1. Prior to ordering any Containers or lids with in-mold labels, Contractor shall submit a sample 1964 of its proposed label, proposed location(s) for placement of labels on each type of Container, 1965 and its labeling plan to the City Contract Manager for approval. 1966 Contractor shall be prohibited from including Contractor’s name and/or logo on any 1967 Containers utilized in the City.
1968 E. Repair and Replacement of Containers; Inventory. Contractor shall be responsible for repairing 1969 or replacing Containers when Contractor determines the Container is no longer suitable for 1970 service; or when the City or Customer requests replacement of a Container that does not properly 1971 function, leaks, is damaged, or is otherwise not fit for service. Contractor shall be responsible for 1972 acquiring and providing the replacement Containers. Contractor shall repair or replace all 1973 damaged or broken Containers within five (5) Working Days after Customer or City request. Minor 173
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December 3, 2020 -50- City of Cupertino/Recology Franchise Agreement 1974 cracks, holes, and other damages to hinges, wheels, axle, hardware, and other component parts 1975 shall be readily repairable by Contractor personnel. All repairs must restore the Cart to its full 1976 functionality to meet the design and performance requirements as set for herein. 1977 Contractor shall maintain a sufficient inventory of Containers to accommodate new Customer 1978 requests for service, requests for change in Service Levels (size, type, or number of Containers) 1979 from current Customers, and requests for replacement due to damage. Contractor is required to 1980 keep accurate count/inventory of Containers used, date of purchase, and date of replacement, 1981 which shall be made available upon request for City review. 1982 Contractor shall provide to Single-Family Customers no less than one (1) free Cart replacement 1983 per any twelve (12) month period upon Customer request. If Customer requests more than one 1984 (1) Cart replacement per any twelve (12) month period, Contractor may charge Customers the 1985 Rate for such additional replacement service. In addition, Single-Family Customers may also 1986 request one Cart size exchange per Rate Period at no charge beyond what Rate change might 1987 result from a change to Cart size. All such Containers shall be provided within five (5) Working 1988 Days after request. Contractor’s failure to comply with the Container requirements may result in 1989 assessment of Liquidated Damages pursuant to Section 10.6 and Exhibit F. 1990 F. Maintenance, Cleaning, Painting. All Containers shall be maintained in a safe, serviceable, and 1991 functional condition and present a clean appearance. Contractor shall repair or replace all 1992 Containers damaged by Collection operations in accordance with standards specified in Section 1993 5.6.E, unless damage is caused by Customer's gross negligence, in which case, Contractor may 1994 charge Customers the Rate for such repair or replacement service. All Containers shall be 1995 maintained in a functional condition.
1996 Contractor shall steam clean and repaint all Containers as needed (other than Carts) so as to 1997 present a clean appearance. Upon Customer request, Contractor shall steam clean Multi-Family 1998 and Commercial Customers’ Bins one (1) time per year at no additional charge. Contractor shall 1999 additionally offer steam cleaning service (or clean Container exchange) to Customers requesting 2000 such service, and may charge Customers the Rate for such cleaning (or Container exchange) 2001 service. Contractor shall steam clean Containers at Contractor’s corporation yard or facility, or at 2002 another location other than at a Customer’s Premises, as approved by the City Contract Manager. 2003 All steam cleaning shall use appropriate wash water capture and treatment. 2004 Contractor shall remove graffiti from Containers within forty-eight (48) hours after identification 2005 by Contractor’s employees or notice by the City Contract Manager or Customer if such graffiti 2006 includes any written or pictorial obscenities, and otherwise within seven (7) calendar days. 2007 Upon request from the City Contract Manager, Contractor shall provide the City with a list of 2008 Containers and the date each Container was painted and maintained. 2009 G. City Ownership of Containers at End of Term. At the end of the Term of this Agreement, all Carts 2010 and Bins purchased and put into service at Customer Premises during the Term of the Agreement 2011 shall become property of the City at no cost to the City if such Containers are fully depreciated. 2012 All Carts and Bins purchased and put into service at Customer Premises during the Term of the 2013 Agreement that have not been fully depreciated shall be available to the City for purchase, at the 2014 City’s option, at a cost reflecting the net book value. 174
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December 3, 2020 -51- City of Cupertino/Recology Franchise Agreement 2015 At its sole discretion, the City may elect not to exercise its purchase option and, in such case, the 2016 Carts and Bins (and any other Contractor-owned Containers and Compactors) shall remain the 2017 property of Contractor at the end of the Term of this Agreement. In such case, Contractor shall 2018 be responsible for outstanding depreciation and for removing all such Containers and Compactors 2019 in service from Customer Premises within fourteen (14) Working Days after the end of the Term, 2020 or within a different timeframe mutually agreed to by the Parties. Contractor shall arrange for 2021 Reuse or Recycling of Containers, and Compactors removed from the City. 2022 5.7 PERSONNEL
2023 A. General. Contractor shall furnish such qualified personnel as may be necessary to provide the 2024 services required by this Agreement in a safe and efficient manner. Contractor shall designate at 2025 least one (1) qualified employee (Contractor’s Contract Manager) as the City’s primary point of 2026 contact with Contractor who is principally responsible for Collection operations and resolution of 2027 service requests and Complaints. Contractor’s Contract Manager shall be empowered to 2028 negotiate on behalf of and bind Contractor with respect to any changes in scope, dispute 2029 resolution, compensation adjustments, and service- related matters that may arise during the 2030 Term of this Agreement.
2031 Contractor shall use its best efforts to ensure that all employees present a neat appearance and 2032 conduct themselves in a courteous manner. Contractor shall not permit its employees to accept, 2033 demand, or solicit, directly or indirectly, any additional compensation, or gratuity from Customers 2034 or members of the public.
2035 The minimum staffing positions to be provided by Contractor to perform the services described 2036 herein to the City are identified in Exhibit H. Failure to consistently maintain these staffing levels, 2037 by position, during the Term of the Agreement shall be considered a material breach. Contractor 2038 shall not be deemed to be in breach of this paragraph if such positions are unfilled for a period 2039 less than four (4) months due to staff turnover, leave, or other ordinary-course employment 2040 contingencies. If Contractor anticipates that such a position may be unfilled for more than four 2041 (4) months due to such reasons, Contractor may present a corrective action plan to the City 2042 Contract Manager showing how the position will be temporarily filled or covered using other 2043 resources. If the plan demonstrates to the City Contract Manager’s reasonable satisfaction that 2044 the position will be adequately filled or covered, then Contractor shall not be in breach of this 2045 paragraph so long as it complies with the plan.
2046 B. Driver Qualifications. All drivers must have in effect a valid license of the appropriate class, issued 2047 by the California Department of Motor Vehicles. Contractor shall use the Class II California 2048 Department of Motor Vehicles employer “Pull Notice Program” to monitor its drivers for safety. 2049 C. Safety Training. Contractor shall provide suitable operational and safety training for all of its 2050 employees who operate Collection vehicles or equipment. Contractor shall train its employees 2051 involved in Collection to identify, and not to Collect, Excluded Waste and Prohibited Container 2052 Contaminants. Upon the City Contract Manager’s request, Contractor shall provide a copy of its 2053 safety policy and safety training program, the name of its safety officer, and the frequency of its 2054 trainings.
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December 3, 2020 -52- City of Cupertino/Recology Franchise Agreement 2055 D. Designated Staff.
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1. Contractor’s Contract Manager. Contractor shall designate one (1) qualified full-time employee as Contractor’s Contract Manager to serve as the City’s primary, day-to-day point of contact with Contractor who is familiar with the Agreement, Collection operations, and resolution of service requests and Complaints. Contractor has named its General Manager as such Person. The Contractor’s Contract Manager shall be available to the City Contract Manager through the use of telecommunication equipment at all times that Contractor is providing Collection services. In the event the Contractor’s Contract Manager is unavailable due to illness or vacation, Contractor shall designate an acceptable substitute who shall be available and who has the authority to act in the same capacity as the Contractor’s Contract Manager. The City understands that the Contractor’s Contract Manager is not authorized to negotiate on behalf of, or to bind Contractor except with regard to normal service issues.

2. Field Supervisor. Contractor shall designate one (1) qualified full-time employee as supervisor of field operations. The designated field supervisor will devote at least fifty percent (50%) of his/her time in the City in the field checking on Collection operations, including responding to Customer requests, inquiries, and Complaints.

3. Waste Zero Specialist. Contractor shall provide two (2) full-time Waste Zero Specialists who are solely dedicated to the City and shall not perform any work related to other jurisdictions, proposals, or business functions of Contractor. Contractorshall hire the Waste Zero Specialists in advance of the Commencement Date. The duties of the Waste Zero Specialists will be focused on public education, community outreach, Commercial and Multi-Family site visits, and technical assistance, and will be substantially as proposed by Contractor in Exhibit G, Contractor’s Proposal, and in Exhibit C, Public Education and Outreach Requirements, and notwithstanding Section 2 of Exhibit C, may also include performing the route reviews contemplated by Sections 4.13 and 4.14, or other SB1383 compliance-related activities set forth in this agreement. The Waste Zero Specialists shall be full-time, regular, professional positions, compensated in accordance with the wages shown in Contractor’s Proposal for such positions. Contractor acknowledgesthat the Waste Zero Specialist role is not intended to be an internship, or entry-level role. The City shall have the option to participate in the hiring and training process of Contractor’s Waste Zero Specialists. The City may also employ corresponding staff member(s) who will work in partnership with Contractor’s Waste Zero Specialists and Contractor’s Waste Zero Specialists shall cooperate and share information openly with City employees.

In the event that Contractor fails to provide a full-time equivalent Waste Zero Specialist for more than four (4) months, Contractor shall remit to the City as Liquidated Damages eight thousand and twenty-eight dollars ($8,028) per un-provided employee for every month (in excess of four (4) months) such employee is not provided, prorated on a daily basis for partial months. Such amount shall be adjusted annually by the same percentage used to adjust Rates in accordance with Exhibit E. For example if, for six (6) months, Contractor assigns the dedicated Waste Zero Specialist to anotherjurisdiction for half of their time, Contractor would remitto the City a minimum of forty eight thousand one hundred sixty-eight dollars ($48,168), assuming no annual adjustment of the amount has occurred. Contractor shall remit such Liquidated Damages payment within fifteen (15) Business Days after a written request by the City. The intent of this payment is for the City to utilize the funds to separately procure equivalent public education services and ensure the contractually agreed upon levels of technical assistance and outreach to Customers. In the event the Waste Zero Specialist position becomes vacant, Contractor may temporarily provide a qualified substitute (e.g., a 2098
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December 3, 2020 -53- City of Cupertino/Recology Franchise Agreement 2099 short-term contractor or a Waste Zero Specialist re-assigned from another Recology area) 2100 while it is conducting its hiring process. In that event, the time devoted by the qualified 2101 substitute to the City shall be considered as Waste Zero Specialist time, provided that such 2102 arrangements do not exceed the four (4) month hiring allowance established by this Section. 2103 Should the temporary arrangements be utilized beyond that four (4) month period, the 2104 months of payments to the City shall be counted from the original date of the vacancy. 2105 E. Key Personnel. Contractor shall make reasonable efforts to maintain the stability and continuity 2106 of Contractor’s staff assigned to perform the services required under this Agreement. Contractor 2107 shall notify the City of any changes in Contractor’s key staff to be assigned to perform the services 2108 required under this Agreement and shall obtain the approval of the City Contract Manager (not 2109 to be unreasonably withheld) of all proposed key staff members who are to be assigned to 2110 perform services under this Agreement prior to any such performance. 2111 Notwithstanding the City’s approval of Contractor’s personnel, Contractor shall not be relieved 2112 from any liability resulting from the work to be performed under this Agreement, nor shall 2113 Contractor be relieved from its obligation to ensure that its personnel maintain all requisite 2114 certifications, licenses, and the like, and Contractor shall ensure that its personnel at all times fully 2115 comply with applicable Federal, State, and local laws and regulations. 2116 At any point during the Term of this Agreement, the City may request, in writing, for good cause, 2117 that any of Contractor’s employees be reassigned such that they no longer perform any work 2118 relating to this Agreement, and shall provide a statement describing the reason for such request. 2119 “Good cause” means that the employee was charged with or convicted of a felony, practiced or 2120 attempted to practice a fraud against the City, or engaged in a gross dereliction of duty in 2121 connection with this Agreement. Within twenty-four (24) hours after Contractor’s receipt of such 2122 request, or such other time agreed to by the City in writing, Contractor shall remove the identified 2123 employee(s) from performing any work related to this Agreement; the vacated position(s) must 2124 be filled by Contractor with a suitable replacement promptly thereafter, and Contractor shall 2125 immediately fill the vacated position with a temporary replacement if required to perform, 2126 without delay, all services required under this Agreement. 2127 5.8 HAZARDOUS WASTE INSPECTION AND HANDLING
2128 A. Inspection Program and Training. Contractor shall develop a load inspection program that 2129 includes the following components: (i) personnel and training; (ii) load checking activities; (iii) 2130 management of wastes; and, (iv) record keeping and emergency procedures. 2131 Contractor’s load checking personnel, including its Collection vehicle drivers, shall be trained in:
2132 (i) the effects of Hazardous Substances on human health and the environment; (ii) identification 2133 of Prohibited Container Contaminants; and, (iii) emergency notification and response procedures. 2134 Collection vehicle drivers shall inspect Containers before Collection when practical and when 2135 suspicious conditions are observed.
2136 B. Response to Excluded Waste Identified During Collection. If Contractor determines that material 2137 placed in any Container for Collection is Excluded Waste or presents a hazard to Contractor's 2138 employees, Contractor shall have the right to refuse to accept such material. Generator shall be 2139 contacted by Contractor in accordance with Section 4.10.3.H. Under no circumstances shall 177
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December 3, 2020 -54- City of Cupertino/Recology Franchise Agreement 2140 Contractor’s employees knowingly Collect Excluded Waste or remove unsafe or poorly 2141 containerized Excluded Waste from a Collection Container. 2142 If Excluded Waste is found in a Collection Container or Collection area that could possibly result 2143 in imminent danger to people or property, Contractor shall immediately notify the Fire 2144 Department and the City Contract Manager.
2145 C. Response to Excluded Waste Identified at Processing or Disposal Facility. Materials Collected by 2146 Contractor will be delivered to the Approved Facilities for purposes of Processing or Disposal. In 2147 the event that load checkers and/or equipment operators at such facility identify Excluded Waste 2148 in the loads delivered by Contractor, such personnel shall remove these materials for storage in 2149 approved, on-site, Excluded Waste storage Container(s). Contractor or the facility operator shall 2150 arrange for removal of the Excluded Wastes at its cost by permitted haulers in accordance with 2151 Applicable Law. Contractor may, at its sole expense, attempt to identify and recover the cost of 2152 Disposal from Generator. If Generator can be successfully identified, Contractor may seek to 2153 recover from Generator the cost of this effort, as well as the cost of Disposal. 2154 5.9 CONTRACT MANAGEMENT
2155 The City has designated staff, the City Contract Manager, to be responsible for the monitoring and 2156 administration of this Agreement. Contractor shall designate an employee to serve as Contractor’s 2157 Contract Manager, to be capable of binding Contractor to decisions made in the management of the 2158 Agreement and who is responsible for working closely with the City Contractor Manager in the monitoring 2159 and administration of this Agreement.
2160 Contractor’s Contract Manager shall meet and confer with the City Contract Manager to implement and 2161 execute the requirements of this Agreement in an efficient, effective, manner that is consistent with the 2162 stated objectives of this Agreement, and to resolve any differences of interpretation. 2163 From time to time the City Contract Manager may designate other agents of the City to work with 2164 Contractor on specific matters. In such cases, those individuals should be considered designates of the 2165 City Contract Manager for those matters to which they have been engaged. Such designates shall be 2166 afforded all of the rights and access granted thereto. 2167 In the event of dispute between the City Contract Manager and Contractor regarding the interpretation 2168 of or the performance of services under this Agreement, the City Contract Manager’s determination shall 2169 be conclusive except (i) as to data or records that Contractor deems constitute proprietary information or 2170 trade secrets, which shall be addressed as provided in Section 6.1, and (ii) where such determination 2171 results in a material impact to Contractor’s revenue and/or cost of operations. In the event a dispute 2172 between the City Contract Manager and Contractor results in such material impact to Contractor, the 2173 provisions of Section 10.9 shall apply. For the purposes of this section, “material impact” is an amount 2174 equal to or greater than fifty thousand dollars ($50,000). 2175 The City Contract Manager or their designate shall have the right to observe and review Contractor 2176 operations and Processing Facilities and enter Premises for the purposes of such observation and review, 2177 including review of Contractor’s records, during reasonable hours with reasonable notice. In no event 2178 shall Contractor prevent access to such Premises for a period of more than three (3) calendar days after 2179 receiving such a request. The City Contract Manager shall be granted access to Contractor’s information 2180 systems and Customer service database in accordance with Section 4.11. 178
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December 3, 2020 -55- City of Cupertino/Recology Franchise Agreement 2181 5.10 ENVIRONMENTALLY-PREFERABLE PURCHASING
2182 Contractor shall, prior to the Commencement Date, develop and implement an “Environmentally 2183 Preferable Purchasing Policy” for office, breakroom and promotional products. Contractor shall require 2184 the purchase of the following items for operations impacting the City of Cupertino:
2185 • Copy Paper: Purchase of 100% post-consumer content (PCC) Recycled content products, including 2186 letter, ledger and legal-sized varieties.
2187 • Misc. Paper: Purchase of minimum 50% post-consumer (PCC) Recycled content products, with 2188 goal to achieve 100% Recycled content, when available (filing folders, mailing envelopes, paper 2189 tablets, notebooks, etc.).
2190 • Paper Towels and Bath Tissue: Purchase minimum 50% Recycled content products, with goal to 2191 achieve 100% Recycled content.
2192 • Janitorial: Purchase natural cleaners and detergents as certified by Green Seal or EcoLogo™. 2193 Contractor shall include a summary of their environmentally-preferable purchasing activities in their 2194 annual report to the City, as described in Exhibit D. 2195 5.11 DIVERSION REQUIREMENTS
2196 A. General. Contractor shall perform services under this Agreement in a manner that supports the 2197 City’s environmental goals. This includes, but is not limited to, providing services, education, and 2198 outreach to Customers and in the community that promote source reduction, Reuse, Recycling, 2199 Composting, and other methods to reduce landfill Disposal. Contractor is expected to suggest 2200 opportunities for Customers to reduce their Solid Waste Service Levels and increase the level of 2201 Recyclable Materials and Organic Materials service received whenever applicable. Diversion 2202 calculations shall be reviewed annually. It is the expectation of the City that Diversion, regardless 2203 of how measured, shall increase each year.
2204 B. Tonnage Diversion. The Diversion percentage shall be calculated as total Tons Diverted in a 2205 calendar year divided by total Tons Collected by Contractor under this Agreement in the calendar 2206 year, provided, however, that C&D Collected by Contractor, and materials Collected by Contractor 2207 in Drop Boxes as part of special cleanouts, shall be excluded from the Diversion percentage 2208 calculation (numerator and denominator). Subject to the foregoing exclusion, “total Tons 2209 Diverted” means (a) total Tons Collected by Contractor under this Agreement that is delivered to 2210 a Processing Facility for Processing, Recycling, Composting and/or Reuse, excluding Processing 2211 Residue that is Disposed, plus (if not already included in clause (a)) (b) total Tons of:
2212 • Mattresses, white goods, Used Motor Oil and Filters, batteries and CFLs, collected by 2213 Contractor and sent for Processing;
2214 • Material Diverted through Contractor’s distribution of home Composting kits (calculated as 2215 0.25 Tons per year of Organic Material Diverted for each household that is provided a kit at 2216 one of Contractor’s home Composting classes);
2217 • Material Diverted by Contractor through Environmental Days; 2218 • Edible Food donations by third parties, substantiated by Contractor; 179
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December 3, 2020 -56- City of Cupertino/Recology Franchise Agreement 2219 • Clothing donations, where Contractor received the material and arranged donation to a non2220 profit; 2221 • Food Scraps Collected and Transported for lawful use as animal feed pursuant to Section 1.2.F, 2222 substantiated by Contractor.
2223 The Tonnage Diversion percentage shall be calculated using the above methodology. The Parties 2224 mutually agree to designate the period of February 1, 2021 through December 31, 2021 as the 2225 “Tonnage Baseline Diversion Percentage.” In each subsequent calendar year, Contractor shall 2226 maintain at least the Tonnage Baseline Diversion Percentage. If Contractor fails to do so, then City 2227 may impose Liquidated Damages as provided in Exhibit F, and notwithstanding any other 2228 provision of this Agreement, such Liquidated Damages shall be City’s sole remedy for such failure. 2229 In accordance with the City’s zero waste policy, steadfast and ongoing efforts are required of the 2230 City’s franchisee to reach and maintain a minimum Residential and Commercial Tonnage waste 2231 Diversion rate of seventy-five percent (75%) with a goal of reaching and maintaining eighty 2232 percent (80%) by 2025 as calculated using CalRecycle’s Diversion rate equivalent formula, which 2233 is based on the per capita reporting-year calculation results provided by CalRecycle during the 2234 annual reporting process.
2235 C&D Diversion requirements are specified in 4.5.A.4. 2236 C. Subscription-Based Diversion. Contractor shall classify Commercial and Multi-Family Customers 2237 according to the SIC codes set forth in Exhibit L. 2238 Customer subscription level data for the period February 1, 2021 through December 31, 2021, 2239 shall be used to establish the “Subscription Baseline Diversion Percentage.” In each subsequent 2240 calendar year, Contractor shall maintain at least the Subscription Baseline Diversion Percentage. 2241 Contractor shall prepare Diversion reports in Excel in the format included in Exhibit L or as 2242 otherwise agreed with the City, and submit them as part of Contractor’s monthly report. 2243 ARTICLE 6.
2244 RECORD KEEPING AND REPORTING
2245 6.1 RECORD KEEPING
2246 Contractor shall maintain Customer contact data, Customer service, accounting, statistical, operational, 2247 programmatic, and other records, and associated documentation, related to its performance as shall be 2248 necessary to provide detailed and accurate reports under this Agreement, and to demonstrate compliance 2249 with this Agreement and Applicable Law. Unless otherwise required in this Article, Contractor shall retain 2250 all records and data required to be maintained by this Agreement in an accessible location and condition 2251 (which may include in the cloud) for the Term of this Agreement plus five (5) years after its expiration or 2252 earlier termination unless the City agrees to earlier disposition and except as provided below. Records 2253 and data shall be in chronological and organized form that is readily and easily interpreted to facilitate the 2254 flexible use of data to structure reports. Contractor’s records shall be stored in one or more central 2255 locations, physical or electronic, that can be readily accessed by Contractor. At a mutually agreed upon 2256 time during normal business hours, but within five (5) Working Days after a written request by the City 180
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December 3, 2020 -57- City of Cupertino/Recology Franchise Agreement 2257 Contract Manager, Contractor shall make available to City all data and records: (i) required to be 2258 maintained under this Agreement; (ii) with respect to the matters covered by this Agreement; or, 2259 (iii) necessary for the City to fulfill obligations under Applicable Law in connection with this Agreement 2260 including, but not limited to, AB 939, AB 341, AB 1826, AB 876, AB 901, SB 1383, and other current or 2261 future Federal, State, or local regulations, as amended. Contractor shall permit the City, or its designee, 2262 to audit, examine, and make excerpts or transcripts from such data and records. Contractor shall maintain 2263 adequate record security to preserve records from events that can be reasonably anticipated such as a 2264 fire, theft, and an earthquake. Electronically-maintained data and records shall be protected and backed2265 up. To the extent that Contractor utilizes its computer systems to comply with record keeping and 2266 reporting requirements under this Agreement, Contractor shall, on a monthly basis, save all system2267 generated reports supporting those record keeping and reporting requirements in a static format (e.g., 2268 PDF) in order to provide an audit trail for all data required. 2269 If City requests Contractor data or records that constitute proprietary information or trade secrets, then 2270 Contractor may mark such information as “confidential” or “proprietary.” City shall keep any information 2271 so marked confidential to the maximum extent permitted by applicable Federal, State, and local laws and 2272 regulations. If City receives a request for disclosure of such information, under applicable public records 2273 disclosure laws, City shall promptly notify Contractor in writing of such request, prior to any disclosure of 2274 such information by City. Within five (5) days of receiving City's notice, Contractor shall respond to City in 2275 writing, indicating whether the requested information should be disclosed or defended as exempt from 2276 disclosure under such laws. Contractor shall have the right to mount such defense at its own cost, 2277 including by filing suit in a court of competent jurisdiction. If Contractor does file such a suit, City agrees 2278 not to disclose such information except in accord with a judgment or order of the court, an agreement of 2279 the Parties, or as otherwise required by applicable Federal, State, and local laws and regulations. 2280 Eighteen (18) months prior to the termination date of this Agreement, and within ten (10) Working Days 2281 after a request by the City, including periodic requested updates prior to a transition, Contractor shall 2282 provide the City a complete record of their Customer lists, Service Levels, and routing on a computer disk 2283 or other format approved by the City’s Contract Manager in software mutually agreed upon by both the 2284 City and Contractor.
2285 The City views its ability to defend itself against Comprehensive Environmental Response, Compensation 2286 and Liability Act (CERCLA), and related litigation, as a matter of great importance. For this reason, the City 2287 needs to be able to prove where Collected Recyclable Materials, Organic Materials, Solid Waste, and C&D 2288 are taken for Transfer, Processing, or Disposal. Contractor shall maintain records that can establish where 2289 Recyclable Materials, Organic Materials, Solid Waste, and C&D Collected were Transferred, Processed, or 2290 Disposed. This provision shall survive the expiration or earlier termination of this Agreement. Contractor 2291 shall maintain these records for a minimum of ten (10) years beyond expiration or earlier termination of 2292 the Agreement. Contractor shall provide these records to the City upon request before the end of the 2293 record retention period in an organized and indexed manner. 2294 6.2 REPORT SUBMITTAL REQUIREMENTS
2295 Contractor shall submit monthly reports within forty (40) calendar days after the end of the calendar 2296 month and annual reports no later than sixty (60) calendar days after the end of each calendar year. 2297 Monthly and annual reports shall, at a minimum, include all data and information described in Exhibit D. 181
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December 3, 2020 -58- City of Cupertino/Recology Franchise Agreement 2298 Contractor may propose report formats that are responsive to the objectives and audiences for each 2299 report. The format of each report shall be approved by the City Contract Manager, in their sole discretion. 2300 The City Contract Manager may, from time to time during the Term, review and request changes to 2301 Contractor’s report formats and content and Contractor shall not unreasonably deny such requests. 2302 Contractor shall submit all reports to the City Contract Manager electronically via e-mail using software 2303 acceptable to the City. The City reserves the right to require Contractor to maintain records and submit 2304 the reports required herein through use of a City-selected web-based software platform or cloud-based 2305 reporting system, at Contractor’s expense.
2306 The City reserves the right to require Contractor to modify the structure and/or format of reports and to 2307 provide additional reports or documents as the City Contract Manager reasonably determines to be 2308 required for the administration of this Agreement or compliance with Applicable Law. 2309 6.3 PERFORMANCE REVIEW AND AUDIT
2310 The City may conduct, and Contractor shall cooperate with, two (2) performance reviews and detailed 2311 financial audits, at any point during the Term of this Agreement at the City Contract Manager’s sole 2312 discretion, to verify Contractor has fulfilled its financial and operational obligations under this Agreement. 2313 The purpose of such review and audit may at City discretion include, without limitation, to review 2314 Complaints, billings and establishment of Rates, Routes, and fee payments to the City, and to determine 2315 if Contractor has met the performance standards described in this Agreement (including, without 2316 limitation, direct services provided to Customers as described in Exhibit B, public education and outreach 2317 required in Exhibit C, recordkeeping and reporting as required in Exhibit D, and performance standards 2318 established in Exhibit F). The City may choose to enlist professional service providers to perform such 2319 review and audit. Contractor may not influence or control the City’s selection of professional service 2320 providers nor the specific review items covered by the review. Contractor shall cooperate with the City 2321 and its agents during the review and audit process. If any noncompliance with the Agreement is found, 2322 the City may direct Contractor to correct the inadequacies in accordance with Article 10 of this Agreement. 2323 At the City’s sole option, with at least thirty (30) calendar days’ prior written notification to Contractor, it 2324 may conduct a public hearing at which Contractor shall be present and shall participate, to review 2325 Contractor's performance and quality of service and provide for evaluation of technological and 2326 regulatory changes. The reports required by Exhibit D to this Agreement regarding Customer Complaints 2327 may be utilized as a basis for review as well as any findings from performance review and/or audits. 2328 Performance and service quality review hearings may be scheduled by the City at its discretion throughout 2329 the Term of the Agreement.
2330 ARTICLE 7.
2331 CITY FEES
2332 7.1 FRANCHISE FEE
2333 Contractor proposed, and the City accepted, Contractor payment of a Franchise Fee to be paid from 2334 Contractor’s profit. Contractor shall pay the Franchise Fee in monthly installments in an amount equal to 2335 twelve percent (12%) of Gross Receipts less the Solid Waste Fund Operations Fee paid by Contractor to 2336 the City under Section 7.2 of this Agreement and any other fees paid by Contractor under Section 7.3, if 2337 any. In addition, Contractor has offered, and the City has accepted, the provision of services to City 182
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December 3, 2020 -59- City of Cupertino/Recology Franchise Agreement 2338 facilities under Exhibit B4 and City-sponsored or hosted special events under Section 4.6 at no additional 2339 cost as part of the franchise considerations.
2340 7.2 SOLID WASTE FUND OPERATIONS FEE
2341 Contractor shall pay a Solid Waste Fund Operations Fee to the City each month. The amount of the Solid 2342 Waste Fund Operations Fee shall be one hundred sixteen thousand three hundred forty-four dollars 2343 ($116,344) per month in Rate Period One, one hundred nineteen thousand eight hundred thirty-four 2344 dollars ($119,834) per month in Rate Period Two, and one hundred twenty-three thousand four hundred 2345 twenty-none ($123,429) per month in Rate Period Three. In conjunction with the annual Rate adjustment 2346 process, the City shall determine the amount of the Fee for all subsequent Rate Periods under this 2347 Agreement based on its estimated actual costs for programs and services. This fee is to fund the City's 2348 cost to administer the Franchise Agreement and for Solid Waste-related programs and services, including 2349 staffing, public education materials and events, Recyclable Materials and Organic Materials programs, 2350 street sweeping to clean streets after Curbside Collection of debris, and any other programs that the City 2351 implements to facilitate the safe Disposal or Reuse and Recycling of used material. This fee shall be 2352 considered an allowable cost of business not subject to profit mark-up and may be included in the 2353 adjustment of Rates as described in Exhibit E.
2354 7.3 ADJUSTMENT TO FEES
2355 The City may set other fees or adjust the fees established in this Article from time-to-time during the Term 2356 of this Agreement and such adjustments shall be included in the adjustment of Rates described in Exhibit 2357 E.
2358 7.4 PAYMENT SCHEDULE AND LATE FEES
2359 Within twenty (20) calendar days after the end of each calendar month, during the Term of this 2360 Agreement, and with accompanying documentation in a format approved by the City Contract Manager, 2361 Contractor shall remit to the City the monthly prorated amount of all fees as described in this Article, net 2362 of any City Payments owed Contractor as provided in Sections 8.2.B and 8.2.C. Such fees shall be sent or 2363 delivered to the City Contract Manager. If such remittance is not paid to the City on or before the twentieth (20th 2364 ) calendar day following the end of a calendar month, the amount past due shall be subject 2365 to a delinquency penalty of one and one half percent (1.5%), which attaches on the first day of 2366 delinquency. An additional one and one half percent (1.5%) delinquency penalty shall apply for each 2367 additional month the payment remains delinquent.
2368 Each monthly remittance to the City shall be accompanied by a statement listing the amount of each fee 2369 paid; calculation of each fee; and, statement of Gross Receipts that separately identifies revenues used as 2370 basis for payment of each fee, if applicable, by Customer Type for the period collected from all operations 2371 conducted or permitted by this Agreement. The City Contract Manager may, at any time during the Term, 2372 request a detailed calculation of Gross Receipts that may include, but is not necessarily limited to, the 2373 number of Customers charged at each Service Level and Rate for each billing period. Contractor shall 2374 maintain all supporting documents and calculations for each payment made to the City as required by 2375 Article 6.
2376 The City Contract Manager may, at any time during the Term, perform an audit of Contractor’s billings 2377 and payment of fees under this Agreement. Contractor shall cooperate with the City Contract Manager in 2378 any such audit. Should the City or its agent perform this review and identify billing errors or other errors 183
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December 3, 2020 -60- City of Cupertino/Recology Franchise Agreement 2379 in payment of fees valued at one percent (1%) or more of Gross Receipts for the period reviewed, 2380 Contractor shall, in addition to compensating City for lost fees, reimburse the City’s actual cost of the 2381 review.
2382 7.5 PROCUREMENT REIMBURSEMENT FEE
2383 Within five (5) Business Days after the Effective Date, Contractor shall pay the City two hundred thousand 2384 dollars ($200,000) to reimburse the City for the cost of preparing the RFP, reviewing Contractor’s Proposal, 2385 and negotiating this Agreement. Such amount shall not be included in the calculation or adjustment of 2386 Rates under this Agreement.
2387 7.6 OTHER MONIES DUE TO CITY
2388 Contractor shall retain certification, under the State’s Curbside Supplemental Payment program, to 2389 operate a curbside recycling program in the City, and shall submit all required reports to receive monies 2390 under such State program with respect to recyclables collected by Contractor within the City. Each year, 2391 at its discretion, the City may require Contractor to remit such monies to the City. Should City require such 2392 remittance, City may at its discretion, use some or all of such monies as a credit towards any City Payment 2393 due Contractor as provided in Article 8 and Exhibit E. Contractor’s failure to maintain such certification 2394 and file such reports, within the timelines and content requirements of the program, shall result in 2395 Contractor’s payment of the amount designated by the State for that year directly to the City without the 2396 benefit of Contractor receiving payment from the State program. 2397 ARTICLE 8.
2398 CONTRACTOR'S COMPENSATION
2399 8.1 GENERAL
2400 Contractor’s Compensation for performance of all its obligations under this Agreement shall be the sum 2401 of Gross Receipts and City Payments. Contractor's Compensation shall be the full, entire and complete 2402 compensation due to Contractor pursuant to this Agreement for all labor, equipment, materials and 2403 supplies, Transfer, Processing and Disposal fees, City Fees, taxes, insurance, bonds, overhead, operations, 2404 profit, and all other things necessary to perform all the services required by this Agreement in the manner 2405 and at the times prescribed. Nothing herein shall obligate the City to provide any compensation to 2406 Contractor beyond City Payments.
2407 If Contractor’s actual costs, including fees due to the City, exceed the total of Gross Receipts and City 2408 Payments, Contractor shall not be compensated for the difference. If Contractor’s actual costs, including 2409 fees due to the City, are less than the total of Gross Receipts and City Payments, Contractor shall retain 2410 the difference.
2411 Under this Agreement, Contractor shall have the right to charge and collect from Customers up to the 2412 maximum Rates in Exhibit G3 (as adjusted from time to time in accordance with this Agreement) for 2413 provision of services to Customers. Maximum Rates for Rate Period One are based on Contractor’s 2414 Proposal. Contractor’s proposed costs and operating assumptions for Rate Period One are presented in 2415 Exhibit G2.
2416 The Approved Recyclable Materials Processing Facility shall retain revenues received for the sale of 184
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December 3, 2020 -61- City of Cupertino/Recology Franchise Agreement 2417 Recyclable Materials including California Redemption Value revenues. Such revenues have been 2418 considered in Contractor’s Proposal and City’s approval of maximum Rates for services provided under 2419 this Agreement. Neither Contractor nor the Approved Recyclable Materials Processing Facility are entitled 2420 to funds available through the Department of Resources Recycling and Recovery (CalRecycle) through its 2421 “City/County Payment Program” pursuant to Section 14581(a)(3)(A) of the California Beverage Container 2422 Recycling and Litter Reduction Act. The City Contract Manager may require Contractor to provide 2423 information to assist City in preparing the requests or applications to CalRecycle for disbursement of such 2424 monies to the City.
2425 8.2 CONTRACTOR’S COMPENSATION AND ANNUAL ADJUSTMENTS 2426 A. General. Table 8-1 summarizes how Contractor’s Compensation will be determined for each Rate 2427 Period, assuming no circumstances arise which under the provisions of this Agreement would 2428 require application of the cost-based methodology in Rate Periods that are designated as index2429 based years. 2430 Table 8 -1 Default Method for Determining Contractor Compensation for each Rate Period Rate Period
Default
Rate Adjustment
Methodology
Agreement
Section
City Fees
(Section 7.1 &

7.2)
Other City Fees
(Section 7.3)
Rate Periods 1, 2 & 3 Fixed Rate and City Fee Increases – Refer to Section 8.2.B and Refer to Table 8-2 Contractor Compensation for Rate Periods One, Two and Three Rate Period 4 Cost-Based Refer to Exhibit
E2
Refer to Exhibit
E2 Section 2.D
(1)
Rate Periods 5, 6 & 7 Multi-Index Refer to Exhibit
E1
Refer to Exhibit
E1 Section 2.E
(1)
Rate Period 8 Cost-Based Refer to Exhibit
E2
Refer to Exhibit
E2 Section 2.D
(1)
Rate Periods 9 & 10 Multi-Index Refer to Exhibit
E1
Refer to Exhibit
E1 Section 2.E
(1)
If Agreement extended per Section 2.1
Rate Period 11 Cost-Based Refer to Exhibit
E2
Refer to Exhibit
E2 Section 2.D
(1)
Rate Period 12, 13, 14 & 15 Multi-Index Refer to Exhibit E1
Refer to Exhibit
E1 Section 2.E
(1)
2431 (1) The City may set other fees or adjust the fees established in this Article from time-to-time during the Term of this Agreement. 2432 Contractor’s Compensation for Rate Period One, Two and Three is as specified in Section 8.2.B. 2433 Beginning with Rate Period Four, the City Contract Manager shall be responsible for approving 2434 adjustment to the Contractor’s Compensation as described in this Article and in Exhibit E. 2435 B. Contractor’s Compensation for Rate Periods One, Two, and Three 2436 1. Maximum Rates for Rate Periods One, Two, and Three. Maximum Rates for Rate Period One, 2437 which are presented in Exhibit G3, together with the City Payments for each such Rate Period, 2438 were proposed by Contractor and approved by the City along with the Agreement. Maximum 2439 Rates for Rate Period One shall be effective from February 1, 2021 through January 31, 2022. 185
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December 3, 2020 -62- City of Cupertino/Recology Franchise Agreement 2440 Maximum Rates for Rate Period Two shall be the Maximum Rates for Rate Period One, as 2441 adjusted by the percentage increases set forth in Table 8-2 below. Maximum Rates for Rate 2442 Period Two shall be effective from February 1, 2022 through January 31, 2023. Maximum 2443 Rates for Rate Period Three shall be the Maximum Rates for Rate Period Two, as adjusted by 2444 the percentage increases set forth in Table 8-2 below. Maximum Rates for Rate Period Three 2445 shall be effective from February 1, 2023 through January 31, 2024. Contractor shall provide 2446 Rate Period Two and Three rate tables for City review to ensure mathematical compliance 2447 with the calculation of Contractor Compensation as provided in Table 8-2 of Section 8.2.B. 2448 Table 8 -2 Contractor Compensation for Rate Periods One, Two and Three Service Sector Rate Period 1*
Rate Adjustment
Rate Period 2
Rate Adjustment
Rate Period 3
Rate Adjustment
Single-Family Residential Services:

All Material Streams - Carts 9.7% 9.6% 9.6%
Multi-Family Residential and Commercial:

Solid Waste - Carts and Bins 0.1% 4.7% 5.0%
Multi-Family Residential and Commercial:

Recyclable Materials - Carts and Bins 24.0%** 58.2% 39.0% Multi-Family Residential and Commercial:

Organic Materials - Carts and Bins 0.1% 4.7% 5.0%
Commercial Drop Boxes:

All Material Streams 3.9% 6.5% 5.0%
Rate Period 1 Rate Period 2 Rate Period 3
Annual City Payment to Recology $686,072 $957,082 $840,405 2449 * Rate Period One Rate adjustment is relative to the Rates effective November 1, 2020 and as approved by the City under its 2450 previous agreement with Contractor.
2451 ** Rate Period One establishes a charge for Recyclable Materials Collection service for Multi-Family and Commercial Carts and 2452 Bins of 24.0% of the Rate to service Multi-Family Residential and Commercial Solid Waste Carts or Bins of equivalent size. 2453 2. City Payments for Rate Periods One, Two, and Three. City shall pay Contractor monthly amounts for Rate Periods One, Two, and Three equal to one-twelfth (1/12th 2454 ) of the annual 2455 City Payment amounts show in Table 8-2 above. Such payment shall be effected by Contractor 2456 netting the monthly amount against monthly payments of City Fees. 2457 3. Changes in Rate Periods One, Two and Three. Notwithstanding the foregoing or any other 2458 provision of this Agreement, if before Rate Period Four City (i) sets other City Fees or adjusts 2459 existing City Fees under Section 7.3, (ii) directs or requires Contractor to use a Designated 2460 Facility under Section 3.2, or (iii) initiates a change in scope under Section 3.5, then 2461 Contractor’s Compensation shall be appropriately adjusted to reflect the increased or 2462 decreased costs to Contractor, and the parties shall negotiate such adjustment in good faith. 2463 C. Contractor’s Compensation for Subsequent Rate Periods. Contractor’s Compensation for 2464 subsequent Rate Periods, beginning with Rate Period Four, shall be adjusted annually in 2465 accordance with this Section 8.2 and Exhibit E. For each subsequent Rate Period, calculation of 2466 Contractor Compensation shall include City determination of whether a City Payment is 2467 necessary, and as applicable, the annualized amount of such City Payment for the given Rate 2468 Period. City shall pay the annualized amount of the City Payment to Contractor in equal monthly 2469 installments throughout the given Rate Period, one-twelfth (1/12th) of the annual amount each 2470 month, and such payments shall be effected by Contractor netting the monthly amount against 186
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December 3, 2020 -63- City of Cupertino/Recology Franchise Agreement 2471 monthly payments of City Fees. Regardless of the Rate Period and whether the applicable Rate 2472 adjustment is index-based or cost-based, Contractor may propose that the dollar value of the 2473 calculated adjustment to Contractor’s Compensation be adjusted among sector(s) and/or 2474 material stream(s).
2475 Index-based Rate adjustments, which are described in Exhibit E1, involve use of various cost 2476 adjustment factors (such as the percentage change in the consumer price index and changes in 2477 tonnage and tipping fees) to calculate adjustments to the Rates. The index-based Rate Adjustment 2478 will be the default method used to determine Rates in Rate Periods Five, Six, Seven, Nine, and Ten 2479 (and, if the Term is extended, Twelve, Thirteen, Fourteen, and Fifteen). The index-based Rate 2480 adjustment calculations shall be performed in strict conformance to the procedures described in 2481 Exhibit E1.
2482 Cost-based Rate adjustments, which are described in Exhibit E2, involve review of Contractor’s 2483 actual costs and revenues and projection of costs and revenues for the coming Rate Period. The 2484 cost-based Rate adjustment will be used in Rate Period Four and Eight (and, if the Term is 2485 extended, Eleven). The cost-based Rate adjustment calculations shall be performed in strict 2486 conformance to the procedures described in Exhibit E2. 2487 Notwithstanding the foregoing, the cost-based methodology described in Exhibit E2 shall be used 2488 to set Rates as provided in Sections 3.2, 8.2.D and 8.3 of the Agreement, and the third paragraph 2489 of Section 1 of Exhibit E1.
2490 D. Rate Structure. The City may, at any time during the Term of this Agreement and in its sole 2491 discretion, change the relationship of individual maximum Rates in comparison with other 2492 maximum Rates. Any such changes would occur in conjunction with the annual Rate adjustment 2493 process described in Section 8.2.C or in conjunction with a Rate adjustment resulting from an 2494 extraordinary Rate adjustment in accordance with Section 8.3. Changes to the Rates charged 2495 under the new structure shall be calculated in such a way that the revised Rate structure 2496 generates at least the same amount of total revenue when the current number of accounts at 2497 each Service Level are multiplied by the Rates charged for each Service Level and the total for all 2498 Service Levels are summed. If Contractor can provide evidence reasonably satisfactory to the City 2499 Contract Manager, based on at least six (6) months of data after a change in the Rate structure 2500 under this paragraph, that the change resulted in migration that on an annualized basis resulted 2501 in at least fifty thousand dollars ($50,000) in lost revenue to Contractor, then Contractor may elect 2502 to have the next annual Rate adjustment be a Cost-Based Adjustment pursuant to Exhibit E2. As 2503 part of such adjustment, in addition to establishing Rates for the next Rate Period, Contractor 2504 shall be entitled to recover the Parties’ reasonable good faith estimate of the lost revenue to 2505 Contractor resulting from such migration.
2506 E. Miscellaneous Rates. If at any time during the Term of the Agreement, Contractor determines 2507 the need to add a Rate that does not appear on the Rate schedule in Exhibit G3, Contractor may 2508 propose and the City may approve a maximum Rate. For example, if a Customer requires 2509 Collection of Organic Materials in a fifteen (15) cubic yard Compactor five (5) times per week and 2510 the Rate schedule does not include this level of service, Contractor may propose and the City may 2511 approve a Rate for this level of service. City Council shall approve such Rate prior to Contractor 2512 billing any Customer under that rate.
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December 3, 2020 -64- City of Cupertino/Recology Franchise Agreement 2513 8.3 EXTRAORDINARY RATE ADJUSTMENTS
2514 The City does not guarantee stability in the cost of providing services; changes in facility conditions or 2515 availability of facilities; the Service Levels requested by Customers; the quantity or composition of 2516 materials subject to this Agreement; the business, legal, policy, or regulatory environment in which 2517 Contractor operates; availability of labor; or other similar matters. The Parties acknowledge that these 2518 inputs will be impacted during the Term of the Agreement based on a number of unpredictable factors, 2519 including the state of the economy; the number of residents and the number and type of businesses; 2520 participation levels of Residential and Commercial Customers in Diversion programs; changes in 2521 technology; and impacts of new bans or policies on the use and Disposal of materials, product 2522 stewardship, and extended producer responsibility. City may be directly or indirectly responsible for such 2523 impacts, including through its on-going efforts to increase Diversion. It is understood that Contractor 2524 expressly accepts the risk (and reward) for changes in such factors over the Term, unless other provisions 2525 of this Agreement provide specific consideration for or alternatives related to such factors. 2526 Except as provided in Section 3.2, the sole potential basis for Contractor to seek an extraordinary Rate 2527 adjustment in excess of the annual adjustment described in Section 8.2 shall be either: (A) a Change in 2528 Law after the Effective Date; or (B) City-directed change in scope pursuant to Section 3.5, if the Parties do 2529 not mutually agree on the Rate adjustment as provided in such section. 2530 In either of the above circumstances, Contractor may petition the City for an extraordinary Rate 2531 adjustment to the extent the Change in Law increases Contractor’s costs of performing its obligations 2532 under this Agreement. However, Contractor shall not request an adjustment under this Section 8.3 unless 2533 the total amount requested exceeds fifty thousand dollars ($50,000) in at least one (1) Rate Period. For 2534 purposes of determining whether the threshold is met, Contractor may aggregate the cost of multiple 2535 Changes in Law and/or changes in scope.
2536 Contractor shall prepare an application for the extraordinary Rate adjustment. Such submittal shall be 2537 prepared in compliance with the procedures described in Exhibit E2 and shall provide all information 2538 reasonably requested by the City Contract Manager specific to the nature of the request being made. 2539 Contractor shall pay all reasonable costs incurred by the City, including the costs of outside accountants, 2540 attorneys, and/or consultants, in order to make a determination of the reasonableness of the requested 2541 Rate adjustment. Such costs paid by Contractor shall be recoverable as “other adjustments” in the 2542 adjustment granted under this Section 8.3, or if no such adjustment is granted, the earliest possible annual 2543 Rate adjustment. The application shall clearly document the reason for the proposed adjustment, include 2544 calculation of the proposed Rate adjustments, and provide supporting documentation. 2545 In the event of such an application for extraordinary Rate increase, it is understood that Contractor shall 2546 have the burden of demonstrating to the reasonable satisfaction of the City that the failure of the City to 2547 adjust Rates will result in Contractor’s financial loss or failure to achieve reasonable profitability due to 2548 the Change in Law or City-directed change in scope, where reasonable profitability is the profit level 2549 determined by applying the Operating Ratio to Forecasted Total Annual Cost of Operations as provided in 2550 Exhibit E2. If Contractor meets the above burden, the City shall approve the adjustment of Rates so as to 2551 meet such profit level. Contractor will have to demonstrate financial loss or a failure to achieve reasonable 2552 profitability by allowing for the City Contract Manager review of financial statements and supporting 2553 documentation.
2554 The City Contract Manager shall have the right to request any other information that they, in their sole 2555 but reasonable judgment, determine is necessary to establish the reasonableness or accuracy of 188
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December 3, 2020 -65- City of Cupertino/Recology Franchise Agreement 2556 Contractor’s request for an extraordinary Rate increase. Such information may include, but is not 2557 necessarily limited to, cost of service information required for the City to conduct analysis to satisfy the 2558 requirements of applicable Federal, State, and local laws and regulations related to municipal rate 2559 regulation. Contractor’s failure to fully cooperate in a timely manner with any reasonable request for 2560 information by the City Contract Manager may result in delay in the approval of the request for an 2561 extraordinary Rate adjustment.
2562 For purposes of this Section 8.3: (i) the Transfer, Processing, Composting, or Disposal services provided 2563 under this Agreement that are performed by any subcontractor or Affiliate of Contractor, shall be deemed 2564 to be services performed by Contractor under this Agreement; (ii) the costs incurred by any such 2565 subcontractor or Affiliate in performing such services shall be deemed to be costs of Contractor in 2566 performing this Agreement; and (iii) any Change in Law or City-directed change in scope affecting any such 2567 subcontractor or Affiliate shall be deemed to be a Change in Law or City-directed change in scope affecting 2568 Contractor.
2569 ARTICLE 9.
2570 INDEMNITY, INSURANCE, AND PERFORMANCE
2571 BOND
2572 9.1 INDEMNIFICATION
2573 A. General. Contractor shall indemnify, defend with counsel reasonably acceptable to the City, and 2574 hold harmless (to the full extent permitted by law) the City and its officers, officials, employees, 2575 volunteers, and agents (collectively, “Indemnitees”) from and against any and all claims, liability, 2576 loss, injuries, damage, expense, and costs (including without limitation costs and fees of litigation, 2577 including attorneys’ and expert witness fees and costs) (collectively, “Losses”) of every kind and 2578 description arising out of or in connection with Contractor’s performance under this Agreement, 2579 or its failure to comply with any of its obligations contained in the Agreement, except to the extent 2580 such Losses were caused by the sole negligence or willful misconduct of the City. 2581 B. Excluded Waste. Contractor acknowledges that it is responsible for compliance during the entire 2582 Term of this Agreement with all Applicable Laws. Contractor shall not Collect, store, Transport, 2583 Process, use, or Dispose of any Excluded Waste except in strict compliance with all Applicable 2584 Laws.
2585 In the event that Contractor negligently or willfully mishandles Excluded Waste in the course of 2586 carrying out its activities under this Agreement, Contractor shall at its sole expense promptly take 2587 all investigatory and/or remedial action reasonably required for the remediation of such 2588 environmental contamination. Prior to undertaking any investigatory or remedial action, 2589 however, Contractor shall, if practicable, first obtain the City’s approval of any proposed 2590 investigatory or remedial action. Should Contractor fail at any time to take such action promptly 2591 after notice from City, the City may undertake such action at Contractor’s sole cost and expense, 2592 and Contractor shall reimburse the City for all such expenses within thirty (30) calendar days after 2593 being billed for those expenses, and any amount not paid within that thirty (30) calendar day 2594 period shall thereafter be deemed delinquent and subject to the delinquent fee payment 2595 provision of Section 7.4. These obligations are in addition to any defense and indemnity 189
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December 3, 2020 -66- City of Cupertino/Recology Franchise Agreement 2596 obligations that Contractor may have under this Agreement. The provisions of this Section shall 2597 survive the termination or expiration of this Agreement. 2598 Notwithstanding the foregoing, Contractor’s duties under this Section 9.1.B shall not extend to 2599 any claims arising from the Disposal of Solid Waste at the Designated Disposal Facility, including, 2600 but not limited to, claims arising under CERCLA, unless such claim is a direct result of Contractor’s 2601 negligence or willful misconduct or Contractor owns or operates the Designated Disposal Facility. 2602 C. Environmental Indemnity. Contractor shall indemnify, defend with counsel reasonably 2603 acceptable to City, and hold harmless (to the full extent permitted by law) the Indemnitees from 2604 and against Losses of every kind and description attributable to the negligence or willful 2605 misconduct of Contractor in handling Excluded Waste. 2606 D. Related to AB 939, AB 341, AB 1826, and SB 1383. Contractor’s duty to defend and indemnify 2607 herein includes all fines and/or penalties imposed by CalRecycle, if the requirements of AB 939, 2608 AB 341, AB 1826, and/or SB 1383 are not met with respect to the waste stream Collected, 2609 Transported, and/or Processed by Contractor under this Agreement, and such failure is: (i) due to 2610 the failure of Contractor to meet its obligations under this Agreement; or, (ii) due to Contractor 2611 delays in providing information that prevents Contractor or the City from submitting reports to 2612 regulators in a timely manner.
2613 E. Related to Proposition 218. Should there be a Change in Law, including, but not limited to, a new 2614 judicial interpretation of Article XIII C and D of the California Constitution (commonly Proposition 2615 218), and such Change in Law directly, materially, and adversely impacts Rates for the services 2616 established in accordance with this Agreement, Contractor agrees to meet and confer with the 2617 City to discuss the impact of such Change in Law on either Party’s ability to perform under this 2618 Agreement.
2619 The City shall not be in default of this Agreement if it is determined by a court of competent 2620 jurisdiction that the City lacks the authority to set new maximum Rates or increase maximum 2621 Rates as contemplated under this Agreement, or if a majority protest under Proposition 218 2622 prevents City from doing so. In any such event, Contractor’s obligations under this Agreement 2623 shall be reduced so as to reduce Contractor’s costs of performing this Agreement by a dollar 2624 amount equivalent to the dollar amount of the Rate adjustment that could not be implemented. 2625 The Parties shall negotiate in good faith to determine the change in Contractor’s obligations, and 2626 shall use best efforts to complete such negotiation, and reflect the mutually-agreed changes in a 2627 written amendment to this Agreement, within ninety (90) days after the court decision or majority 2628 protest. The change shall be consistent with the court’s decision, if any, the majority protect, if 2629 any, and applicable Federal, State, and local laws and regulations. 2630 Nothing herein is intended to imply that California Constitution, Articles XIIIC or XIIID, apply to 2631 Rates established for services provided under this Agreement; rather this Section is provided 2632 merely to allocate risk of an adverse judicial interpretation between the Parties. 2633 This provision (i.e., Section 9.1) will survive the expiration or earlier termination of this Agreement 2634 and shall not be construed as a waiver of rights by the City to contribution or indemnity from third 2635 parties.
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December 3, 2020 -67- City of Cupertino/Recology Franchise Agreement 2636 9.2 INSURANCE
2637 A. General Requirements. Contractor shall, at its sole cost and expense, maintain in effect at all 2638 times during the Term of this Agreement not less than the following coverage and limits of 2639 insurance:
2640 B. Coverages and Requirements. During the Term of this Agreement, Contractor shall at all times 2641 maintain, at its expense, the following coverages and requirements. The comprehensive general 2642 liability insurance shall include broad form property damage insurance. 2643 1. Minimum Coverages. Insurance coverage shall be with limits not less than the following:
2644 Comprehensive General Liability – $10,000,000 combined single limit per occurrence for 2645 bodily injury, personal injury, and property damage. 2646 Automobile Liability – $10,000,000 combined single limit per accident for bodily injury and 2647 property damage (include coverage for Hired and Non-owned vehicles). 2648 Workers’ Compensation – Statutory Limits/Employers’ Liability - $1,000,000/accident for 2649 bodily injury or disease.
2650 Employee Blanket Fidelity Bond – $500,000 per employee loss covering dishonesty, forgery, 2651 alteration, theft, disappearance, and destruction (inside or outside). 2652 2. Additional Insured. The City, its officers, officials, employees, volunteers, and agents shall be 2653 named as additional insured on all but the workers’ compensation coverage. 2654 3. Said policies shall remain in force through the life of this Agreement and, shall be payable on 2655 a “per occurrence” basis unless the City’s Risk Manager specifically consents in writing to a 2656 “claims made” basis. For all “claims made” coverage, in the event that Contractor changes 2657 insurance carriers, Contractor shall purchase “tail” coverage or otherwise provide for 2658 continuous coverage covering the Term of this Agreement and not less than three (3) years 2659 thereafter. Proof of such “tail” or other continuous coverage shall be required at any time 2660 that Contractor changes to a new carrier prior to receipt of any payments due. 2661 4. Contractor shall declare all aggregate limits on the coverage before commencing performance 2662 of this Agreement, and the City’s Risk Manager reserves the right to require higher aggregate 2663 limits to ensure that the coverage limits required for this Agreement as set forth above are 2664 available throughout the performance of this Agreement. 2665 5. The deductibles or self-insured retentions are for the account of Contractor and shall be the 2666 sole responsibility of Contractor.
2667 6. Each insurance policy shall provide or be endorsed to state that coverage shall not be 2668 suspended, voided, canceled by either Party, reduced in coverage or in limits except after 2669 endeavoring to provide thirty (30) calendar days’ prior written notice to the City Contract 2670 Manager and ten (10) Business Days for delinquent insurance premium payments). 2671 7. Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A-VII, 2672 unless otherwise approved by the City Risk Manager. 191
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December 3, 2020 -68- City of Cupertino/Recology Franchise Agreement 2673 8. The policies shall cover all activities of Contractor, its officers, employees, agents and 2674 volunteers arising out of or in connection with this Agreement. 2675 9. For any claims relating to this Agreement, Contractor’s Comprehensive General Liability and 2676 Automobile Liability insurance coverage shall be primary, including as respects the City, its 2677 officers, officials, employees, volunteers, and agents. Any insurance maintained by the City 2678 shall apply in excess of, and not contribute with, insurance provided by Contractor’s liability 2679 insurance policy.
2680 10. Contractor shall waive all rights of subrogation against the City, its officers, officials, 2681 employees, volunteers, and agents.
2682 C. Endorsements. Contractor shall provide copies of the following endorsements or other 2683 documentation satisfactory to the City: (1) additional insured endorsement to each liability policy, 2684 explicitly adding each of the additional insureds specified hereunder, (2) waiver of subrogation, 2685 and (3) insurance is primary and not contributing with any other insurance or self-insurance 2686 programs maintained by the City and/or the other additional insureds to each liability policy. 2687 D. Renewals. During the Term of this Agreement, Contractor shall furnish the City Contract Manager 2688 with certificates or original endorsements reflecting renewals, changes in insurance companies, 2689 and any other documents reflecting the maintenance of the required coverage throughout the 2690 entire Term of this Agreement.
2691 E. Workers' Compensation. Contractor shall provide workers’ compensation coverage as required 2692 by State law, and shall comply with Section 3700 of the State Labor Code. 2693 F. Evidence of Coverage. Contractor will deliver to the City Contract Manager certificates of 2694 insurance, original endorsements, schedules and other evidence of coverage required by this 2695 Agreement and/or requested by the City at the following times: (1) on or before the Effective 2696 Date; (2) promptly upon renewal of policies; and, (3) within ten (10) days after the City Contract 2697 Manager’s request. The certificates and endorsements are to be signed by a Person authorized 2698 by that insurer to bind coverage on its behalf. All certificates and endorsements are to be received 2699 by, and are subject to the approval of, the City Risk Manager. 2700 G. Insurance Coverage Requirements for Subcontractors. Unless otherwise approved in advance in 2701 writing by the City Contract Manager, Contractor will ensure either: (1) Contractor is maintaining 2702 insurance required by this Section covering the activities of Subcontractors hereunder; or, (2) 2703 Subcontractors are maintaining their own insurance required by this Section covering their 2704 activities hereunder. At the City Contract Manager’s request, Contractor will promptly provide 2705 copies of evidence of Subcontractor’s coverage.
2706 9.3 PERFORMANCE BOND
2707 Within seven (7) calendar days after the City’s notification to Contractor that the City has executed this 2708 Agreement, Contractor shall file with the City a bond, payable to the City, securing Contractor's 2709 performance of its obligations under this Agreement and such bond shall be renewed annually if necessary 2710 so that the performance bond is maintained at all times during the Term. The principal sum of the bond 2711 shall be four million dollars ($4M) and shall be adjusted to be effective for Rate Period Four (4), Rate 2712 Period Seven (7), and Rate Period Ten (10) so that the bond amount equals three (3) months of the prior 192
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December 3, 2020 -69- City of Cupertino/Recology Franchise Agreement 2713 Rate Period’s annual Gross Receipts. The bond shall be executed as surety by a corporation authorized to 2714 issue surety bonds in the State of California that has a rating of A or better in the most recent edition of 2715 Best’s Key Rating Guide, and that has a record of service and financial condition reasonably satisfactory 2716 to the City. The bond shall be in the form attached as Exhibit I. 2717 ARTICLE 10.
2718 DEFAULT AND REMEDIES
2719 10.1 EVENTS OF DEFAULT
2720 Unless cured as provided in Section 10.2, each of the following shall constitute an event of default. 2721 A. Fraud or Deceit. Contractor practices, or attempts to practice, any fraud or deceit upon the City. 2722 B. Insolvency or Bankruptcy. Contractor becomes insolvent, unable or unwilling to pay its debts 2723 generally as they become due, or upon listing of an order for relief in favor of Contractor in a 2724 bankruptcy proceeding.
2725 C. Failure to Maintain Coverage. Contractor fails to provide or maintain in full force and affect the 2726 workers' compensation, liability, or indemnification coverage as required by this Agreement. 2727 D. Violations of Regulation. Contractor violates any orders or filings of any regulatory body having 2728 authority over Contractor relative to this Agreement, provided that Contractor may contest any 2729 such orders or filings by appropriate proceedings conducted in good faith, in which case no breach 2730 or default of this Agreement shall be deemed to have occurred unless and until the regulatory 2731 body or court determines Contractor violated such order or filing. 2732 E. Violations of Applicable Law. Contractor violates Applicable Law relative to this Agreement. 2733 F. Failure to Perform Direct Services. Contractor ceases to provide Collection, Transportation, or 2734 Processing services, required to be provided by Contractor or its Subcontractors, as required 2735 under this Agreement for a period of two (2) consecutive calendar days or more, for any reason 2736 within the control of Contractor.
2737 G. Failure to Pay or Report. Contractor fails to make any payments to the City required under this 2738 Agreement including payment of City Fees or Liquidated Damages and/or refuses to provide the 2739 City with required information, reports, and/or records in a timely manner as provided for in the 2740 Agreement.
2741 H. Acts or Omissions. Any other act or omission by Contractor that violates the terms, conditions, 2742 or requirements of this Agreement, or applicable Federal, State, and local laws and regulations 2743 and that is not corrected or remedied within the time set forth in the City’s written notice of the 2744 violation or, if Contractor cannot reasonably correct or remedy the breach within the time set 2745 forth in such notice, if Contractor should fail to commence to correct or remedy such violation 2746 within the time set forth in such notice and diligently effect such correction or remedy thereafter. 2747 The time set forth in the City’s notice shall not be less than the applicable period provided for in 2748 Section 10.2.
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December 3, 2020 -70- City of Cupertino/Recology Franchise Agreement 2749 I. False, Misleading, or Inaccurate Statements. Any representation or disclosure made to the City 2750 by Contractor in connection with or as an inducement to entering into this Agreement, or any 2751 future amendment to this Agreement, which proves to be false or misleading in any material 2752 respect as of the time such representation or disclosure is made, whether or not any such 2753 representation or disclosure appears as part of this Agreement; and, any Contractor-provided 2754 report containing a material misstatement, material misrepresentation, or a material omission of 2755 fact or content explicitly defined by the Agreement, excepting non-numerical typographical and 2756 grammatical errors.
2757 J. Seizure or Attachment. Any seizure of, attachment of, or levy on, Contractor’s operating 2758 equipment used in performance of this Agreement.
2759 K. Criminal Activity. Contractor, its officers, managers, or employees are found guilty of criminal 2760 activity related directly or indirectly to performance of this Agreement or any other agreement 2761 held with the City.
2762 L. Assignment without Approval. Contractor transfers or assigns this Agreement without the 2763 expressed written approval of the City unless the assignment is permitted without City approval 2764 pursuant to Section 12.6.
2765 M. Failure to Provide Proposal or Implement Change in Service. Contractor fails to provide a 2766 proposal in response to a City-directed change in scope (pursuant to Section 3.5) or fails to 2767 implement a mutually-approved, City-directed change in scope. 2768 N. Failure to Achieve Processing Standards. Contractor fails to achieve the Processing standards 2769 specified in Sections 4.1 and 4.2, including achievement of minimum Organic Waste recovery 2770 rates, which are essential for the City to achieve SB 1383 compliance. 2771 The City shall make reasonable efforts to provide Contractor written notice of default within seven (7) 2772 calendar days after the City’s first knowledge of Contractor’s default. 2773 10.2 OPPORTUNITY TO CURE
2774 Contractor shall be given ten (10) Business Days after written notification by the City to cure any default 2775 which, in the City Contract Manager’s sole opinion, creates a potential public health and safety threat. 2776 Contractor shall be given ten (10) Business Days after written notification by City to cure any default 2777 arising under Section 10.1.C, E, F, I, and J; however, the City shall not be obligated to provide Contractor 2778 with a notice and cure opportunity if Contractor has committed the same or similar breach/default, and 2779 City provided Contractor written notification of such breach/default, within the previous twenty-four (24) 2780 month period.
2781 Contractor shall be given thirty (30) calendar days after written notification by the City to cure any other 2782 default (which is not otherwise required to be cured within ten (10) Business Days); however, the City 2783 shall not be obligated to provide Contractor with a notice and cure opportunity if Contractor has 2784 committed the same or similar breach/default, and City provided Contractor written notification of such 2785 breach/default, within the previous twenty-four (24) month period. 194
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December 3, 2020 -71- City of Cupertino/Recology Franchise Agreement 2786 Notwithstanding the foregoing, if a breach/default is curable, but Contractor cannot reasonably cure the 2787 breach/default within the above-mentioned time frames, then the cure period shall be extended for a 2788 reasonable period, provided Contractor promptly commences to cure the breach/default and diligently 2789 pursues the cure to completion. However, this paragraph shall not be deemed to limit the first sentence 2790 of this Section 10.2.
2791 10.3 CITY’S REMEDIES IN THE EVENT OF DEFAULT
2792 Upon Contractor’s default, the City has the following remedies in the event of Contractor default:
2793 A. Waiver of Default. The City may waive any event of default or may waive Contractor’s 2794 requirement to cure a default event if the City determines that such waiver would be in the best 2795 interest of the City. The City’s waiver of an event of default is not a waiver of future events of 2796 default that may have the same or similar conditions. 2797 B. Suspension of Contractor’s Obligation. The City may suspend Contractor’s performance of its 2798 obligations if Contractor fails to cure default in the time frame specified in Section 10.2 until such 2799 time Contractor can provide assurance of performance in accordance with Section 10.8. 2800 C. Liquidated Damages. The City may assess Liquidated Damages for Contractor’s failure to meet 2801 specific performance standards pursuant to Section 10.6 and Exhibit F. 2802 D. Termination. In the event that Contractor should default, and subject to the right of Contractor 2803 to cure, in the performance of any provisions of this contract, and the default is not cured within 2804 the time periods specified in Section 10.2, then the City may, at its option, terminate this 2805 Agreement and/or hold a hearing at its City Council meeting to determine whether this 2806 Agreement should be terminated. In the event the City decides to terminate this Agreement, the 2807 City shall serve twenty (20) calendar days’ prior written notice of its intention to terminate upon 2808 Contractor. In the event the City exercises its right to terminate this Agreement, the City may, at 2809 its option, upon such termination, either directly undertake performance of the services or 2810 arrange with other Persons to perform the services with or without a written agreement. This 2811 right of termination is in addition to any other rights of the City upon a failure of Contractor to 2812 perform its obligations under this Agreement.
2813 Contractor shall not be entitled to any further revenues from operations authorized hereunder 2814 from and after the date of termination.
2815 E. Other Available Remedies. The City’s election of one (1) or more remedies described herein shall 2816 not limit the City from any and all other remedies at law and in equity including injunctive relief, 2817 etc.
2818 10.4 POSSESSION OF RECORDS UPON TERMINATION
2819 In the event of termination for an event of default, Contractor shall furnish the City Contract Manager 2820 with immediate access to all of its business records, including without limitation, proprietary Contractor 2821 computer systems, related to its Customers, Collection Routes, and billing of accounts for Collection 2822 services, to the extent required to enable City to perform or have a third party perform the Collection 2823 services contemplated by this Agreement to be performed by Contractor. 195
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December 3, 2020 -72- City of Cupertino/Recology Franchise Agreement 2824 10.5 CITY'S REMEDIES CUMULATIVE; SPECIFIC PERFORMANCE 2825 The City's rights to terminate the Agreement under Section 10.3 and to take possession of Contractor's 2826 records under Section 10.4 are not exclusive, and the City's termination of the Agreement and/or the 2827 imposition of Liquidated Damages shall not constitute an election of remedies. Instead, these rights shall 2828 be in addition to any and all other legal and equitable rights and remedies that the City may have. 2829 By virtue of the nature of this Agreement, the urgency of timely, continuous, and high-quality service; the 2830 lead time required to effect alternative service; and, the rights granted by the City to Contractor, the 2831 remedy of damages for a breach hereof by Contractor is inadequate and the City shall be entitled to 2832 injunctive relief (including but not limited to specific performance). 2833 10.6 PERFORMANCE STANDARDS AND LIQUIDATED DAMAGES
2834 A. General. The Parties find that as of the time of the execution of this Agreement, it is impractical, 2835 if not impossible, to reasonably ascertain the extent of damages that shall be incurred by the City 2836 as a result of a breach by Contractor of its obligations under this Agreement. The factors relating 2837 to the impracticability of ascertaining damages include, but are not limited to, the fact that: (i) 2838 substantial damage results to members of the public who are denied services or denied quality or 2839 reliable service; (ii) such breaches cause inconvenience, anxiety, frustration, and deprivation of 2840 the benefits of the Agreement to individual members of the general public for whose benefit this 2841 Agreement exists, in subjective ways and in varying degrees of intensity which are incapable of 2842 measurement in precise monetary terms; (iii) that exclusive services might be available at 2843 substantially lower costs than alternative services and the monetary loss resulting from denial of 2844 services or denial of quality or reliable services is impossible to calculate in precise monetary 2845 terms; and, (iv) the termination of this Agreement for such breaches, and other remedies are, at 2846 best, a means of future correction and not remedies which make the public whole for past 2847 breaches.
2848 B. Service Performance Standards; Liquidated Damages for Failure to Meet Standards. The Parties 2849 further acknowledge that consistent, reliable Collection services are of utmost importance to the 2850 City and that the City has considered and relied on Contractor's representations as to its quality 2851 of service commitment in awarding the Agreement to it. The Parties recognize that some 2852 quantified standards of performance are necessary and appropriate to ensure consistent and 2853 reliable service and performance. The Parties further recognize that if Contractor fails to achieve 2854 the performance standards, or fails to submit required documents in a timely manner, the City 2855 and its residents and businesses will suffer damages, and that it is, and will be, impractical and 2856 extremely difficult to ascertain and determine the exact amount of damages that the City will 2857 suffer. Therefore, without prejudice to the City’s right to treat such non-performance as an event 2858 of default under this Section, the Parties agree that the Liquidated Damages amounts established 2859 in Exhibit F of this Agreement represent a reasonable estimate of the amount of such damages 2860 considering all of the circumstances existing on the Effective Date, including the relationship of 2861 the sums to the range of harm to the City that reasonably could be anticipated and the 2862 anticipation that proof of actual damages would be costly or impractical. 2863 Contractor agrees to pay (as Liquidated Damages and not as a penalty) the amounts set forth in 2864 the Performance Standards and Liquidated Damages, Exhibit F. 196
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December 3, 2020 -73- City of Cupertino/Recology Franchise Agreement 2865 Before assessing Liquidated Damages, the City shall give Contractor notice of its intention to do 2866 so. The notice will include a brief description of the incident(s) and non-performance. The City 2867 may review (and make copies at its own expense) all information in the possession of Contractor 2868 relating to incident(s) and/or non-performance. The City may, within ten (10) Business Days after 2869 issuing the notice, request a meeting with Contractor. The City may present evidence of non2870 performance in writing and through testimony of its employees and others relevant to the 2871 incident(s) and non-performance. The City Contract Manager will provide Contractor with a 2872 written explanation of their determination on each incident(s) and non-performance prior to 2873 authorizing the assessment of Liquidated Damages under this Section 10.6. The decision of the 2874 City Contract Manager shall be final.
2875 C. Amount. The City may assess Liquidated Damages for each calendar day or event, as appropriate, 2876 that Contractor is determined to be liable in accordance with this Agreement in the amounts 2877 specified in Exhibit F.
2878 D. Timing of Payment. Contractor shall pay any Liquidated Damages assessed by the City within ten 2879 (10) Business Days after the date the Liquidated Damages are assessed. If they are not paid within 2880 the ten (10) Business Day period, the City may proceed against the performance bond required 2881 by the Agreement, treat the failure as a breach under Section 10.1, or all of the above. 2882 10.7 EXCUSE FROM PERFORMANCE
2883 The Parties understand and agree herein that the services provided under this Agreement are essential 2884 to the protection of public health and safety and that Contractor may be required to perform these 2885 services under difficult, adverse, and unforeseen circumstances. Notwithstanding the foregoing, a Party 2886 shall be excused from performing their obligations hereunder (except payment obligations, including any 2887 obligation to pay Liquidated Damages) to the extent and for the period of time it is prevented from so 2888 performing by reason of floods, earthquakes, other acts of nature, fires, epidemic/pandemic, war, civil 2889 insurrection, riots, acts of any domestic governmental body (including judicial action), and other events 2890 arising after the Effective Date that could not with reasonable diligence be controlled or prevented by the 2891 Party affected by the event ( “Force Majeure Events”). However, performance shall only be excused in the 2892 event that the Party requesting relief from performance can specifically demonstrate that it is prevented 2893 from performance of a specific obligation, and shall only be excused from those requirements that it 2894 demonstrates it is prevented from performing and only for such time as it is prevented from performing. 2895 All other performance obligations shall be required to continue. 2896 In the case of labor unrest or job action directed at a third party over whom Contractor has no control, 2897 the inability of Contractor to provide services in accordance with this Agreement due to the unwillingness 2898 or failure of the third party to: (i) provide reasonable assurance of the safety of Contractor's employees 2899 while providing such services; or, (ii) make reasonable accommodations with respect to Container 2900 placement and point of Delivery, time of Collection, or other operating circumstances to minimize any 2901 confrontation with pickets or the number of Persons necessary to make Collections shall, to that limited 2902 extent, excuse performance. The foregoing excuse shall be conditioned on Contractor's cooperation in 2903 performing Collection services at different times and in different locations. Further, in the event of labor 2904 unrest, including but not limited to strike, work stoppage or slowdown, sickout, picketing, or other 2905 concerted job action conducted by Contractor’s employees or directed at Contractor, or a subsidiary, 2906 Contractor shall not be excused from performance. In such case, Contractor shall continue to provide a 2907 reasonably satisfactory level of performance during the pendency thereof, but Contractor shall not be 197
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December 3, 2020 -74- City of Cupertino/Recology Franchise Agreement 2908 required to adhere strictly to the specific requirements of this Agreement regarding Routes, Collection 2909 times or similar matters; provided, however, that in no event shall more than seven (7) calendar days 2910 elapse between Collections for any Customer. Any labor action initiated by Contractor, including but not 2911 limited to a lock-out, shall not be grounds for any excuse from performance and Contractor shall perform 2912 all obligations under this Agreement during the pendency of such Contractor-initiated labor action. 2913 The Party claiming excuse from performance shall, within two (2) calendar days after such Party has notice 2914 of such cause (or, if later, has notice of the impossibility or impracticability of performance), give the other 2915 Party notice of the facts constituting such cause and asserting its claim to excuse under this Section. 2916 If either Party validly exercises its rights under this Section, the Parties hereby waive any claim against 2917 each other for any damages sustained thereby.
2918 The partial or complete interruption or discontinuance of Contractor's services caused by one (1) or more 2919 of the events described in this Article shall not constitute a default by Contractor under this Agreement. 2920 Notwithstanding the foregoing, however, if Contractor is excused from performing Collection services 2921 hereunder for any of the causes listed in this Section for a period of thirty (30) calendar days or more, the 2922 City shall nevertheless have the right, in its sole discretion, to terminate this Agreement by giving ten (10) 2923 Business Days’ prior written notice to Contractor, in which case the provisions of Section 10.4 shall apply. 2924 10.8 RIGHT TO DEMAND ASSURANCES OF PERFORMANCE
2925 The Parties acknowledge that it is of the utmost importance to the City and the health and safety of all 2926 those members of the public residing or doing business within the City who will be adversely affected by 2927 interrupted waste management service, that there be no material interruption in services provided under 2928 this Agreement.
2929 If Contractor: (i) is the subject of any labor unrest including work stoppage or slowdown, sick-out, 2930 picketing or other concerted job action; (ii) appears in the reasonable judgment of the City to be unable 2931 to regularly pay its bills as they become due; or, (iii) is the subject of a civil or criminal judgment or order 2932 entered by a Federal, State, regional or local agency for violation of an applicable Federal, State, and local 2933 laws and regulations, and the City believes in good faith that Contractor's ability to perform under the 2934 Agreement has thereby been placed in substantial jeopardy, the City may, at its sole option and in addition 2935 to all other remedies it may have, demand from Contractor reasonable assurances of timely and proper 2936 performance of this Agreement, in such form and substance as the City believes in good faith is reasonably 2937 necessary in the circumstances to evidence continued ability to perform under the Agreement. If 2938 Contractor fails or refuses to provide satisfactory assurances of timely and proper performance in the 2939 form and by the date required by the City, such failure or refusal shall be an event of default for purposes 2940 of Section 10.1.
2941 10.9 DISPUTE RESOLUTION
2942 In the event of dispute between the City Contract Manager and Contractor regarding the interpretation 2943 of or the performance of services under this Agreement which results in a material impact to 2944 Contractor’s revenue and/or cost of operations, as defined in Section 5.9, the provisions of Section 2945 10.9 shall apply.A. Meet and Confer. In the event of dispute between the Parties regarding 2946 the interpretation of, or the performance of any obligation under, this Agreement which results 2947 in a material impact to Contractor’s revenue and/or cost of operations, the City and Contractor 198
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December 3, 2020 -75- City of Cupertino/Recology Franchise Agreement 2948 agree that they will promptly meet and confer to attempt to resolve the matter between 2949 themselves.
2950 B. Mediation. In the event that the dispute cannot be resolved satisfactorily between the Parties in 2951 accordance with Section 10.9.A, the City and Contractor agree that such dispute shall be 2952 submitted to mandatory, non-binding mediation by a mutually agreed upon independent third 2953 party.
2954 C. Period of Time. Insofar as allowed by applicable Federal, State, and local laws and regulations, 2955 the period of time otherwise applicable for filing claims against the City under applicable Federal, 2956 State, and local laws and regulations shall be tolled during the period of time for which meet and 2957 confer or mediation procedures are pending, in accordance with Sections 10.9.A and 10.9.B. 2958 D. Litigation. Litigation may be commenced only after efforts to resolve the dispute(s) pursuant to 2959 Sections 10.9.A, 10.9.B, and 10.9.C have failed and any necessary administrative claim(s) to City 2960 have been denied.
2961 ARTICLE 11.
2962 REPRESENTATIONS AND WARRANTIES OF
2963 THE PARTIES
2964 The Parties, by acceptance of this Agreement, represents and warrants the conditions presented in this 2965 Article. Contractor is expected to represent and warrant all of the items in Sections 11.1 through 11.9. 2966 City is expected to represent and warrant all of the items in Sections 11.3 through 11.6. 2967 11.1 CONTRACTOR’S CORPORATE STATUS
2968 Contractor is a corporation duly organized, validly existing and in good standing under the laws of the 2969 State. It is qualified to transact business in the State and has the power to own its properties and to carry 2970 on its business as now owned and operated and as required by this Agreement. 2971 11.2 CONTRACTOR’S CORPORATE AUTHORIZATION
2972 Contractor has the authority to enter this Agreement and perform its obligations under this Agreement. 2973 The Board of Directors of Contractor (or the shareholders, if necessary) have taken all actions required by 2974 law, its articles of incorporation, its bylaws, or otherwise, to authorize the execution of this Agreement. 2975 The Person signing this Agreement on behalf of Contractor represents and warrants that they have 2976 authority to do so. This Agreement constitutes the legal, valid, and binding obligation of Contractor. 2977 11.3 AGREEMENT WILL NOT CAUSE BREACH
2978 To the best of Contractor's and the City’s knowledge, after reasonable investigation, the execution or 2979 delivery of this Agreement or the performance by either Party of their obligations hereunder does not 2980 conflict with, violate, or result in a breach: (i) of any applicable Federal, State, and local laws and 2981 regulations; or, (ii) any term or condition of any judgment, order, or decree of any court, administrative 2982 agency or other governmental authority, or any agreement or instrument to which Contractor or the City 2983 is a party or by which Contractor or any of its properties or assets are bound, or constitutes a default 2984 hereunder.
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December 3, 2020 -76- City of Cupertino/Recology Franchise Agreement 2985 11.4 NO LITIGATION
2986 To the best of Contractor's and the City’s knowledge, after reasonable investigation, there is no action, 2987 suit, proceeding or investigation, at law or in equity, before or by any court or governmental authority, 2988 commission, board, agency or instrumentality decided, pending or threatened against either Party 2989 wherein an unfavorable decision, ruling or finding, in any single case or in the aggregate, would:
2990 A. Materially adversely affect the performance by such Party of its obligations hereunder; 2991 B. Adversely affect the validity or enforceability of this Agreement; or, 2992 C. Have a material adverse effect on the financial condition of Contractor, or any surety or entity 2993 guaranteeing Contractor's performance under this Agreement. 2994 11.5 NO ADVERSE JUDICIAL DECISIONS
2995 To the best of Contractor’s and the City’s knowledge, after reasonable investigation, there is no judicial 2996 decision that would prohibit this Agreement or subject this Agreement to legal challenge. 2997 11.6 NO LEGAL PROHIBITION
2998 To the best of Contractor’s and City’s knowledge, after reasonable investigation, there is no applicable 2999 Federal, State, and local laws and regulations in effect on the date that Party signed this Agreement that 3000 would prohibit the performance of either its obligations under this Agreement or the transactions 3001 contemplated hereby.
3002 11.7 CONTRACTOR’S ABILITY TO PERFORM
3003 Contractor possesses the business, professional, and technical expertise to perform all services, 3004 obligations, and duties as described in and required by this Agreement including all Exhibits thereto. 3005 Contractor possesses the ability to secure equipment, facility, and employee resources required to 3006 perform its obligations under this Agreement.
3007 11.8 CONTRACTOR’S INVESTIGATION
3008 Contractor has made an independent investigation and analysis, the results of which are satisfactory to 3009 Contractor, of the conditions and circumstances surrounding the Agreement, its content and preparation, 3010 and the work to be performed by Contractor under the Agreement. The Agreement accurately and fairly 3011 represents the intentions of Contractor, and Contractor enters into this Agreement on the basis of that 3012 independent investigation and analysis.
3013 11.9 STATEMENT AND INFORMATION IN PROPOSAL
3014 Contractor’s Proposal and any supplementary information submitted by Contractor to City for the work 3015 to be performed by Contractor under the Agreement do not contain any untrue statement of a material 3016 fact nor omit any material facts relevant to the ability of Contractor to perform the work under the 3017 Agreement.
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December 3, 2020 -77- City of Cupertino/Recology Franchise Agreement 3018 ARTICLE 12.
3019 OTHER AGREEMENTS OF THE PARTIES
3020 12.1 RELATIONSHIP OF PARTIES
3021 The Parties intend that Contractor shall perform the services required by this Agreement as an 3022 independent Contractor engaged by the City and neither as an officer nor employee of the City, nor as a 3023 partner or agent of, or joint venturer with, the City. No employee or agent of Contractor shall be, or shall 3024 be deemed to be, an employee or agent of the City. Contractor shall have the exclusive control over the 3025 manner and means of performing services under this Agreement, except as expressly provided herein. 3026 Contractor shall be solely responsible for the acts and omissions of its officers, employees, Subcontractors 3027 and agents. Neither Contractor nor its officers, employees, Subcontractors, and agents shall obtain any 3028 rights to retirement benefits, workers' compensation benefits, or any other benefits which accrue to the 3029 City employees by virtue of their employment with the City. 3030 12.2 COMPLIANCE WITH LAW
3031 In the performance of this Agreement, Contractor shall at all times comply with all applicable laws of the 3032 United States, the State, County, and the City and with all applicable regulations promulgated by Federal, 3033 State, regional or local administrative and regulatory agencies, now in force and as they may be enacted, 3034 issued, or amended during the Term.
3035 12.3 GOVERNING LAW
3036 This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the 3037 State.
3038 12.4 JURISDICTION
3039 Any lawsuits between the Parties arising out of this Agreement shall be brought and concluded in the 3040 courts of the County, which shall have exclusive jurisdiction over such lawsuits. With respect to venue, 3041 the Parties agree that this Agreement is made in and will be performed in the County. 3042 12.5 BINDING ON SUCCESSORS
3043 The provisions of this Agreement shall inure to the benefit to and be binding on the successors and 3044 permitted assigns of the Parties.
3045 12.6 ASSIGNMENT
3046 Neither Party shall assign its rights nor delegate or otherwise transfer its obligations under this Agreement 3047 to any other Person without the prior written consent of the other Party. Any such assignment made 3048 without the consent of the other Party shall be void and the attempted assignment shall constitute a 3049 material breach of this Agreement.
3050 For purposes of this Section, "assignment" shall include, but not be limited to: (i) a sale, exchange or other 3051 transfer of substantially all of Contractor's local, regional, and/or corporate assets dedicated to service 3052 under this Agreement to a third party; (ii) a sale, exchange or other transfer of ten (10) percent or more 201
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December 3, 2020 -78- City of Cupertino/Recology Franchise Agreement 3053 of the local, regional, and/or corporate stock, or ownership of Contractor to a third party (other than a 3054 transfer of shares in Contractor by the owner of such shares to a revocable trust for the benefit of his 3055 family or to another owner of shares in Contractor) except that no cumulative sale, exchange, or transfer 3056 of shares may exceed twenty percent (20%) during the Term of the Agreement (other than a transfer of 3057 shares in Contractor by the owner of such shares to a revocable trust for the benefit of his family or to 3058 another owner of shares in Contractor); (iii) any reorganization, consolidation, merger, recapitalization, 3059 stock issuance or re-issuance, voting trust, pooling agreement, escrow arrangement, liquidation or other 3060 transaction to which Contractor or any of its shareholders is a party which results in a change of ownership 3061 or control of ten percent (10%) or more of the value or voting rights in the local, regional, and/or corporate 3062 stock of Contractor; (iv) divestiture of an Affiliate (e.g., trucking company, materials recovery facility, 3063 Transfer station) used by Contractor to fulfill its obligations under this Agreement; and, (v) any 3064 combination of the foregoing (whether or not in related or contemporaneous transactions) which has the 3065 effect of any such transfer or change of local, regional, and/or corporate ownership and/or control of 3066 Contractor. For purposes of this Section, the term "proposed assignee" shall refer to the proposed 3067 transferee(s) or other successor(s) in interest pursuant to the assignment. 3068 Contractor acknowledges that this Agreement involves rendering a vital service to the City's residents and 3069 businesses, and that the City has selected Contractor to perform the services specified herein based on:
3070 (i) Contractor's experience, skill, and reputation for conducting its Recyclable Materials, Organic Materials, 3071 and Solid Waste management operations in a safe, effective, and responsible fashion, at all times in 3072 keeping with applicable waste management laws, regulations, and good waste management practices; 3073 and, (ii) Contractor's financial resources on a local, regional, and/or corporate level to maintain the 3074 required equipment and to support its indemnity obligations to the City under this Agreement. The City 3075 has relied on each of these factors, among others, in choosing Contractor to perform the services to be 3076 rendered by Contractor under this Agreement.
3077 If Contractor requests the City's consideration of and consent to an assignment, the City may deny or 3078 approve such request in its sole and complete discretion. No request by Contractor for consent to an 3079 assignment need be considered by the City unless and until Contractor has met the following 3080 requirements. The City may, in its sole discretion, waive one (1) or more of these requirements. 3081 A. Contractor shall pay the City a transfer fee in the amount of one (1) percent of the Gross Receipts 3082 for the most-recently completed Rate Period.
3083 B. Contractor shall pay the City its actual expenses for attorneys’, consultants’, accountants’ fees, 3084 staff time, and investigation costs necessary to investigate the suitability of any proposed 3085 assignee, and to review and finalize any documentation required as a condition for approving any 3086 such assignment. Such payment shall be required regardless of the ultimate determination of the 3087 City with regard to the approval or denial of the assignment. Upon submittal of Contractor’s 3088 request for assignment to the City, Contractor shall submit an initial deposit of one hundred 3089 thousand dollars ($100,000) for this purpose.
3090 C. Contractor shall furnish the City with reviewed financial statements of the proposed assignee's 3091 operations for the immediately preceding three (3) operating years. 3092 D. Contractor shall furnish the City with satisfactory proof: (i) that the proposed assignee has at least 3093 ten (10) years of Recyclable Materials, Organic Materials, Solid Waste, and C&D management 3094 experience on a scale equal to or exceeding the scale of operations conducted by Contractor 202
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December 3, 2020 -79- City of Cupertino/Recology Franchise Agreement 3095 under this Agreement; (ii) that in the last five (5) years, the proposed assignee has not suffered 3096 any citations or other censure from any Federal, State or local contractor having jurisdiction over 3097 its waste management operations due to any significant failure to comply with State, Federal or 3098 local waste management laws and that the assignee has provided the City with a complete list of 3099 such citations and censures; (iii) that the proposed assignee has at all times conducted its 3100 operations in an environmentally safe and conscientious fashion; (iv) that the proposed assignee 3101 conducts its operations and management practices in accordance with sound waste management 3102 practices in full compliance with all Federal, State, and local laws regulating the Collection, 3103 Transportation, Processing, and Disposal of Recyclable Materials, Organic Materials, Solid Waste, 3104 and C&D including Hazardous Waste; and, (v) that any other information required by the City 3105 demonstrates that the proposed assignee can fulfill the terms of this Agreement in a timely, safe 3106 and effective manner.
3107 E. Contractor shall provide the City with any and all additional records or documentation which, in 3108 the City Contract Manager’s sole determination, would facilitate the review of the proposed 3109 assignment.
3110 Under no circumstances shall any proposed assignment be considered by the City if Contractor is in default 3111 at any time during the period of consideration. If, in the City’s sole determination, there is any doubt 3112 regarding the compliance of Contractor with the Agreement, the City may require an audit of Contractor’s 3113 compliance and the costs of such audit shall be paid by Contractor in advance of the performance of said 3114 audit.
3115 12.7 NO THIRD PARTY BENEFICIARIES
3116 This Agreement is not intended to, and will not be construed to, create any right on the part of any third 3117 party to bring an action to enforce any of its terms. 3118 12.8 WAIVER
3119 The waiver by either Party of any breach or violation of any provisions of this Agreement shall not be 3120 deemed to be a waiver of any breach or violation of any other provision nor of any subsequent breach of 3121 violation of the same or any other provision. The subsequent acceptance by either Party of any monies 3122 which become due hereunder shall not be deemed to be a waiver of any pre-existing or concurrent breach 3123 or violation by the other Party of any provision of this Agreement. 3124 12.9 NOTICE PROCEDURES
3125 All notices, requests, and approvals must be sent in writing to the Persons below, which will be considered 3126 effective on: the date of personal delivery; the date confirmed by a reputable overnight delivery service; 3127 the fifth calendar day after deposit in the United States Mail, postage prepaid, registered or certified; or 3128 the next Business Day following electronic submission:
3129 If to City:
3130 City of Cupertino
3131 Attention: City Manager
3132 10300 Torre Avenue
3133 Cupertino, California, 95014
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December 3, 2020 -80- City of Cupertino/Recology Franchise Agreement 3134
3135 If to Contractor:
3136 Recology Cupertino
3137 Attn: Legal Department
50 California Street, 24th 3138 Floor
3139 San Francisco, CA 94111
3140
3141 The address to which communications may be delivered may be changed from time to time by a notice 3142 given in accordance with this Section.
3143 12.10 REPRESENTATIVES OF THE PARTIES
3144 References in this Agreement to the “City” shall mean the City’s elected body and all actions to be taken 3145 by the City except as provided below. The City may delegate, in writing, authority to the City Contract 3146 Manager and/or to other City officials and may permit such officials, in turn, to delegate in writing some 3147 or all of such authority to subordinate officers. Contractor may rely upon actions taken by such delegates 3148 if they are within the scope of the authority properly delegated to them. 3149 Contractor shall, by the Effective Date, designate in writing a responsible officer who shall serve as the 3150 Contractor’s Contract Manager. The Contractor’s Contract Manager shall be the representative of 3151 Contractor in all matters related to the Agreement and Contractor shall inform the City in writing of such 3152 designation and of any limitations upon his or her authority to bind Contractor. The City may rely upon 3153 action taken by Contractor’s Contract Manager as actions of Contractor unless they are outside the scope 3154 of the authority delegated to him/her by Contractor as communicated to the City. 3155 ARTICLE 13.
3156 MISCELLANEOUS AGREEMENTS
3157 13.1 ENTIRE AGREEMENT
3158 This Agreement is the entire agreement between the Parties with respect to the subject matter hereof 3159 and supersedes all prior and contemporaneous oral and written agreements and discussions. Each Party 3160 has cooperated in the drafting and preparation of this Agreement and this Agreement shall not be 3161 construed against any Party on the basis of drafting. This Agreement may be amended only by an 3162 agreement in writing, signed by each of the Parties hereto. 3163 13.2 SECTION HEADINGS
3164 The article headings and section headings in this Agreement are for convenience of reference only and 3165 are not intended to be used in the construction of this Agreement nor to alter or affect any of its 3166 provisions.
3167 13.3 REFERENCES TO LAWS
3168 All references in this Agreement to laws and regulations shall be understood to include such laws as they 3169 may be subsequently amended or recodified, unless otherwise specifically provided herein. 204
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December 3, 2020 -81- City of Cupertino/Recology Franchise Agreement 3170 13.4 AMENDMENTS
3171 This Agreement may not be modified or amended in any respect except in writing signed by the Parties. 3172 13.5 SEVERABILITY
3173 If any non-material provision of this Agreement is for any reason deemed to be invalid and unenforceable, 3174 the invalidity or unenforceability of such provision shall not affect any of the remaining provisions of this 3175 Agreement, which shall be enforced as if such invalid or unenforceable provision had not been contained 3176 herein.
3177 13.6 COUNTERPARTS
3178 This Agreement may be executed in counterparts, each of which shall be considered an original. 3179 13.7 DEFINITIONS
3180 Unless defined elsewhere in this Agreement, capitalized terms used in this Agreement shall have the 3181 meanings set forth in the definitions contained in Exhibit A. The definitions set forth in Exhibit A shall 3182 govern the interpretation of this Agreement.
3183 13.8 EXHIBITS
3184 Each of the Exhibits identified as Exhibit “A” through “L” is attached hereto and incorporated herein and 3185 made a part hereof by this reference. In the event of a conflict between the terms of this Agreement and 3186 the terms of an Exhibit, the terms of this Agreement shall control. In the event of a conflict between 3187 Exhibit G1 and any other Exhibit(s), such other Exhibit(s) shall control. 3188 IN WITNESS WHEREOF, this Agreement is entered into by the Parties hereto in Santa Clara County, 3189 California on the day and year first above written. 205
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December 3, 2020 -82- City of Cupertino/Recology Franchise Agreement 3190
City of Cupertino
A Municipal Corporation “CITY”
Recology South Bay (d/b/a Recology Cupertino)
“CONTRACTOR”
Darcy Paul Date
Mayor
Signature Date
Salvatore M. Coniglio
Print Name of Signatory
The Foregoing Agreement Has been Reviewed
and Approval Is Recommended: President & CEO
Title of Signatory
Roger Lee Date
Director, Public Works
Signature Date
APPROVED AS TO FORM: Cary Chen
Print Name of Signatory
Corporate Secretary
Heather Minner Date
City Attorney
Title of Signatory
ATTEST:
15838
Kirsten Squarcia Date
City Clerk
City Business License #
Resolution Number ___20-042
Approved by City Council
3191
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EXHIBIT A:

DEFINITIONS
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EXHIBIT A

DEFINITIONS
December 3, 2020 Page A-1 City of Cupertino/Recology Franchise Exhibit A For purposes of this Agreement, unless a different meaning is clearly required, the following words and phrases shall have the following meanings respectively ascribed to them by this Exhibit and shall be capitalized throughout this Agreement:
“AB 341” means the California Jobs and Recycling Act of 2011 (Chapter 476, Statues of 2011 [Chesbro, AB 341]), also commonly referred to as “AB 341”, as amended, supplemented, superseded, and replaced from time to time.
“AB 939” means the California Integrated Waste Management Act of 1989 (Division 30 of the California Public Resources Code), also commonly referred to as "AB 939," as amended, supplemented, superseded, and replaced from time to time.
“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. “Affiliate” means, with respect to any given Person, any other Person that directly or indirectly controls, is controlled by, or is under common control with such given Person. For purposes of this definition, “control” and its variants mean possession of the power to direct or cause the direction of the management and policies of the other Person, whether through ownership of voting securities or equity interests, representation on its governing body, by contract, or otherwise. Affiliates are not third parties. “Agreement” means this franchise agreement (including all exhibits and any future amendments) between the City and Contractor for Recyclable Materials, Organic Materials, and Solid Waste Collection, Recyclable Materials and Organic Materials Processing Services, and Transport for Disposal. “Alternative Daily Cover” or “ADC” has the same meaning as in Section 20690 of Title 27 of the California Code of Regulations.
“Alternative Intermediate Cover” or “AIC” has the same meaning as in Section 20700 of Title 27 of the California Code of Regulations.
“Applicable Law” means all Federal, State, county, City, and local laws, regulations, rules, orders, judgments, degrees, permits, approvals, regulatory guidance, or other requirement of any governmental body having jurisdiction over the Collection, Transportation, Processing, or Disposal of Discarded Materials that are in force on the Effective Date and as may be enacted, issued or amended during the Term of this Agreement. Applicable Law includes, but is in no way limited to, AB 939, AB 341, AB 1826, and SB 1383, as well as all Environmental Laws.
“Approved Facility(ies)” means any one of or any combination of the: Approved Recyclable Materials Processing Facility; Approved Organic Materials Processing Facility; Approved Organic Materials Processing Facility; or Approved Transfer Facility; and/or any Designated Facility(ies). “Approved Organic Materials Processing Facility” means the Blossom Valley Organics – North Composting facility located at 3909 Gaffery Road, Vernalis, CA (as to Commercial and Multi-Family Organic Materials); and, the South Valley Organics Composting facility located at 3675 Pacheco Pass Highway, 208
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EXHIBIT A

DEFINITIONS
December 3, 2020 Page A-2 City of Cupertino/Recology Franchise Exhibit A Gilroy, CA (as to Residential (Single-Family) Organic Materials). Both facilities are owned and operated by a Contractor Affiliate.
“Approved Processing Facility(ies)” means any one of or any combination of the: Approved Recyclable Materials Processing Facility; Approved Organic Materials Processing Facility; or, Approved Transfer Facility.
“Approved Recyclable Materials Processing Facility” means the GreenWaste Recovery Materials Recovery Facility located at 625 Charles Street, San Jose, CA. “Approved Transfer Facility” means the Rogers Avenue Transfer Station located at 1675 Rogers Avenue, Santa Clara, CA, which is owned and operated by Contractor. “Back-Haul” means generating and transporting 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).
“Bin” means a Container with capacity of approximately one (1) to eight (8) cubic yards, with a hinged lid, and with wheels (where appropriate), that is serviced by a front end-loading Collection vehicle, including Bins with Compactors attached to increase the capacity of the Bin. “Bin-by-the-Day” means Bin service for the Collection and Processing of Recyclable Materials and Organic Materials and the Collection and Disposal of Solid Waste. Customers may use Bin-by-the-Day services to Dispose of Bulky Items and oversized Recyclable Materials or Organic Materials that do not fit into a Recyclable Materials Container or an Organic Materials Container. For billing and compensation purposes, all Bin-by-the-Day services are classified as extra services under this Agreement. "Bulky Item" means discarded appliances (including refrigerators, ranges, washers, dryers, water heaters, dishwashers and other similar items commonly known as white goods), furniture, tires, carpets, mattresses, E-Waste, bundled and tied Yard Trimmings and/or wood waste, and similar large items that can be handled by two (2) people, weigh no more than two hundred (200) pounds, and require special Collection due to their size or nature, but can be Collected without the assistance of special loading equipment (such as forklifts or cranes) and without violating vehicle load limits. Bulky Items must be generated by the Customer and at the service address wherein the Bulky Items are Collected. Bulky Items do not include abandoned automobiles, large auto parts, trees, Construction and Demolition Debris, or items herein defined as Excluded Waste.
“Business Days” mean days during which the City offices are open to do business with the public. “California Code of Regulations (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 the CCR).
“CalRecycle” means California's Department of Resources Recycling and Recovery. “Cardboard” means corrugated fiberboard consisting of a fluted corrugated sheet and one or two flat linerboards, as is often used in the manufacture of shipping containers and corrugated boxes. Cardboard is a subset of Recyclable Materials.
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EXHIBIT A

DEFINITIONS
December 3, 2020 Page A-3 City of Cupertino/Recology Franchise Exhibit A “Cart” means a plastic Container with a hinged lid and wheels that is serviced by an automated or semiautomated Collection vehicle. A Cart has capacity of twenty-four (24), thirty-two (32), sixty-four (64), or ninety-six (96) gallons (or similar volumes).
“City” means the City of Cupertino and all the territory lying within its boundaries as presently existing or as such boundaries may be modified during the Term of this Agreement. “City Contract Manager” means the City’s Director of Public Works, who is responsible for the administrative management of this Agreement, or their designee. “City Fees” means all fees payable to the City, identified and referenced in Article 7 of this Agreement. “Change in Law” means any of the following events or conditions:

A. The enactment, adoption, promulgation, issuance, modification, or written change in any Applicable Law, or administrative or judicial interpretation of any Applicable Law, on or after the Effective Date; or,
B. The order or judgment of any judicial or quasi-judicial Federal, State, County, City, or local 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 Contractor, 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.
“Collect” or “Collection” (or any variation thereof) means the act of taking possession of Recyclable Materials, Organic Materials, C&D, Solid Waste, Bulky Items, and other material at the place of generation in the City.
“Commencement Date” means the date specified in Section 2.1 of the Agreement. “Commercial” shall mean of, from, or pertaining to non-Residential Premises including, but not limited to, retail sales, services, wholesale operations, manufacturing, governmental, non-profit, institutional, and industrial operations, but excluding businesses conducted upon Residential property that are permitted under applicable zoning regulations and are not the primary use of the property. Commercial includes a firm, partnership, proprietorship, joint-stock company, corporation, or association, whether for-profit or nonprofit, governmental body, strip mall, or industrial facility, or as otherwise defined in 14 CCR Section 18982(a)(6), with the exception that Multi-Family is excluded from the definition of Commercial for the purposes of this Agreement, and that the definition of Commercial shall not apply to any governmental body that has the legal right to, and does, procure Solid Waste Collection services outside of this Agreement.
“Commercial Edible Food Generator” 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 definition, Food Recovery Organizations and Food Recovery Services are not Commercial Edible Food Generators, or as otherwise specified by 14 CCR Section 18982(a)(7). 210
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EXHIBIT A

DEFINITIONS
December 3, 2020 Page A-4 City of Cupertino/Recology Franchise Exhibit A “Community Composting” means any activity that Composts green material, agricultural material, food material, and vegetative food material, alone or in combination, and the total amount of feedstock and Compost on-site at any one time does not exceed one hundred (100) cubic yards and seven hundred and fifty (750) square feet, as specified in 14 CCR Section 17855(a)(4); or as otherwise defined in 14 CCR Section 18982(a)(8).
“Compactor” means a mechanical apparatus that compresses materials together with the Container that holds the compressed materials or the Container that holds the compressed materials if it is detached from the mechanical compaction apparatus. Compactors include two (2) to eight (8) cubic yard Bin Compactors serviced by front-end loader Collection vehicles and ten (10) to fifty (50) cubic yard Drop Box Compactors serviced by roll-off Collection vehicles.
“Complaint” shall mean each written or orally communicated statement made by any Person, whether to the City and conveyed to Contractor, or directly by Customer to Contractor, alleging: (1) non-performance, or deficiencies in Contractor’s performance, of its duties under this Agreement; (2) a violation by Contractor of this Agreement; or, (3) an SB 1383 Non-Compliance Complaint. “Compost” or “Composting” (or any variation thereof) means the product resulting from the composting process (as defined in 14 CCR Section 17896.2(a)(4)), as well as the composting process itself, consisting of a controlled biological decomposition of Organic Materials yielding a safe and nuisance-free compost product.
“Compostable Plastics” or “Compostable Plastic” means plastic materials that meet the BPI-certified ASTM D6400 standard for Compostability. Compostable Plastics must be labeled as “Compostable” by the manufacturer. Notwithstanding any other provision, Compostable Plastic is excluded from the definitions of Organic Materials and its subcategories and is a Prohibited Container Contaminant, unless otherwise agreed by City and Contractor.
“Construction and Demolition Debris (C&D)” includes discarded building materials, packaging, debris, and rubble resulting from construction, alteration, remodeling, repair, or demolition operations on any pavements, excavation projects, houses, Commercial buildings, or other structures, excluding Excluded Waste. Construction and Demolition Debris includes rocks, soils, tree remains and other Yard Trimmings that result from land clearing or land development operations in preparation for construction. C&D must be Source-Separated, either by segregating mixed C&D materials from other types of material, or by segregating individual types of C&D materials (e.g., wood-only or metal-only loads). “C&D Collection Site(s)” means properties where construction and demolition work is performed as evidenced by the City issuance of a land clearing, building, or demolition permit, or from a non-permitted municipal project or as otherwise stated in the City Municipal Code. “Container(s)” mean Bins, Carts, Compactors, and Drop Boxes. “Contractor” means Recology South Bay (d/b/a Recology Cupertino), organized and operating under the laws of the State.
“Contractor’s Compensation” means the monetary compensation received by Contractor (as described in Article 8) in return for providing services in accordance with this Agreement. 211
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EXHIBIT A

DEFINITIONS
December 3, 2020 Page A-5 City of Cupertino/Recology Franchise Exhibit A “Contractor’s Contract Manager” means the Person designated by the Contractor to be the City’s primary point of contact, primarily responsible for Collection operations and resolution of service requests and Complaints. Contractor’s Contract Manager may negotiate and bind Contractor with respect to changes in scope, dispute resolution, compensation adjustments, and service-related matters. “Contractor’s Proposal” means the proposal submitted to the City by Contractor for provision of Recyclable Materials, Organic Materials, and Solid Waste Collection and Processing services and Solid Waste Transport for Disposal and certain supplemental written materials, which are included as Exhibit G, G1, G2, G3, G4, and G5 to this Agreement and are incorporated by reference. “County” means the County of Santa Clara, a political subdivision of the State of California. “Courtesy Notices” means the notice provided to Customers as described in Section 4.10.3. “Curb” or “Curbside” (or any variation thereof) means the cornered edging between the street and sidewalk of a Public Street. Curb or Curbside also means and describes the location of a Collection Container for pick-up, where such Container is placed on the Public Street against the face of the Curb, or where no Curb exists, the Container is placed not more than five (5) feet from the outside edge of the Public Street nearest the property’s entrance.
“Customer” means the Person whom Contractor submits its billing invoice to and collects payment from for Collection services provided to a Premises. The Customer may be either the Occupant or Owner of the Premises.
“Customer Type” means the Customer’s sector category, consisting of Single-Family, Multi-Family, Commercial, Drop Box, and the City.
“Designated C&D Processing Facility” means the Newby Island Sanitary Landfill, owned and operated by Republic Services Inc., to which Contractor Transports C&D for Processing, and/or any C&D Processing Facility(ies) designated by the City during the Term pursuant to Section 3.2 to which Contractor shall Transfer and/or Transport C&D for Processing.
“Designated Disposal Facility” means the Newby Island Sanitary Landfill, owned and operated by Republic Services Inc., to which Contractor Transports Solid Waste for Disposal, and/or any Disposal Facility(ies) designated by the City during the Term pursuant to Section 3.2 to which Contractor shall Transfer and/or Transport Solid Waste or Residue for Disposal.
“Designated Facility(ies)” means any one of or any combination of the Designated C&D Processing Facility, the Designated Recyclable Materials Processing Facility, or the Designated Disposal Facility. “Designated Recyclable Materials Processing Facility” means a Recyclable Materials Processing Facility(ies) as may be designated by the City during the Term pursuant to Section 3.2 to which Contractor shall Transport Recyclable Materials for Processing in addition to or in lieu of the Approved Recyclable Materials Processing Facility. The City may, at its sole discretion, require that Contractor subcontract to a Designated Recyclable Materials Processing Facility(ies), or may itself directly contract with any Designated Recyclable Materials Processing Facility(ies). 212
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DEFINITIONS
December 3, 2020 Page A-6 City of Cupertino/Recology Franchise Exhibit A “Designated Waste” means non-Hazardous Waste that may pose special Disposal problems because of its potential to contaminate the environment and that 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 23 CCR Section 2522 as may be amended from time to time.
“Discarded Materials” means Recyclable Materials, Organic Materials, Solid Waste, and C&D placed by a Generator in a receptacle and/or at a location for the purposes of Collection by Contractor, excluding Excluded Waste.
“Disposal” or “Dispose” (or any variation thereof) means the final disposition of Solid Waste or Processing Residue at a Disposal Facility.
“Disposal Facility” means a landfill or other facility used for the ultimate Disposal of Solid Waste. “Divert” or “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 pursuant to the provisions of AB 939. “Drop Box” means an open-top Container with a capacity of seven (7) to forty (40) cubic yards that is serviced by a roll-off Collection vehicle.
“Dwelling Unit” means any individual living unit in a Single-Family or Multi-Family structure or building, a mobile home, or a motor home located on a permanent site intended for, or capable of being utilized for, residential living other than a hotel or motel.
“Edible Food” means food intended for human consumption. For the purposes of this Agreement, Edible Food is not Solid Waste 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. “Effective Date” means the date on which the latter of the two Parties signs this Agreement. “Environmental Laws” means all Federal and State statutes, and County, City, and regional agency ordinances concerning public health, safety and the environment including, by way of example and not limitation: AB 341; AB 939; AB 1826; the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. § 9601 et seq. (CERCLA); the Resource Conservation and Recovery Act, 42 U.S.C. § 6902 et seq.; the Federal Clean Water Act, 33 U.S.C. § 1251 et seq.; the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq.; the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq.; the California Hazardous Waste Control Act, California Health and Safety Code § 25100 et seq.; the Carpenter-PresleyTanner Hazardous Substance Account Act, California Health and Safety Code § 25300 et seq.; the PorterCologne 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. 213
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EXHIBIT A

DEFINITIONS
December 3, 2020 Page A-7 City of Cupertino/Recology Franchise Exhibit A “Excluded Waste” means Hazardous Substances, Hazardous Waste, Infectious Waste, Designated Waste, volatile, corrosive, biomedical, infectious, biohazardous, and toxic substances or material, waste that Contractor reasonably believes would, as a result of or upon Disposal, be a violation of local, State or Federal law, regulation or ordinance, including land use restrictions or conditions, waste that cannot be Disposed of in Class III landfills, waste that in Contractor’s reasonable opinion would present a significant risk to human health or the environment, cause a nuisance or otherwise create or expose Contractor or the 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 programs 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. Excluded Waste does not include Used Motor Oil and Filters, compact fluorescent bulbs (CFLs), or household batteries when properly placed for Collection by Contractor as set forth in this Agreement. Notwithstanding any other provision, Excluded Waste is excluded from the definitions of Recyclable Materials, Organic Materials, Solid Waste, C&D, and their respective subcategories.
“Extra Bag Tag(s)” are tags approved by the City and provided by Contractor that may be purchased by Single-Family Customers and affixed to a bag provided by Single-Family Customers for the Collection of Discarded Material overages.
“E-Waste" means discarded electronic equipment including, but not limited to, televisions, computer monitors, central processing units (CPUs), laptop computers, computer peripherals (including external hard drives, keyboards, scanners, and mice), printers, copiers, facsimile machines, radios, stereos, stereo speakers, VCRs, DVDs, camcorders, microwaves, telephones, cellular telephones, and other electronic devices. Some E-Waste or components thereof may be Hazardous Waste or include Hazardous Substances and thus require special handling, Processing, or Disposal. “Federal” means belonging to, or pertaining to, the Federal government of the United States. “Food Recovery” means actions to collect and distribute food for human consumption that otherwise would be disposed, or as otherwise defined in 14 CCR Section 18982(a)(24). “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 as defined in Section 113841 of the Health and Safety code; and,
C. A nonprofit charitable temporary food facility as defined in Section 113842 of the Health and Safety Code.

If the definition in 14 CCR Section 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. 214
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DEFINITIONS
December 3, 2020 Page A-8 City of Cupertino/Recology Franchise Exhibit A “Food Recovery Service” means a Person or entity that collects and transports 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). “Food Scraps" means those Discarded Materials that will decompose and/or putrefy including: (i) all kitchen and table food waste; (ii) animal or vegetable waste that is generated during or results from the storage, preparation, cooking or handling of food stuffs; and (iii) fruit waste, grain waste, dairy waste, meat, bones, and fish waste; and, (iv) vegetable trimmings, houseplant trimmings and other compostable Organic Waste common to the occupancy of Residential dwellings and generated inside such dwellings.

Food Scraps are a subset of Food Waste.
“Food-Soiled Paper” means Compostable paper material that has come in contact with Food Scraps or liquid, such as, but not limited to, Compostable paper plates, paper coffee cups, napkins, pizza boxes, and milk cartons.
“Food Waste” means Food Scraps and Food-Soiled Paper, and excludes Excluded Waste. Food Waste is a subset of Organic Materials. Unless collected as Organic Materials, Food Waste must be Source Separated.
“Franchise Fee” means the fee paid by Contractor to the City as described in Section 7.1. “Generator” means any Person whose act or process produces Discarded Materials as defined in the Public Resources Code, or whose act first causes Discarded Materials to become subject to Federal, State, or local regulations.
“Gross Receipts” shall mean total cash receipts collected from Customers by Contractor for the provision of services pursuant to this Agreement, without any deductions. Gross Receipts do not include revenues from the sale of Recyclable Materials, including California Redemption Value revenues. “Hauler Route” or “Route” means the designated itinerary or sequence of stops for each segment of the Jurisdiction’s Collection service area, or as otherwise defined in 14 CCR Section 18982(a)(31.5). “Hazardous Substance” means any of the following: (a) any substances defined, regulated or listed (directly or by reference) as "Hazardous Substances", "hazardous materials", "Hazardous Wastes", "toxic waste", "pollutant" or "toxic substances" or similarly identified as hazardous to human health or the environment, in or pursuant to: (i) CERCLA; (ii) the Hazardous Materials Transportation Act, 49 USC §1802, et seq.; (iii) the Resource Conservation and Recovery Act, 42 USC §6901 et seq.; (iv) the Clean Water Act, 33 USC §1251 et seq.; (v) California Health and Safety Code §§25115-25117, 25249.8, 25281, and 25316; (vi) the Clean Air Act, 42 USC §7901 et seq.; and, (vii) California Water Code §13050; (b) any amendments, rules, or regulations promulgated thereunder to such enumerated statutes or acts currently existing or hereafter enacted; and, (c) any other hazardous or toxic substance, material, chemical, waste or pollutant identified as hazardous or toxic or regulated under any other Applicable Law currently existing or hereinafter enacted, including, without limitation, friable asbestos, polychlorinated biphenyl’s (PCBs), petroleum, natural gas, and synthetic fuel products, and by-products. “Hazardous Waste” means all substances defined as Hazardous Waste, acutely Hazardous Waste, or extremely Hazardous Waste by the State in Health and Safety Code §25110.02, §25115, §25117, 22 CCR 215
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EXHIBIT A

DEFINITIONS
December 3, 2020 Page A-9 City of Cupertino/Recology Franchise Exhibit A Section 66261.3, et seq., 14 CCR Section 17402(a)(7), or in the future amendments to or recodifications of such statutes or identified and listed as Hazardous Waste by the U.S. Environmental Protection Agency (EPA), pursuant to the Federal Resource Conservation and Recovery Act (42 USC §6901 et seq.), all future amendments thereto, and all rules and regulations promulgated thereunder. Hazardous Waste includes hazardous wood waste.
“Holidays” are defined as New Year’s Day, Thanksgiving Day, and Christmas Day. “Household Hazardous Waste” or “HHW” means Hazardous Waste generated at Residential Premises within the City. HHW includes: paint, stain, varnish, thinner, adhesives, auto products such as old fuel, Used Motor Oil and Filters, batteries, household batteries, fluorescent bulbs , tubes, cleaners and sprays, pesticides, fertilizers and other garden products, needles, syringes, and lancets. “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 on as defined in 14 CCR Section 18983.1(b), or as otherwise defined by 14 CCR Section 17402(a)(7.5).
“Infectious Waste” means biomedical waste generated at hospitals, public or private medical clinics, dental offices, research laboratories, pharmaceutical industries, blood banks, mortuaries, veterinary facilities and other similar establishments that are identified in Health and Safety Code Section 25117.5 as may be amended from time to time.
“In-Home Recycling Container” refers to a small, easily portable tote bag with a capacity of at least three (3) gallons to be included by Contractor in the Multi-Family Move-in Kit to facilitate convenient accumulation of Recyclable Materials within a Multi-Family Dwelling Unit. “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.
“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.
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EXHIBIT A

DEFINITIONS
December 3, 2020 Page A-10 City of Cupertino/Recology Franchise Exhibit A “Liquidated Damages” means the amounts due by Contractor for failure to meet specific quantifiable standards of performance as described in Section 10.6 and Exhibit F. “Move-in Kit” refers to a pre-prepared and standardized collection of useful items to be given by property managers or Owners of Multi-Family Premises to new Multi-Family Occupants or by Contractor to SingleFamily Customers upon move-in to a Multi-Family or Single-Family Dwelling Unit. At a minimum, MultiFamily Move-in Kits shall include a Multi-Family Recycling guide, an In-Home Recycling Container, and stickers or other approved materials that clearly define acceptable materials and Prohibited Container Contaminants in the Recycling and Composting programs. At a minimum, Single-Family Move-in Kits shall include a Single-Family Recycling guide and stickers or other approved materials that clearly define acceptable materials and Prohibited Container Contaminants in the Recycling and Composting programs.

All Move-in Kits shall also include information about how to request a kitchen Food Scraps container. “Multi-Family” means any Residential Premises, other than a Single-Family Premises, with five (5) or more Dwelling Units used for Residential purposes (regardless of whether residence therein is temporary or permanent), including such Premises when combined in the same building with Commercial establishments, that receive centralized or shared Collection service for all units on the Premises, which are billed to one (1) Customer at one (1) address. Customers residing in mixed-use buildings, condominiums, or other structures with five (5) or more Dwelling Units who receive service shall be considered Multi-Family Customers.
“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):

A. 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).

B. Was produced at one or more of the following types of facilities:

1. A Compostable material handling operation or facility as defined in 14 CCR Section 17852(a)(12), that is permitted or authorized under 14 CCR, Division 7, other than a chipping and grinding operation or facility as defined in 14 CCR Section 17852(a)(10);

2. 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, Chapter 12; or,

3. A Solid Waste landfill as defined in PRC Section 40195.1 that is permitted under 27 CCR, Division 2.
“Municipal Code” means the Municipal Code of the City of Cupertino. “Non-Compostable Paper” includes, but is not limited to, paper that is coated in a plastic material that will not break down in the Composting process, or as otherwise defined in 14 CCR Section 18982(a)(41). “Non-Collection Notices” means the notice provided to Customers as described in Section 4.10.3. 217
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EXHIBIT A

DEFINITIONS
December 3, 2020 Page A-11 City of Cupertino/Recology Franchise Exhibit A “Non-Conforming Carts” means Carts in service at Single-Family Customer Premises on the Commencement Date that are either: (a) tan in color; (b) do not say “City of Cupertino;” or, (c) have logos or identification for other organizations such as Recology, Norcal, or County of Santa Clara on them. “Occupant” means the Person who occupies a Premises.
“On-Call Collection” means Collection services provided by Contractor to Customers upon Customer request including, but not limited to, Collection of additional Discarded Materials beyond those Collected on regular service days, Container steam cleaning service, and return-trip Collection service. “Organic Materials” means Yard Trimmings, Food Waste, and Food-Soiled Paper, individually or collectively. No Discarded Material shall be considered to be Organic Materials, however, unless it is separated from Recyclable Materials and Solid Waste. Carpets, Non-Compostable Paper, textiles, and Prohibited Container Contaminants shall not be Collected in Organic Materials Containers. Organic Materials are a subset of Organic Waste.
“Organic Waste” means wastes containing material originated from living organisms and their metabolic waste products including, but not limited to, food, Yard Trimmings, 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. “Owner” means the Person(s) holding legal title to real property and/or any improvements thereon, and shall include the Person(s) listed on the latest equalized assessment roll of the County Assessor except to the extent assignment of property title has changed since the most recent assessment. “Paper Products” include, but are not limited to, paper janitorial supplies, cartons, wrapping, packaging, file folders, hanging files, corrugated boxes, tissue, and toweling; or as otherwise defined in 14 CCR Section 18982(a)(51).
“Party” or “Parties” refers to the City and Contractor, individually or together. “Person(s)” has the same meaning as in Section 40170 of the Public Resources Code, which states, as of the Effective Date of this Agreement, that a Person includes an individual, firm, limited liability company, association, partnership, political subdivision, government agency, municipality, industry, public or private corporation, or any other entity whatsoever.
“Premises” means any land or building in the City where Recyclable Materials, Organic Materials, or Solid Waste are generated or accumulated.
“Printing and Writing Paper” includes, but is not limited to, copy, xerographic, watermark, cotton fiber, offset, forms, computer printout paper, white wove envelopes, manila envelopes, book paper, note pads, writing tablets, newsprint, and other uncoated writing papers, posters, index cards, calendars, brochures, reports, magazines, and publications; or as otherwise defined in 14 CCR Section 18982(a)(54). “Process, Processed, or Processing” means the controlled separation, recovery, volume reduction, conversion, Composting, or Recycling of Recyclable Materials, Organic Materials, Solid Waste, C&D, or their respective subcategories including, but not limited to, organized, manual, automated, or mechanical 218
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DEFINITIONS
December 3, 2020 Page A-12 City of Cupertino/Recology Franchise Exhibit A 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).
“Processing Facility” means any plant or site used for the purpose of Processing Recyclable Materials, Organic Materials, Solid Waste, C&D, or their respective subcategories for the purpose of making such material available for Recycling or Reuse, or the facility for the Processing and/or Composting of Organic Materials.
“Prohibited Container Contaminants” means the following: (i) Discarded Materials placed in the Recyclable Materials Container that are not identified as acceptable Recyclable Materials for the City’s Collection program; (ii) Discarded Materials placed in the Organic Materials Container that are not identified as acceptable Organic Materials for the City’s Collection program; (iii) Discarded Materials placed in the Solid Waste Container that are acceptable Recyclable Materials and/or Organic Materials to be placed in the City’s Recyclable Materials or Organic Materials Containers or otherwise managed under the City’s Collection program; and, (iv) Excluded Waste placed in any Container. “Property Owner” means the Owner of real property, or as otherwise defined in 14 CCR Section 18982(a)(57).
“Public Street” means all the City-owned and maintained paved areas between the normal Curb line of a roadway, including public parking lots, roadway dividers, and medians. “Rate” means the maximum amount, expressed as a dollar unit, approved by the City that Contractor may bill a Customer for providing services under this Agreement. A Rate has been established for each individual Service Level and the Rates for Rate Period One are presented in Exhibit G3. The Rates approved by the City are the maximum Rates that Contractor may charge a Customer and Contractor may, in its sole discretion, charge any amount up to and including the maximum Rate approved by the City. “Rate Period” means a twelve (12) month period, commencing February 1 and concluding January 31. “Recyclable Materials” means those Discarded Materials that are capable of being Recycled in a Commercially reasonable manner by the Approved Recyclable Materials Processing Facility, excluding Excluded Waste. No Discarded Materials shall be considered Recyclable Materials unless such material is separated from Organic Materials and Solid Waste. Recyclable Materials shall initially 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, gabletop beverage containers, 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, Tyvex non-tearing paper envelopes); 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. 1 to 7), except expanded polystyrene (EPS); bottles including containers made of HDPE, LDPE, or PET; clear film plastic (when clean, dry, and contained inside of a plastic bag). 219
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DEFINITIONS
December 3, 2020 Page A-13 City of Cupertino/Recology Franchise Exhibit A “Recyclable Paper” includes, but is not limited to, Paper Products, Printing and Writing Paper, and other Organic Waste that Generators place in the Recyclable Materials Container for the purposes of Collection, Transport, and Recycling by Contractor and that exclude Excluded Waste. Recyclable Paper is a subset of Organic Waste and of Recyclable Materials.
“Recycle” or “Recycling” means the process of sorting, cleansing, treating, and reconstituting at a Recyclable Materials Processing Facility materials that would otherwise be Disposed of at a landfill for the purpose of returning such materials to the economy in the form of raw materials for new, reused, or reconstituted products. 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. “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). “Residential” shall mean of, from, or pertaining to a Single-Family Premises or Multi-Family Premises including Single-Family homes, apartments, condominiums, Townhouse complexes, mobile home parks, and cooperative apartments.
“Residual” or “Residue” means the Solid Waste destined for Disposal, further Transfer/Processing as defined in 14 CCR Section 17402(a)(30) or 14 CCR Section 17402(a)(31), or transformation that remains after Processing has taken place and is calculated in percent as the weight of Residual divided by the total incoming weight of materials.
“Reuse” or any variation thereof, means the use of material in the same or similar form as it was produced, which might otherwise be discarded, or as otherwise defined in 14 CCR Section 17402.5(b)(2). “Salvageable Material” (or “Salvaged Material”) means an object or material that results from salvaging, where salvaging means the controlled separation of Solid Waste material that does not require further processing for Reuse or Recycling prior to Transfer activities, or as otherwise defined by 14 CCR Section 17402(a)(24).
“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 climate pollutants as amended, supplemented, superseded, and replaced from time to time.

For the purposes of this Agreement, SB 1383 specifically refers to the Short-Lived Climate Pollutants (SLCP): Organic Waste Reductions regulations developed by CalRecycle and adopted on November 10, 2020 that created Chapter 12 of 14 CCR, Division 7 and amended portions of regulations of 14 CCR and 27 CCR.
“Self-Hauler” or “Self-Haul” means a Person who hauls with their vehicle material they have generated (including Discarded Materials, recovered material, or any other material) to another Person, or as otherwise defined in 14 CCR Section 18982(a)(66). Self-Hauling includes occasions where an employee of 220
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DEFINITIONS
December 3, 2020 Page A-14 City of Cupertino/Recology Franchise Exhibit A a Commercial Generator or family member of a Residential Generator hauls materials generated by other Persons at such Premise. Self-Hauler also includes a Person who Back-Hauls waste, as defined in 14 CCR Section 18982(a)(66)(A).
“Service Level” refers to the size of a Customer’s Container, the number of Containers of each type, and the frequency of Collection service.
“Service Opportunity” shall mean each individual scheduled opportunity Contractor has to Collect from a Container at a Customer’s location. For example, a Commercial Customer receiving Recyclable Materials Collection service two (2) times per week from two (2) Containers, Organic Materials Collection service two (2) times per week from (2) Containers, and Solid Waste Collection service two (2) times per week from two (2) Containers would have a total of twelve (12) Service Opportunities each week. Service Opportunities shall be calculated based on the Service Levels presented in Contractor’s most recent quarterly report to the City. A Single-Family Customer with three (3) Carts for Collection of Solid Waste, Recyclable Materials, and Organic Materials would have a total of three (3) Service Opportunities each week.
“Single-Family” means, notwithstanding any contrary definition in the City Code, any detached or attached house or residence designed or used for occupancy by one (1) family, provided that Collection service feasibly can be provided to such Premises as an independent unit, and the Owner or Occupant of such independent unit is billed directly for the Collection service. Single-Family includes Townhouses and each independent unit of duplex, tri-plex, or four-plex Residential structures, regardless of whether each unit is separately billed for their specific Service Level. “Solid Waste” means solid waste as defined in California Public Resources Code, Division 30, Part 1, Chapter 2, §40191 and regulations promulgated hereunder. Solid Waste includes materials meeting the requirements of this paragraph that Generators place in the Solid Waste Container for the purposes of Collection and Transport to the Disposal Facility by Contractor. Excluded from the definition of Solid Waste are Excluded Waste, C&D, Source Separated Recyclable Materials, Source Separated Organic Materials, and radioactive waste. Notwithstanding any provision to the contrary, Solid Waste may include de minimis volumes or concentrations of waste of a type and amount normally found in Residential Solid Waste after implementation of programs for the safe Collection, Recycling, treatment, and Disposal of Household Hazardous Waste in compliance with Section 41500 and 41802 of the California Public Resources Code as may be amended from time to time. Solid Waste includes Salvageable Materials only when such materials are included for Collection in a Solid Waste Container, not Source Separated from Solid Waste at the site of generation.
“Solid Waste Fund Operations Fee” means the fee paid by Contractor to the City as described in Section

7.2. “Source Separated” means the segregation, by the Generator, of materials designated for separate Collection for some form of Recycling, Processing, Composting, recovery, or Reuse, such that the materials are segregated from Solid Waste and placed in a Container designated for Collection of that type of material (e.g., Recyclables in an Organic Materials Container would not be considered Source Separated). “State” means the State of California.
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EXHIBIT A

DEFINITIONS
December 3, 2020 Page A-15 City of Cupertino/Recology Franchise Exhibit A “Subcontractor” means a Person who has entered into a contract, express or implied, with Contractor for the performance of an act that is necessary for Contractor’s fulfillment of its obligations for providing service under this Agreement. Vendors providing materials and supplies to Contractor shall not be considered Subcontractors.
“Term” means the term of this Agreement, including extension periods if granted, as provided for in Article 2.
“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 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. “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 250 or more seats, or a total facility size equal to or greater than 5,000 square feet.

B. Hotel with an on-site food facility and 200 or more rooms.

C. Health facility with an on-site food facility and 100 or more beds.

D. Large Venue.

E. Large Event.

F. A State agency with a cafeteria with 250 or more seats or total cafeteria facility size equal to or greater than 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. “Ton” or “Tonnage” means a unit of measure for weight equivalent to two thousand (2,000) standard pounds where each pound contains sixteen (16) ounces.
“Tonnage Baseline Diversion Percentage” means the Diversion percentage calculated in accordance with Section 5.11.B for the period February 1, 2021 through December 31, 2021. “Total Service Opportunities” shall mean the sum of all Service Opportunities in a given time period. “Townhouse” means an attached or semi-attached Single-Family Premises within a group of attached or semi-attached Single-Family Premises, regardless of whether the Premises is billed individually or through a central account (e.g., homeowner association, property manager), wherein each unit maintains individual Collection service subscription.
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EXHIBIT A

DEFINITIONS
December 3, 2020 Page A-16 City of Cupertino/Recology Franchise Exhibit A “Transfer” means the act of transferring the materials Collected by Contractor in its Route vehicles into larger vehicles for Transport to other facilities for the purpose of Recycling, Processing, or Disposing of such materials.
“Transportation” or “Transport” means the act of conveying Collected materials from one location to another.
“Universal Waste” or “U-Waste” means all wastes as defined by Title 22, Subsections 66273.1 through 66273.9 of the California Code of Regulations. These include, but are not limited to, batteries, fluorescent light bulbs, mercury switches, and E-Waste.
“Used Motor Oil and Filters” means used oil fluids for vehicles including motor oil, brake, transmission and hydraulic fluids, crankcase and differential oils, lubricating oils for vehicles, and oil filters from automobiles and light trucks.
“Used Oil Recovery Kit” means a kit containing: one (1) reusable plastic jug of at least one (1) gallon capacity with a leak-proof watertight screw-on top to contain Used Motor Oil or used cooking oil; one (1) six (6) mil plastic disposable resealable bag with double track seal of sufficient capacity to accommodate one (1) Used Motor Oil Filter; and, a flyer, brochure, or other informational media approved by the City intended to educate Customers about the Used Motor Oil and Filter Collection program and the benefits resulting from the proper handling of Used Motor Oil and Filters. The Used Oil Recovery Kit is to be provided to Customers by Contractor to recover Used Motor Oil and Filters and used cooking oil from Single-Family residents.
“Working Days” means days that Contractor is required to provide regularly scheduled Collection services under this Agreement.
“Yard Trimmings” means those Discarded Materials that will decompose and/or putrefy (including, but not limited to, green trimmings, grass, weeds, leaves, prunings, branches, dead plants, brush, tree trimmings, dead trees, small pieces of unpainted and untreated wood, and other types of Organic Materials) resulting from normal yard and landscaping maintenance that may be specified in the City’s Legislation for Collection and Processing as Organic Materials under this Agreement. Yard Trimming includes materials meeting the requirements of this paragraph that Generators place in the Organic Materials Container for the purposes of Collection, Transport, and Processing by Contractor and that exclude Excluded Waste. Yard Trimmings does not include items herein defined as Excluded Waste. Yard Trimmings are a subset of Organic Materials. Yard Trimmings placed for Collection may not exceed six (6) inches in diameter and three (3) feet in length and must fit within Contractor-provided Container. Unless collected as Organic Materials, Yard Trimmings must be Source Separated. 223
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EXHIBIT B:

DIRECT SERVICES
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EXHIBIT B

DIRECT SERVICES
December 3, 2020 Page B-1 City of Cupertino/Recology Franchise Exhibit B The following Exhibits (B1 through B5) describe the programs that, in aggregate, represent the direct services to be performed under this Agreement by Contractor.

Each of the following Exhibits (B1 through B5) present the programs to be provided to each Customer Type by Contractor. Within each program description are specific requirements for the:
• Type and size of Containers or Service Levels to be offered by Contractor under each program; • Frequency of service to be offered by Contractor to Customers; • Location of service, including an indication of whether or not additional charges may apply if a Customer selects a location that is more costly to serve (e.g., back-yard service); • Materials that are acceptable or prohibited within the program; • Provision of additional services to the Customer if the standard Service Levels are inadequate, either on a regular or periodic basis, and an indication of whether or not additional charges may apply; and/or,
• Other requirements and considerations of the program.

Contractor shall provide the services for each program described in accordance with the specific program requirements detailed in Exhibits B1 through B5 and Contractor shall promote such programs using the public education and outreach methods described in Exhibit C. 225
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EXHIBIT B1:

SINGLE-FAMILY RESIDENTIAL SERVICE
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EXHIBIT B1

SINGLE-FAMILY RESIDENTIAL SERVICES
December 3, 2020 Page B1-1 City of Cupertino/Recology Franchise Exhibit B1

1. RECYCLABLE MATERIALS COLLECTION
Contractor shall Collect Recyclable Materials placed in Contractor-provided Containers one (1) time per week from Single-Family Customers and Transport all Recyclable Materials to the Approved Recyclable Materials Processing Facility for Processing.

Containers: Carts
Container Sizes: 32-, 64-, and 96-gallons (or comparable sizes approved by the City).

Standard Container size is 64-gallon. 96-gallon service shall be made available for no additional charge, upon request by Customer.

Service Frequency: One (1) time per week on the same day as Organic Materials and Solid Waste Collection services unless the Customer has received a Collection frequency waiver for Recyclable Materials in accordance with Section 4.12.2, in which case service frequency shall be not less than one (1) time per fourteen (14) days.

Service Location: Curbside
Acceptable Materials: Recyclable Materials
Prohibited Materials: Solid Waste, Organic Materials, Excluded Waste Additional Service: Single-Family Customers shall receive one (1) Recyclable Materials Cart standard and may request up to two (2) additional Recyclable Materials Carts at no additional charge unless a Rate has been approved by the City. Contractor shall provide additional Recyclable Materials Carts to Single-Family Customers upon request and may charge the Rate approved by the City for additional Recyclable Materials Cart service at a given Container size.

Contractor shall allow Single-Family Customers to place unlimited flattened and bundled Cardboard (each bundle no larger than 3’ x 3’ x 12”), and additional volumes of mixed Recyclable Materials contained in durable Customer-provided Containers adjacent to the Recyclable Materials Cart on their regularly-scheduled Collection day at no additional charge to the Customer. Such Customer-provided Containers shall be Disposed of unless clearly marked otherwise.

Other Requirements: Contractor shall accept household batteries and CFLs in the Recyclable Materials program, provided that those batteries and CFLs have been separately packaged in a sealed, clear plastic bag and placed on top of the Recyclable Materials Cart.

Other Household Hazardous Waste shall be handled in accordance with Exhibit B1, Section 9.

Contractor may refuse to Collect a Recyclable Materials Container in accordance with Section 4.10.3 of this Agreement

2. ORGANIC MATERIALS COLLECTION
Contractor shall Collect Organic Materials placed in Contractor-provided Carts one (1) time per week from Single-Family Customers and Transport all Organic Materials to the Approved Organic Materials Processing Facility for Processing.

Containers: Carts
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EXHIBIT B1

SINGLE-FAMILY RESIDENTIAL SERVICES
December 3, 2020 Page B1-2 City of Cupertino/Recology Franchise Exhibit B1 Container Sizes: 24-, 32-, 64, 96-gallons (or comparable size approved by the City).

Standard Container size is 96-gallons, or 24- or 32-gallons for Yard Trimmings exempt Customers.

Service Frequency: One (1) time per week on the same day as Recyclable Materials and Solid Waste Collection service.

Service Location: Curbside.

Acceptable Materials: Organic Materials (including Yard Trimmings, Food Waste, and Food-Soiled Paper).

Prohibited Materials: Recyclable Materials, Solid Waste, Excluded Waste Additional Service: Single-Family Customers shall receive one (1) Organic Materials Cart standard and may request up to two (2) additional Organic Materials Carts at no additional charge. Contractor shall provide additional Organic Materials Carts to SingleFamily Customers upon request and may charge the appropriate Rate approved by the City for additional Organic Material Carts service at a given Container size.

Contractor shall allow Single-Family Customers to place additional volumes of Organic Materials contained in durable Customer-provided Containers adjacent to the Organic Material Cart on their regularly-scheduled Collection day at no additional charge to the Customer. Such Customer-provided Containers shall be Disposed of unless clearly marked otherwise. Customer-provided Containers shall be in accordance with Section 5.6.

Until December 31, 2021 and subject to the provisions of the City’s Municipal Code, Single-Family Customers that demonstrate they have no Yard Trimmings for Collection are entitled to a smaller Container for Food Waste service at the City-approved rate for Yard Trimmings exempt service at a given Container size.

Other Requirements: Contractor shall provide to each Single-Family Customer upon request a kitchen container designed to contain Food Scraps prior to placement in the Customer’s Organic Materials Cart. Contractor shall not be required to provide more than one (1) kitchen container per Single-Family Premises during the Term, unless there is a change in the Premises’ occupancy. Kitchen container specifications shall be approved by the City prior to ordering and distribution.

Contractor may refuse to Collect an Organic Materials Container in accordance with Section 4.10.3 of this Agreement.

3. SOLID WASTE COLLECTION
Contractor shall Collect Solid Waste placed in Contractor-provided Carts one (1) time per week from Single-Family Customers and Transport all Solid Waste to the Designated Disposal Facility for Disposal.

Containers: Carts
Container Sizes: 24-, 32-, 64-, and 96-gallons (or comparable sizes approved by the City) as requested by Customer.

Service Frequency: One (1) time per week on the same day as Recyclable Materials and Organic Materials Collection service unless the Customer has received a Collection frequency waiver for Solid Waste in accordance with Section 4.12.2, in which case 229
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EXHIBIT B1

SINGLE-FAMILY RESIDENTIAL SERVICES
December 3, 2020 Page B1-3 City of Cupertino/Recology Franchise Exhibit B1 service frequency shall be not less than one (1) time per fourteen (14) days.

Service Location: Curbside
Acceptable Materials: Solid Waste
Prohibited Materials: Recyclable Materials, Organic Materials, Excluded Waste Additional Service: Contractor shall provide additional Solid Waste Carts to Single-Family Customers upon request and may charge the appropriate Rate approved by the City for additional Solid Waste Cart service at a given Container size.

Additional pick-ups requested by a Customer, on days other than their regularly scheduled Collection day, shall be available at the Rate approved by the City for such service.

Single-Family Customers may purchase Extra Bag Tags for additional Solid Waste.

Solid Waste must be placed in a Customer-provided bag, with the Extra Bag Tag affixed and clearly visible, and placed next to their Solid Waste Container for Collection. Contractor shall Collect all properly placed bags labeled with Extra Bag Tags and Customers shall not be required to schedule such extra service in advance. Contractor shall make Extra Bag Tags readily available to Single-Family Customers through the mail and at Contractor’s office at 1675 Rogers Avenue, San Jose, CA 95112. Contractor shall maintain a sufficient inventory of Extra Bag Tags to accommodate additional Solid Waste.

Other Requirements: None

4. USED OIL, FILTER, AND COOKING OIL COLLECTION
Contractor shall Collect Used Motor Oil and Filters and used cooking oil placed in a Contractor-provided Used Oil Recovery Kit or a Customer-provided Container from Single-Family Customers and shall Recycle all Used Motor Oil and Filters and used cooking oil Collected pursuant to this Agreement.

Containers: Used Oil Recovery Kit
Container Sizes: Contractor-provided 1-gallon filter bags and, 1-gallon oil jugs (screw-on lids); and/or Customer-provided sealed plastic bag for filters; and/or Customerprovided 1-gallon non-leaking plastic containers with tight-fitting lid or the containers the new oil came in with tight-fitting lid (screw-on lids); Service Frequency: Up to one (1) time per week on the same day as Solid Waste Collection service.

Service Location: Curbside (adjacent to Recyclable Materials Cart) Acceptable Materials: Used Motor Oil and Filters, used cooking oil Prohibited Materials: Recyclable Materials, Organic Materials, Solid Waste, Excluded Waste Additional Service: Not applicable
Other Requirements: Contractor shall provide a Used Oil Recovery Kit to a Customer within three (3) Working Days of Customer request, at no additional cost to Customer. Upon Collection of Used Motor Oil and Filter from a Customer, Contractor shall leave a clean and empty Used Oil Recovery Kit adjacent to the Recyclable Materials Cart.

Contractor shall Recycle the Used Motor Oil and Filters and used cooking oil only with Persons who are authorized by the State of California to Recycle such 230
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EXHIBIT B1

SINGLE-FAMILY RESIDENTIAL SERVICES
December 3, 2020 Page B1-4 City of Cupertino/Recology Franchise Exhibit B1 materials. In the event the Used Motor Oil and Filter and/or used cooking oil Collected pursuant to this Agreement is contaminated to the extent that the materials require Disposal as a Hazardous Waste, Contractor shall Dispose of such materials, at Contractor’s own cost and expense in accordance with Applicable Law.

Contractor shall include in its monthly report, as provided in Exhibit D, the number of instances of any contamination that renders the Used Motor Oil and Filter or used cooking oil unacceptable for Recycling or that requires Disposal as Hazardous Waste.

Contractor shall keep all Used Motor Oil and Filters and used cooking oil Collected pursuant to this Agreement segregated from other materials.

Contractor may refuse to Collect Used Motor Oil and Filter if it is not contained in an approved Used Oil Recovery Kit, provided that Contractor leaves a NonCollection Notice that explains the reason for non-Collection, and also leaves a clean and empty Used Oil Recovery Kit adjacent to the refused Used Motor Oil and Filter set-out. Contractor may refuse to Collect a Used Motor Oil Recovery Kit that contains liquid other than Used Motor Oil or cooking oil, provided that Contractor leaves a Non-Collection Notice that explains the reason for nonCollection.

5. ON-CALL BULKY ITEM AND BIN-BY-THE-DAY COLLECTION
Contractor shall Collect Bulky Items and other materials described herein from Single-Family Customers.

Upon Customer request, Contractor shall provide Bin-by-the-Day service to Single Family Customers at the City-approved Rate for Bin-by-the-Day service at a given Container size. Contractor shall Transport all Collected materials to the appropriate Approved Facility for Reuse, Recycling, Processing, or Disposal.

Containers: 4-, 6-, 7-cubic yards for Bin-by-the-Day service (or comparable sizes approved by the City)
Service Level: For Bulky Item Collection, up to two-hundred (200) pounds per item; total volume not to exceed two (2) cubic yards.

Service Frequency: For Bulky Item Collection, up to two (2) times per year.

For Bin-by-the-Day, on-call for a period not to exceed seven (7) consecutive calendar days.

Service Location: Curbside
Acceptable Materials: For Bulky Item Collection, Bulky Items.

For Bin-by-the-Day, Bulky Items, Recyclable Materials, E-Waste, U-Waste, Yard Trimmings, and Solid Waste.

Prohibited Materials: Food Scraps, Hazardous Waste, abandoned automobiles, trees, Excluded Waste or any single item (e.g., large auto parts, tires, etc.) that exceeds fifty (50) pounds in weight.

Additional Service: Contractor shall provide up to two (2) Bulky Item Collections per year to SingleFamily Customers at no additional cost, and may charge the Rate approved by the City for any additional Bulky Item Collections requested by the Customer. 231
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EXHIBIT B1

SINGLE-FAMILY RESIDENTIAL SERVICES
December 3, 2020 Page B1-5 City of Cupertino/Recology Franchise Exhibit B1 Single-Family Customers may request Bin-by-the-Day service at the Cityapproved Rate for Bin-by-the-Day service at a given Container size.

Other Requirements: Contractor shall Collect Yard Trimmings separately from acceptable materials described in this Exhibit B1, Section 5. Upon Customer request, Contractor shall provide separate On-Call Collection service for Yard Trimmings. Contractor shall Collect up to six (6) thirty-two (32) gallon Carts, or the equivalent volume of paper garden bags, of Yard Trimmings per scheduled on-call Yard Trimmings Collection service.

Contractor shall not Dispose of materials Collected through the on-call Bulky Item Collection program unless the materials cannot be reused, Recycled, or Processed.

6. HOLIDAY TREE COLLECTION
Annually, commencing the day after December 25 and four (4) weeks thereafter, Contractor shall Collect holiday trees from Single-Family Customers. Customers are required to place the holiday trees Curbside on the Customer’s regularly scheduled Collection day. Holiday trees must be removed from stands, cut into lengths no longer than six (6) feet, and be free of ornaments, garlands, tinsel, or other decorations.

Contractor shall not be required to Collect holiday trees that do not meet the aforementioned criteria. In accordance with Section 4.10.3, Contractor shall affix a Non-Collection Notice to any non-Collected holiday tree informing the Customer of the reason(s) for non-Collection. Contractor shall deliver all Collected holiday trees to the Approved Organic Materials Processing Facility for Processing.

Holiday tree Collection services shall be provided at no additional cost to the City or the Customer.

7. ALTERNATIVE SERVICE LOCATION FOR DISABLED SINGLE-FAMILY CUSTOMERS Contractor shall allow for Persons that have a disability as defined by the Americans with Disabilities Act (which means Public Law 101-336, 104 Stat. 327, 42 U.S.C. 12101-12213 and 27 U.S.C. 225 and 611, and all Federal rules and regulations relating thereto) that are Occupants of Single-Family Premises to receive Collection services from the back yard or side yard of the Premises at no extra charge to the Customer, provided the household contains no non-disabled adult residents. The City shall review all applications (which shall include statements from physicians) made by Customers to determine conformance with this exemption provision and shall grant exemptions, if applicable. The City shall require recipients of this service to re-verify annually that they meet eligibility requirements. Upon Customer request, Contractor may make such alternative service locations available to Single-Family Customers that do not have a disability (as defined herein) at the Rate approved by the City for alternative location service at a given Container size.

8. CONTAINER SHARING FOR TOWNHOUSE PREMISES
In special circumstances, for Customers with space limitations and upon approval by the City Contract Manager, Contractor shall permit Townhouse Customers to share Discarded Materials service with other geographically proximate Customers. Such shared service shall be performed, and billed, as if it were being provided to a single Customer, with the exception that Contractor shall require all Customers sharing a single service account to identify a “Primary Responsible Party”, which will serve as the singular point of contact for communication and billing from Contractor and the City, along with a list of all addresses with which the Primary Responsible Party will share service. 232
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EXHIBIT B1

SINGLE-FAMILY RESIDENTIAL SERVICES
December 3, 2020 Page B1-6 City of Cupertino/Recology Franchise Exhibit B1

9. HOUSEHOLD HAZARDOUS WASTE
Household Hazardous Waste (HHW) shall be handled through the Santa Clara County HHW Drop-Off Program. Contractor is required to promote County HHW Programs in accordance with Exhibit C.

Contractor and the City shall encourage use of extended producer responsibility programs such as PaintCare and Med-Project, where appropriate.

10. BACKYARD COMPOST AND WORM BIN DELIVERY
Single-Family residents who complete Compost education workshops provided by the University of California Cooperative Extension (UCCE), or an equitable program as approved by the City Contract Manager, shall be allowed to request and receive one City-approved Compost or vermicompost bin per household at no cost, subject to availability. Up to sixty (60) bins per year shall be purchased by the City and delivered to Contractor for storage and delivery to Single Family residents. 233
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EXHIBIT B2:

MULTI-FAMILY RESIDENTIAL SERVICES
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EXHIBIT B2

MULTI-FAMILY RESIDENTIAL SERVICES
December 3, 2020 Page B2-1 City of Cupertino/Recology Franchise Exhibit B2

1. RECYCLABLE MATERIALS COLLECTION
Contractor shall Collect Recyclable Materials placed in Contractor-provided Containers from Multi-Family Customers and shall Transport all Recyclable Materials to the Approved Recyclable Materials Processing Facility for Processing.

Containers: Carts, Bins
Container Sizes: 32-, 64-, and 96-gallon Carts (or comparable size approved by the City); and 1-, 2-, 3-, 4-, 5-, 6-, and 8-cubic yard Bins as requested by Customer Service Frequency: Up to six (6) times per week but not less than one (1) time per week (as requested by Customer), unless the Customer has received a Collection frequency waiver for Recyclable Materials in accordance with Section 4.12.2, in which case service frequency shall be not less than one (1) time per fourteen (14) days.

Service Location: Curbside or other Customer-selected service location at the Multi-Family Premises.

Acceptable Materials: Recyclable Materials
Prohibited Materials: Organic Materials, Solid Waste, Excluded Waste Additional Service: Special pick-ups requested by a Customer, on days other than their regularly scheduled Collection day, will be available at the Rate approved by the City for additional Recyclable Materials Container service at a given Container size. Such additional picks-ups can be scheduled equating to up to six (6) days per week total service.

Other Requirements: Contractor shall offer to all Multi-Family Dwelling Units personal recycling totes as part of Move-in-Kits designed to contain Recyclable Materials prior to placement in the Recyclable Materials Container. Personal recycling tote specifications shall be approved by the City prior to ordering and distribution.

Contractor shall accept household batteries and CFLs in the Recyclable Materials program, provided that those batteries and CFLs have been collected by the property manager in a centrally located collection Container, and subsequently packaged in a sealed, clear plastic bag and placed in mutually determined collection location for Collection. The Customer must notify the Contractor in advance according to Contractor’s standard procedures before setting out batteries and CFLs (such procedures subject to approval by the City Contract Manager). Other Household Hazardous Waste shall be handled in accordance with Exhibit B2, Section 6.

Contractor may refuse to Collect a Recyclable Materials Container in accordance with Section 4.10.3 of this Agreement.

Contractor shall provide Collection service in accordance with Section 5.3.

2. ORGANIC MATERIALS COLLECTION
Contractor shall Collect Organic Materials in Contractor-provided Carts not less than one (1) time per week from Multi-Family Customers and Transport all Organic Materials to the Approved Organic Materials Processing Facility for Processing.

Containers: Carts, Bins
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EXHIBIT B2

MULTI-FAMILY RESIDENTIAL SERVICES
December 3, 2020 Page B2-2 City of Cupertino/Recology Franchise Exhibit B2 Container Sizes: 24- 32-, 64-, and 96-gallon Carts (or comparable size approved by the City); and, 1-, 2-, 3-, and 4-cubic yard Bins as requested by Customer.

Service Frequency: Up to six (6) times per week but not less than one (1) time per week, as requested by the Multi-Family Customer.

Service Location: Curbside or other Customer-selected service location at the Multi-Family Premises.

Acceptable Materials: Organic Materials (including Yard Trimmings, Food Waste, and Food-Soiled Paper).

Prohibited Materials: Recyclable Materials, Solid Waste, Excluded Waste Additional Service: Special pick-ups requested by a Customer, on days other than their regularly scheduled Collection day, will be available at Rate approved by the City for additional Organic Material Container service at a given Container size. Such additional picks-ups can be scheduled equating to up to six (6) days per week total service.

Other Requirements: Contractor will contact each building’s Owner or property manager to inform them of the availability of kitchen containers for Food Scraps. Upon request by the building’s Owner or Property Manager, Contractor shall provide to all MultiFamily Dwelling Units in the building, kitchen containers designed to contain Food Scraps prior to placement in the Customer’s Organic Materials Container.

Contractor shall not be required to provide more than one (1) kitchen container per Multi-Family Dwelling Unit during the Term, unless there is a change in the unit’s occupancy. Kitchen container specifications shall be approved by the City prior to ordering and distribution.

Contractor shall provide Collection service in accordance with Section 5.3.

Contractor may refuse to Collect an Organic Materials Container in accordance with Section 4.10.3 of this Agreement.

3. SOLID WASTE COLLECTION
Contractor shall Collect Solid Waste placed in Contractor-provided Containers not less than one (1) time per week from Multi-Family Customers and Transport all Solid Waste to the Designated Disposal Facility for Disposal.

Containers: Carts, Bins
Container Sizes: 24-, 32-, 64-, and 96-gallon Carts (or comparable size approved by the City); and 1-, 2-, 3-, 4-, 5-, 6-, and 8-cubic yard Bins as requested by Customer.

Service Frequency: Up to six (6) times per week but not less than one (1) time per week, as requested by Customer, unless the Customer has received a Collection frequency waiver for Solid Waste in accordance with Section 4.12.2, in which case service frequency shall be not less than one (1) time per fourteen (14) days.

Service Location: Curbside or other Customer-selected service location at the Multi-Family Premises.

Acceptable Materials: Solid Waste
Prohibited Materials: Recyclable Materials, Organic Materials, Excluded Waste 236
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EXHIBIT B2

MULTI-FAMILY RESIDENTIAL SERVICES
December 3, 2020 Page B2-3 City of Cupertino/Recology Franchise Exhibit B2 Additional Service: Special pick-ups requested by a Customer, on days other than their regularly scheduled Collection day, will be available at the Rate approved by the City for additional Solid Waste Container service at a given Container size. Such additional picks ups can be scheduled equating to up to three (3) days per week total service.

Other Requirements: Contractor shall provide Collection service in accordance with Section 5.3.

4. ON-CALL BULKY ITEM AND BIN-BY-THE-DAY COLLECTION
Contractor shall Collect Bulky Items from Multi-Family Customers upon request made by the property manager. Multi-Family Customers may request Bin-by-the-Day service through the property manager at a City-approved Rate. Contractor shall Transport all Collected materials to the appropriate Approved Facility for Processing or Disposal.

Containers: 4-, 6-, 7-cubic yards for Bin-by-the-Day service (or comparable sizes approved by the City).

Service Level: For Bulky Item Collection, up to two-hundred (200) pounds per item; total volume does not exceed two (2) cubic yards.

Property managers shall schedule on-call Bulky Item and Bin-by-the Day pickups for their Occupants.

Service Frequency: For Bulky Item Collection, up to two (2) times per year per Multi-Family Dwelling Unit at no additional charge.

For Bin-by-the-Day, on-call for a period not to exceed seven (7) consecutive calendar days.

Service Location: Curbside or other agreed-upon service location at the Multi-Family Premises.

Acceptable Materials: For Bulky Item Collection: Bulky Items For Bin-by-the-Day Service: Recyclable Materials, E-Waste, U-Waste, Yard Trimmings, and Solid Waste
Prohibited Materials: Food Scraps, Hazardous Waste, abandoned automobiles, trees, Excluded Waste or any single item (e.g., large auto parts, etc.) that exceeds fifty (50) pounds in weight.

Additional Service: Contractor shall provide up to two (2) Bulky Item Collections per year to each Multi-Family Dwelling Unit at no additional cost, and may charge the Rate approved by the City for additional Bulky-Item service.

Multi-Family Customers may request Bin-by-the-Day service at a City-approved Rate.

Other Requirements: Contractor shall Collect Yard Trimmings separately from acceptable materials described in this Exhibit B2, Section 4. Upon Customer request, Contractor shall provide separate On-Call Collection service for Yard Trimmings. Contractor shall Collect up to six (6) thirty-two (32) gallon Carts, or the equivalent volume of paper garden bags, of Yard Trimmings per scheduled on-call Yard Trimmings Collection service. Contractor shall Transport Yard Trimmings to the Approved Organic Materials Processing Facility. Contractor shall not Dispose of materials Collected through the on-call Bulky Item Collection program unless the materials cannot be Reused, Recycled, or Processed. Contractor shall Process and Dispose of Bulky Items Collected from Customers in accordance with the following hierarchy: (1) 237
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EXHIBIT B2

MULTI-FAMILY RESIDENTIAL SERVICES
December 3, 2020 Page B2-4 City of Cupertino/Recology Franchise Exhibit B2 Reuse as is (where energy efficiency is not compromised); (2) disassemble for Reuse or Recycling; (3) Recycle or Compost; and if none of the other options are practicable, (4) Dispose.

5. HOLIDAY TREE COLLECTION
Annually, commencing the day after December 25 and four (4) weeks thereafter, or as otherwise approved by the City Contract Manager, Contractor shall Collect holiday trees from Multi-Family Customers at a mutually agreed upon time, date, and designated Collection location, as arranged by Contractor and each Multi-Family property owner or manager. Contractor shall offer each Multi-Family property owner or manager the option to receive holiday tree Collection service in Bins or Drop Boxes, provided by Contractor for such service. Contractor shall also offer each Multi-Family property owner or manager the option to receive un-containerized holiday tree Collection service Curbside, or from designated location at the Multi-Family Premises mutually agreed upon between Contractor and the property owner or manager.

Holiday trees must be removed from stands; cut into lengths no longer than six (6) feet; and, be free of ornaments, garlands, tinsel, or other decorations. Contractor shall not be required to Collect holiday trees that do not meet the aforementioned criteria and/or are not placed at the agreed upon Collection location and time period. In accordance with Section 4.10.3, Contractor shall affix a Non-Collection Notice to any non-Collected Bin or Drop Box intended for the Collection of holiday trees. Contractor shall deliver all Collected holiday trees to the Approved Organic Materials Processing Facility for Processing.

Holiday tree Collection services shall be provided at no additional cost to the City or the Customer.

6. HOUSEHOLD HAZARDOUS WASTE
Household Hazardous Waste (HHW) shall be handled through the Santa Clara County HHW Drop-Off Program. Contractor is required to promote County HHW Programs in accordance with Exhibit C.

Contractor and the City shall encourage use of extended producer responsibility programs such as PaintCare and Med-Project, where appropriate.
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EXHIBIT B3:

COMMERCIAL SERVICES
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EXHIBIT B3

COMMERCIAL SERVICES
December 3, 2020 Page B3-1 City of Cupertino/Recology Franchise Exhibit B3

1. RECYCLABLE MATERIALS COLLECTION
Contractor shall Collect Recyclable Materials placed in Contractor-provided Containers from Commercial Customers and Transport all Recyclable Materials to the Approved Recyclable Materials Processing Facility for Processing.

Containers: Carts, Bins, Drop Boxes, and Compactors
Container Sizes: 32-, 64-, and 96-gallon Carts (or comparable size approved by the City); 1-, 2-, 3-, 4-, 5-, 6-, and 8- cubic yard Bins;
2-, 3-, and 4-cubic yard Bin Compactors, and,
8-, 16, 20-, 25-, 30-, and 40- cubic yard Drop Boxes; or Customer owned Compactors as requested by Customer.

Service Frequency: Up to six (6) times per week (Monday through Saturday), but not less than one (1) time per week, as requested by Customer unless the Customer has received a Collection frequency waiver for Recyclable Materials in accordance with Section

4.12.2, in which case service frequency shall be not less than one (1) time per fourteen (14) days. Seven (7) day Collection service (Monday through Sunday) shall be available if Customer gives at least one (1) week advanced notice to Contractor.

Service Location: Curbside or other Customer-selected service location at the Commercial Premises.

Acceptable Materials: Recyclable Materials
Prohibited Materials: Organic Materials, Solid Waste, Excluded Waste Additional Service: Special pick-ups requested by a Customer, on days other than their regularly scheduled Collection day, will be available at the Rate approved by the City for additional Recyclable Materials Container service at a given Container size. Such additional picks-ups can be scheduled equating to up to six (6) days per week total service.

Other Requirements: Contractor may refuse to Collect a Recyclable Materials Container in accordance with Section 4.10.3 of this Agreement.

Contractor shall provide Collection service in accordance with Section 5.3.

2. ORGANIC MATERIALS COLLECTION
Contractor shall Collect Organic Materials placed in Contractor-provided Containers not less than one (1) time per week from Commercial Customers and Transport all Organic Materials to the Approved Organic Materials Processing Facility for Processing.

Containers: Carts, Bins, Compactors
Container Sizes: 24-, 32-, 64-, and 96-gallon Carts (or comparable size approved by the City); 1-, 2-, 3-, and 4-cubic yard Bins; and Customer-owned Compactors as requested by Customer.

Service Frequency: Up to six (6) times per week, but not less than one (1) time per week, as requested by Customer. Seven (7) day Collection service (Monday through Sunday) shall be available if Customer gives at least one (1) week advanced notice to Contractor.

Service Location: Curbside or other Customer-selected service location at the Commercial 240
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December 3, 2020 Page B3-2 City of Cupertino/Recology Franchise Exhibit B3 Premises.

Acceptable Materials: Organic Materials (including Yard Trimmings, Food Scraps, and Food-Soiled Paper).

Prohibited Materials: Recyclable Materials, Solid Waste, Excluded Waste Additional Service: Special pick-ups requested by a Customer, on days other than their regularly scheduled Collection day, will be available at the Rate approved by the City for additional Organic Materials Container service at a given Container size. Such additional picks-ups can be scheduled equating to up to six (6) days per week total service.

Other Requirements: Contractor may refuse to Collect an Organic Materials Container in accordance with Section 4.10.3 of this Agreement.

Contractor shall provide Collection service in accordance with Section 5.3.

3. SOLID WASTE COLLECTION
Contractor shall Collect Solid Waste placed in Contractor-provided Containers not less than one (1) time per week from Commercial Customers and Transport all Solid Waste to the Designated Disposal Facility for Disposal. Solid Waste Collection services shall be provided to Commercial Customers by subscription.

Containers: Carts, Bins, Drop Boxes, Compactors.

Container Sizes: 24-, 32-, 64-, and 96-gallon Carts (or comparable size approved by the City); 1-, 2-, 3-, 4-, 5-, 6-, and 8- cubic yard Bins;
2-, 3-, and 4-cubic yard Bin Compactors, and,
8-, 16-, 20-, 25-, 30-, and 40- cubic yard Drop Boxes; or Customer owned Compactors as requested by Customer.

Service Frequency: Up to six (6) times per week but not less than one (1) time per week, and unless a waiver has been granted pursuant to Section 4.12.2, as requested by Customer.

Service Location: Curbside or other Customer-selected service location at the Commercial Premises.

Acceptable Materials: Solid Waste
Prohibited Materials: Recyclable Materials, Organic Materials, Excluded Waste Additional Service: Special pick-ups requested by a Customer, on days other than their regularly scheduled Collection day, will be available at the Rate approved by the City for additional Solid Waste Container service at a given Container size. Such additional picks-ups can be scheduled equating to up to six (6) days per week total service.

Other Requirements: Contractor shall provide Collection service in accordance with Section 5.3.

4. BIN-BY-THE-DAY SERVICE
Upon Customer request, Contractor shall Collect Recyclable Materials, Organic Materials, Solid Waste, and other materials described herein from Commercial Customers. Contractor shall Transport all Collected materials to the appropriate Approved Facility for Reuse, Processing, or Disposal. Contractor shall provide such service to Commercial Customers at the Rate approved by the City for Bin-by-the-Day service at a given Container size.

Containers: 1-, 2-, 3-, 4-, 5-, 6-, and 8- cubic yard Bins. 241
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EXHIBIT B3

COMMERCIAL SERVICES
December 3, 2020 Page B3-3 City of Cupertino/Recology Franchise Exhibit B3 Service Frequency: On-call for a period not to exceed seven (7) consecutive calendar days.

Service Location: Curbside or other agreed-upon service location at the Commercial Premises; additional charges may apply if the service location is greater than twenty-five (25) feet from the nearest point that a Collection vehicle can access from a paved surface.

Acceptable Materials: Recyclable Materials, E-Waste, U-Waste, Yard Trimmings, and Solid Waste Prohibited Materials: Food Scraps, Hazardous Waste, abandoned automobiles, trees, Excluded Waste or any single item (e.g., large auto parts, etc.) that exceeds two-hundred (200) pounds in weight.

Other Requirements: Contractor shall provide the service to the Customer within one (1) Working Day of the Customer’s requested service date, as mutually agreed upon by the Customer and Contractor.

5. COMMERCIAL CONTAINER SHARING
In special circumstances, for Customers with significant space limitations and upon approval by the City Contract Manager and Contractor, Contractor shall permit Commercial Customers to share Discarded Materials service with other geographically proximate Commercial Customers. Such shared service shall be performed and billed as if it were being provided to a single Customer, with the exception that Contractor shall require all Customers sharing a single service account to identify a “Primary Responsible Party”, which will serve as the singular point of contact for communication and billing from Contractor and the City, along with a list of all addresses with which the Primary Responsible Party will share service.

6. CONSTRUCTION & DEMOLITION MATERIAL COLLECTION
A. General. Contractor shall Collect C&D from Customers that directly subscribe to its Collection services. Contractor shall charge Customers for C&D Collection services at City-approved Rates.

B. Acceptable Material. Contractor may Collect C&D from construction, remodeling, repair, or demolition operations. C&D may be Source-Separated mixed materials or Source Separated individual materials (e.g., wood-only or metal-only loads). C&D may contain only de minimis amounts of Solid Waste generated at the C&D Collection Sites.

C. Transport and Processing. Contractor shall Deliver C&D to the Designated C&D Processing Facility for Processing.

D. Container Types and Collection Frequency. Contractor shall offer Customers various size Drop Boxes for Collection of C&D, subject to review and approval by the City Contract Manager. C&D Containers shall conform to all requirements of Section 5.6 of this Agreement. After the Drop Box has been delivered, Contractor shall provide requested Collection of C&D materials within two (2) Working Days of a Customer request.

E. Education Information. Contractor shall provide Customers with City-approved educational information on best practices for C&D Recycling and Reuse and proper separation of materials for Collection as described in Section 4.7. As directed by the City, Contractor shall label or install signs on Bins and Drop Boxes identifying allowable and non-allowable materials for Collection in the C&D Containers. Signs shall be a minimum size of one (1) foot by two (2) feet and lettering on 242
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COMMERCIAL SERVICES
December 3, 2020 Page B3-4 City of Cupertino/Recology Franchise Exhibit B3 signs shall be a minimum of three (3) inches high. Signs shall be affixed to the front and both sides of each Bin and Drop Box.

F. Record Keeping and Reporting. Contractor shall submit C&D Tonnage information and other data pursuant to Exhibit D of the Agreement.
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EXHIBIT B4:

CITY SERVICES
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EXHIBIT B4

CITY SERVICES
December 3, 2020 Page B4-1 City of Cupertino/Recology Franchise Exhibit B4

1. COMMERCIAL CUSTOMER SERVICES TO CITY FACILITIES
Contractor shall Collect Recyclable Materials, Organic Materials, and Solid Waste from City facilities in the same manner as those services are provided to Commercial Customers. Contractor shall initially provide service to all existing City facilities at the locations and Service Levels set forth in Exhibit B5. City may change Service Levels to the facilities identified in Exhibit B5, and/or may add service to any future City facilities. Contractor shall provide such changed or added service at no cost to City, provided that the total cost of servicing all City facilities does not exceed by more than ten percent (10%) the total cost of servicing the City facilities identified in Exhibit B5 at the Service Levels identified in Exhibit B5. Such cost comparison shall be calculated using the Rates in effect at the time the comparison is made. Any services provided in excess of the aforementioned cap shall be charged to City at the then-applicable Rates. If such amounts are not paid by City, Contractor shall be entitled to recover them as an “other adjustment” in the next annual Rate adjustment. The two hundred sixty (260) temporary Drop Box hauls provided for in Exhibit B5, and the eight (8) City-sponsored or hosted special events provided for in Section 4.6, are excluded from the aforementioned cost comparison and cap.

2. EMERGENCY SERVICES
Contractor shall provide emergency services (i.e., special collections, Transport, Processing, and Disposal) at the request of the City Contract Manager in the event of major accidents, disruptions, or natural calamities guided by the City of Cupertino’s Disaster Debris Plan, as it may be adopted and amended from time to time during the Term of this Agreement. Contractor shall be capable of providing emergency services within twenty-four (24) hours of notification by the City Contract Manager or as soon thereafter as is reasonably practical in light of the circumstances. For any services that exceed the scope of services under this Agreement, Contractor shall be entitled to compensation at the emergency service Rates set forth in Exhibit E to of this Agreement. The City shall have discretion in the method of such compensation between direct payments by the City and allowing such costs to be included in the adjustment of Rates for the following Rate Period. The City reserves the right to engage third-party haulers for the purpose of providing additional services to address emergencies.

3. CITY-WIDE RECYCLING EVENTS
Contractor shall provide four (4) free City-Wide Recycling Events (Environmental Days) per year, including the staffing, Disposal, and Transportation of all acceptable Recyclable Materials delivered by residents as requested by the City Contract Manager. The City and Contractor shall mutually agree on the location for the event(s). If not paid directly by City, Contractor shall be entitled to recover the agreed cost on a passthrough basis as an “other adjustment” in the next annual Rate adjustment. Contractor shall procure all necessary permits for the events and shall handle all Recyclable Materials received in a manner that will ensure the maximum amount practicable will be Recycled, Composted, or otherwise Diverted from the landfill.

A. Shredding. Contractor shall accept at least three (3) 12” x 12” x 16” boxes (or equivalent volume) per household of sensitive documents for destruction and shredding on site at the event.

Contractor shall provide, or contract with another firm to provide, a modern, high-volume mobile shredder for this service.

B. Accepted Recyclable Materials. Contractor shall accept from residents of the City, and keep separate for Recycling, the following materials:
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December 3, 2020 Page B4-2 City of Cupertino/Recology Franchise Exhibit B4

1. E-waste, such as computer monitors, TVs, computers, VCRs, and other computer related electronics;

2. U-Waste, such as compact fluorescent bulbs, fluorescent tube bulbs, batteries, and mercury thermometers;

3. Clean (unpainted and untreated) dimensional lumber;

4. Scrap metal items that do not exceed forty (40) pounds in weight and are not more than three (3) feet long in any dimension;

5. White goods, such as washers, dryers, water heaters, refrigerators, ranges, and dishwashers that do not contain Freon;

6. Up to one covered pickup truck full of Residential C&D per household;

7. Up to thirty (30) gallons per household of concrete, asphalt, rock, and dirt;

8. Usable functioning appliances, furniture, housewares, or toys (to be donated to a non-profit service organization);

9. Usable textiles (to be donated to a non-profit service organization); and,

10. All other Recyclable Materials.

C. Accepted Compostable Materials. Contractor shall accept from residents of the City, and keep separate for Composting, the following materials:

1. Unpainted and untreated wood; and,

2. Yard Trimmings.

D. Non-Acceptable Materials. Contractor shall not be required to accept the following materials during City-Wide Recycling events:

1. Tree branches which are more than six (6) inches in diameter;

2. More than thirty (30) gallons per household of concrete, asphalt, rock, and dirt;

3. More than one (1) pickup truck full of Residential C&D per household;

4. Tires;

5. Hazardous materials including Used Motor Oil and Filters; and,

6. Any other materials not included in the list above.
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EXHIBIT B4

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December 3, 2020 Page B4-3 City of Cupertino/Recology Franchise Exhibit B4

4. COATS FOR KIDS
For Residential Customers, Contractor shall run its “Coats for Kids” program in the fall or winter of every year as directed by the City. Contractor shall promote this program in accordance with Exhibit C.

Contractor shall launder the coats and donate them to local non-profit organizations to keep children and adults in need warm through the winter months. Contractor shall submit to the City a summary report of the “Coats for Kids” program in the annual report in accordance with Exhibit D.

5. PROVISION OF COMPOST AND MULCH PRODUCT
A. Bulk Compost. Contractor shall make available to the City bulk Compost produced from Organic Materials Collected from Single-Family Customers (among other sources) at an Approved Processing Facility for use by residents and for use in City parks and facilities. Contractor shall provide one thousand (1,000) cubic yards per Agreement year at no additional cost to the City or Customers, and an additional one thousand (1,000) cubic yards per Agreement year at a twentyfive percent (25%) discount off market price. The City will notify Contractor as to the City’s needs for delivery of finished Compost throughout the Agreement year. Contractor shall deliver Compost within five (5) Business Days of a request of the City to City facilities, parks, and/or other City-approved locations within City limits and Contractor shall be entitled to recover it on a passthrough basis as an “other adjustment” in the next annual Rate adjustment. If the City does not take delivery of Compost made available by Contractor within thirty (30) calendar days of the end of the Agreement year, Contractor’s obligation to provide Compost for said Agreement year shall be deemed to be satisfied. Any of the bulk Compost allotment that is not requested by the City during the Agreement year shall not carry over into the next Agreement year. In accordance with Exhibit D, Contractor shall provide the City with Compost lab results. The Compost will be “Certified Compost” under the U.S. Composting Council’s Seal of Testing Assurance (STA) program.

B. Bulk Mulch. If the Approved Organic Materials Processing Facility produces Mulch that meets the requirements of 14 CCR Section 18993.1(f)(4), then City may opt to receive Mulch instead of Compost (or a combination of Mulch and Compost), subject to the same volume and pricing limits stated in this Exhibit B4, Section 5.A above. The Mulch shall be for use in City parks and facilities.

The City will notify Contractor as to the City’s needs for delivery of finished Mulch throughout the Agreement year. Contractor shall deliver Mulch within five (5) Business Days upon request of the City to any accessible location within City limits, and the cost of delivery shall either be paid by City, or Contractor shall be entitled to recover it on a pass-through basis as an “other adjustment” in the next annual Rate adjustment. If the City does not take delivery of Mulch made available by Contractor within thirty (30) calendar days of the end of the Agreement year, Contractor’s obligation to provide Mulch for said Agreement year shall be deemed to be satisfied. Any of the bulk Mulch allotment that is not requested by the City during the Agreement year shall not carry over into the next Agreement year.

C. SB 1383 Procurement. Contractor agrees that all Compost or Mulch provided through this Agreement shall comply with the requirements of SB 1383, 14 CCR Section 18993.1(f)(1) (as to Compost) and 18993.1(f)(4) (as to Mulch).

In the event that the City does not use its free allocation of bulk Compost under Section A, Contractor shall act as the City’s broker for the remaining material and make reasonable commercial efforts to either: (a) sell that Compost (or an equivalent volume of Mulch) to other 247
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December 3, 2020 Page B4-4 City of Cupertino/Recology Franchise Exhibit B4 potential users on the City’s behalf (in which case Contractor may retain the proceeds); or, (b) donate that Compost (or an equivalent volume of Mulch) to a non-profit user selected by Contractor, or to any other recipient mutually-agreed with City.

6. NEWS MEDIA RELATIONS.

Contractor shall notify the City Contract Manager by e-mail of all requests for news media interviews related to the Collection services program within twenty-four (24) hours of Contractor’s receipt of the request. Before responding to any inquiries involving controversial issues or any issues likely to affect participation or Customer perception of services, Contractor will discuss Contractor’s proposed response with the City Contract Manager.

Copies of draft news releases or proposed trade journal articles related to the provision of Collection services under this Agreement shall be submitted to the City for prior review and approval at least five (5) Business Days in advance of provision to such Persons, except where Contractor is required by any law or regulation to submit materials to any regulatory agency in a shorter period of time, in which case Contractor shall submit such materials to the City simultaneously with Contractor’s submittal to such regulatory agency.

Copies of articles resulting from media interviews or news releases shall be provided to the City within five (5) Business Days after publication.

7. WASTE GENERATION, CHARACTERIZATION, AND PILOT STUDIES.

Contractor acknowledges that the City, CalRecycle, or other governmental agencies may wish to perform generation and characterization studies periodically with respect to materials covered under this Agreement. Contractor agrees to cooperate with the City and its agents that may perform studies and data collection exercises, as needed, to determine weights, volumes, and composition of materials generated, Disposed, Diverted or otherwise Processed. Contractor shall assist the City and its agents in such efforts at no additional compensation, provided such assistance does not interfere with Contractor’s operations and is at no or de minimis cost to Contractor. Such assistance shall include allowing the City and its agents to perform generation and characterization studies at the Approved Transfer Facility at no additional compensation, at mutually agreed times. Contractor shall work with the City’s agents to provide a waste characterization plan for the City’s approval that details methods, proposes material types to study, dates and times of studies, and number of sites to study in each sector.

If the City requires Contractor to directly participate in the study by conducting, managing, analyzing, and/or providing a report of the results, Contractor and the City shall mutually agree on the scope of services to be provided by Contractor and the amount of compensation, if any, that the City will pay to Contractor for such participation. In any event, Contractor shall permit and in no way interfere with the Collection and handling of the subject materials by City or other City-approved Persons for such purposes.

Contractor acknowledges that the County, in coordination with the City, is required by SB 1383 to conduct Organic Waste and Edible Food capacity planning studies. Contractor shall provide information to the City as reasonably requested by City for the City’s participation in such capacity planning studies. This information may include, but is not limited to, providing information regarding existing and potential new or expanded capacity in Contractor’s operations for the Collection, Transport, or Processing of Recyclable Materials and Organic Materials; and any other information reasonably requested by the City or County 248
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December 3, 2020 Page B4-5 City of Cupertino/Recology Franchise Exhibit B4 for purposes of the study. Contractor shall respond to any request for information from the City within thirty (30) days, unless another timeframe is otherwise specified or authorized by the City.

Contractor acknowledges that the City may wish to conduct and/or participate in pilot studies related to the Customers and materials that are the subject of this Agreement. If the City requires Contractor to participate in any such a pilot study, Contractor and the City shall mutually agree on the scope of services to be provided by Contractor and the amount of compensation, if any, that the City will pay to Contractor for such participation. In any event, Contractor shall permit and in no way interfere with the Collection and handling of the subject materials by City or other City-approved Persons for such purposes. 249
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EXHIBIT B5:

CITY FACILITY SERVICE LEVELS, LOCATIONS, AND

SPECIAL EVENTS
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EXHIBIT B5

CITY FACILITY SERVICE LEVELS, LOCATIONS, AND SPECIAL EVENTS December 3, 2020 Page B5-1 City of Cupertino/Recology Franchise Exhibit B5 Contractor shall Collect Recyclable Materials, Organic Materials, and Solid Waste, from City facilities in the same manner as those services are provided to Commercial Customers, and shall provide designated personnel in accordance with Section 5.7.D of this Agreement. Contractor shall provide service to all existing City facilities identified in this Exhibit as well as any future City facilities established after the Commencement Date.

Contractor shall provide these services at no additional cost to the City, subject to Section 1 of Exhibit B4.

FACILITY

NAME ADDRESS

SERVICE LEVEL/

FREQUENCY
TRASH

SERVICE LEVEL/

FREQUENCY

RECYCLING

SERVICE LEVEL/

FREQUENCY

GREEN WASTE

DROP BOX

ON-CALL
City Hall and Community Hall
10300 Torre Ave. 1-3yd
3x/week
1-4yd 1x/week
1-3yd 1x/wee
Blackberry Farm 21975 San Fernando
Ave
4-3yd 2x/week
3- 4yd 1x/week
1-4yd On-Call 15-96Gal Cart/1x/week
Library 10400 Torre Ave. 1-3yd
3x/week
1-4yd 5x/week
1-3yd 1x/week
Quinlan Community Center
10185 Stelling Rd. North
1x 4yd 3x/week
1-4yd 3x/week
1-4yd 2x/week
Senior Center 21251 Steven Creek
Blvd
1-3yd 3x/week
1-3yd, 1x/week
1-2yd 2x/week
Sports Center 21111 Stevens Creek
Blvd.
1-1.5yd, 3x/week 1-1.5yd
3x/week
1-1.5yd 1x/week
All City parks 2-40 yds for leaf
season
Public Works Service Center
10555 Mary Ave 1-3yd
3x/week
2- 4yd 1x/week
1-1.5yd, 1x/week
2-8yd,1-26yd,1-40yd, 2-16yd
Traffic Operations Center
10981 Franco Ct. 2-1.5yd, 1x/week None currently None currently Stocklmeir Property 22120 Stevens Creek
Blvd
1-96Gal Cart /x/week
1-64Gal Cart 1/x/week
1x 96Gal Cart 1/x/week
City of Cupertino 10301 Byrne Ave 1- 32Gal Cart
1/x/week
1-64Gal Cart 1x/week
1-96Gal Cart 1/x/week
McClellan Ranch Preserve and
22221 McClellan Rd. 2-64 gallon
1x/week
1-16yd, 1-20yd-city owned
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EXHIBIT B5

CITY FACILITY SERVICE LEVELS, LOCATIONS, AND SPECIAL EVENTS December 3, 2020 Page B5-2 City of Cupertino/Recology Franchise Exhibit B5

FACILITY

NAME ADDRESS

SERVICE LEVEL/

FREQUENCY
TRASH

SERVICE LEVEL/

FREQUENCY

RECYCLING

SERVICE LEVEL/

FREQUENCY

GREEN WASTE

DROP BOX

ON-CALL
Environmental Education Center Monta Vista Recreation Center 22601 Voss Ave. 1- 6yd, 1x/week 1-4yd
1x/week
None currently
Compost Site 1200 Stevens
Canyon Rd.
1- 3yd 1x/week seasonally end of March – mid Nov
1 -3yd, 1x/week
None currently
In addition to regular scheduled Collection services, Contractor shall provide, upon request, two hundred sixty (260) temporary Drop Box Collection services per year to all City facilities (including but not limited to those listed above) at no additional cost to the City. Contractor shall deliver Drop Boxes within one (1) Working Day of the City’s request. Contractor shall Collect, empty, and return Drop Boxes within one (1) Working Day of the City’s request. Contactor shall remove and not return Drop-Boxes within one (1) Working Days of the City’s request. Contractor shall deliver Source Separated Yard Trimmings Collected from City facilities, parks, and clean-up operations in such Drop Boxes to the Approved Organic Materials Processing Facility. Contractor shall provide special event services pursuant to Section 4.6 of the Agreement. Listed below are the current and planned City facilities and special events to receive Collection services. Contractor acknowledges that the list of special events is subject to change per City direction but will not exceed the annual number of special events provided in Section 4.6.

City of Cupertino Anticipated Special Events*
Event Name Estimated
Annual Date
Location Container Size /
Type
Container Number Other Services/ Specifications
National River
Clean Up
May &
September
Creekside
Park
96 gallon 3-MSW,3-RYC and
1-ORG
None
4th of July July 3rd Creekside
Park
FEL 1-6yd MSW, 1-6yd
RYC and 1-3yd
ORG
Addition Clear Stream Trios as
needed
Earth
Day/Arbor
Day
April City Hall FEL 1-3yd MSW,1-4yd
RYC and 1-3yd
ORG
Use existing FEL bins on site.

May add additional bins if
needed along with Clear Stream
Trios
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EXHIBIT C:

PUBLIC EDUCATION AND OUTREACH

REQUIREMENTS
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EXHIBIT C

PUBLIC EDUCATION & OUTREACH PLAN
December 3, 2020 Page C-1 City of Cupertino/Recology Franchise Exhibit C

1. General Administration
The City places importance on effective public outreach and education in helping residents and businesses fully understand options for and benefits of source reduction, Reuse, Recycling, and Composting. General provisions for public education and outreach are as follows:

A. Prior to the Commencement Date and by November 1 of each following year during the Term of this Agreement, Contractor shall develop and submit an annual public education plan to promote the programs designed by the City and performed by Contractor under this Agreement. 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, a timeline for implementation, and an itemized description of how Contractor’s annual public education budget (described in subsection (F) of this Exhibit C-1) will be spent. The City Contract Manager shall be permitted to provide input on each annual public education plan, and the plan shall not be finalized or implemented without approval of the City Contract Manager, not to be unreasonably withheld or delayed. Each plan’s implementation success shall be measured according to the deadlines identified and products distributed. Contractor shall meet with the City Contract Manager 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. The City Contract Manager shall be allowed up to thirty (30) calendar days after receipt to review the plan and request reasonable modifications. The City Contract Manager may request, and Contractor shall not unreasonably deny, reasonable modifications to be completed prior to approving the plan. Contractor shall have up to fifteen (15) Business Days to revise the plan in response to any requested changes by the City Contract Manager. Any further delays may result in Liquidated Damages as identified in Exhibit F.

B. Upon request from the City Contract Manager, City Contract Manager and Contractor’s Contract Manager shall meet up to one (1) time per month to discuss services, outreach, and educational campaigns and request changes or adaptations to the annual public education plan. The City will be responsible, in its sole discretion and subject to budgetary constraints, for preparing all public education materials contemplated by this Exhibit C, at City’s cost, and shall request that materials be reviewed by Contractor prior to production. If requested, Contractor shall review and comment on the materials ten (10) Business Days of request from the City.

C. All City facilities shall receive any and all public education and outreach materials and services provided to the Commercial sector. Contractor shall provide all printed public education materials to City offices and facilities to have available for the public that visits those facilities and shall replenish the materials as requested by the City Contract Manager.

D. Bill inserts shall be designed and produced by the City; and Contractor shall be responsible for printing and distributing the billing inserts to all Customers. Contractor shall provide electronic bill inserts (or separate email attachments) to Customers who are billed electronically, and paper bill inserts to Customers who receive paper bills. For Customers receiving electronic bills, Contractor agrees to distribute brochures, newsletters, or other information developed by the 255
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EXHIBIT C

PUBLIC EDUCATION & OUTREACH PLAN
December 3, 2020 Page C-2 City of Cupertino/Recology Franchise Exhibit C City as attachments to Customer invoices. Electronic bill inserts/attachments must be readily available for the Customer to view upon receipt of the invoice (attachments shall not be provided as links). Upon City request for billing inserts, Contractor shall comply with such request during its next billing cycle for the targeted Customer group, if specified. Contractor shall perform this service with no additional requirement for compensation.

E. Contractor shall develop a website specific to its operations in the City, with a section specific to City programs and Customers, that will be used to post educational materials for download, highlight program successes, and provide Diversion statistics. Contractor’s City-specific website shall also include links to relevant web pages of the City’s website where further information can be found.

F. Notwithstanding any other provision, Contractor shall only be required to pay forty four thousand two hundred ninety-three dollars ($44,293) per Agreement year in out-of-pocket printing, shipping, mailing, and signage costs for City-approved public education and outreach materials, increased annually by CPI-U. City or Contractor shall be entitled to recover above reimbursement amount on a pass-through basis as an “other adjustment” in the next annual Rate adjustment.

2. Public Education and Outreach Team
To best achieve the highest possible level of public education and awareness, Contractor shall employ at least one (1) full-time Waste Zero Specialist staff member to coordinate and implement all public education and outreach activities required by this Agreement. Contractor’s Waste Zero Specialist shall spend one hundred percent (100%) of their time implementing public education, technical support, and outreach activities required by this Agreement, as provided in Section 4.7.

A. Waste Zero Specialist.

Contractor’s Waste Zero Specialist shall, at a minimum, perform the following tasks:

1. Meet no less than monthly with the City Contract Manager upon the request of the City Contract Manager and be readily available to discuss issues related to providing service as described in the Agreement;

2. Work to coordinate City program and educational activities with Contractor activities;

3. Increase efforts to promote Recycling in the community and particularly in local schools by visiting each school at minimum two (2) times per school year, recognizing that waste generated by schools in the City affects the City’s Diversion;

4. Upon City request, organize City staff ride-alongs with Contractor’s Collection drivers;

5. Prepare proposals and presentations to City entities;

6. Participate and represent Contractor in community activities;

7. Oversee Customer satisfaction of all program services, as described in Exhibit B to the Agreement;
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EXHIBIT C

PUBLIC EDUCATION & OUTREACH PLAN
December 3, 2020 Page C-3 City of Cupertino/Recology Franchise Exhibit C

8. Coordinate and produce the annual education and outreach plan required by Section 1 of this Exhibit C to the Agreement;

9. Coordinate implementation of the annual public education plan;

10. Perform annual visits to confirm adequate service and proper sorting as required by Recycling and Organic Materials Processing laws and regulations for every Customer, other than SingleFamily Customers, by conducting “Diversion opportunity assessments” of Customer locations and facilities;

11. Manage follow-up Diversion opportunity assessments for businesses to conduct a more comprehensive investigation and educational process after the initial review;

12. Provide all Customers with appropriate educational information necessary to make informed, environmentally-forward decisions relative to waste reduction, Reuse, and Diversion activities.

13. Maximize the opportunity for initial and sustained program success by seeking to identify a "champion" (ideally a senior manager) at each Commercial and Multi-Family Premises who will serve as a primary contact and advocate for Diversion programs within the Customer’s organization;

14. Assist in planning service needs for special events and Large Venues with a focus on reducing the Disposal to landfill of materials resulting from such events or venues; and,

15. Assist in creating and distributing reports as required under this Agreement and/or requested by the City Contract Manager, as described in Article 6 and Exhibit D.

16. Educate and inform about SB 1383 and food rescue/donation.

17. Attend Santa Clara County RWRC Technical Advisory Committee meetings monthly and California Resource Recovery Association annual conference.

3. Curbside Supplemental Payments
Contractor shall apply for the State’s Curbside Supplemental Payment program in accordance with Section

7.6. 4. Sector-Specific Activities
The following tables present the public education and outreach activities to be performed by Contractor each Rate Period as minimum requirements under this Agreement. Each Customer Type faces unique Discarded Materials management opportunities and challenges; therefore, Contractor shall distribute targeted, sector-specific educational materials and perform outreach activities as described for each Customer Type.
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EXHIBIT C

PUBLIC EDUCATION & OUTREACH PLAN
December 3, 2020 Page C-4 City of Cupertino/Recology Franchise Exhibit C Public Education and Outreach | All SectorsAll printed materials also to be posted to the Contractor’s website. The following tables present examples of general public education and outreach materials that Contractor shall produce for the benefit of all Customer types that receive Collection service from Contractor.

Activity Description Distribution/FrequencyTruck-Side Advertising Implement a City-wide truck-side advertising campaign to educate the public about Contractor’s programs under this Agreement. Campaign content and messaging shall be created by the City. Contractor shall produce and install truck-side signage for each side of each vehicle it operates in performing services under this Agreement.

Quarterly.

SB 1383 Mandatory Recyclable Materials and Organic Materials Outreach Commencing January 1, 2022, distribute City-produced outreach materials that include, at a minimum, the following information: 1. Information on the Generator’s requirements to properly Source Separate Recyclable Materials, Organic Materials, and Solid Waste and place such materials in appropriate Containers pursuant to this Agreement, SB 1383, and all other Applicable Law.

2. Information on methods for the prevention of Source Separated Recyclable Materials and Source Separated Organic Materials generation; managing Source Separated Organic Materials on Generator’s Premises through Composting or other landfill Disposal reduction activities allowed under 14 CCR Sections 18983.1 and 18983.2; sending Source Separated Organic Materials to Community Composting operations; and any other local requirements regarding Discarded Materials.

3. Information regarding the methane reduction benefits of reducing the Disposal of Source Separated Organic Materials, and the method(s) that Contractor uses to recover Source Separated Organic Materials.

At least annually.
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December 3, 2020 Page C-5 City of Cupertino/Recology Franchise Exhibit C Activity Description Distribution/Frequency

4. Information regarding how to recover Source-Separated Recyclable Materials and Source-Separated Organic Materials, and information related to recovering Source Separated Yard Trimmings from MultiFamily and Commercial Generators

5. Information related to the public health and safety and environmental impacts associated with the Disposal of Source Separated Organic Materials.

6. Information regarding the City’s Edible Food recovery program. 7. Information regarding Self-Hauling requirements, if applicable.

8. Any other Federal, State, or local requirements to properly separate Discarded Materials or other necessary actions by Generators, including applicable requirements of the Municipal Code, AB 341, AB 1826, and SB 1383. 259
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EXHIBIT C

PUBLIC EDUCATION & OUTREACH PLAN
December 3, 2020 Page C-6 City of Cupertino/Recology Franchise Exhibit C Public Education and Outreach | Single-Family & Townhouse Education and Outreach Activities All printed materials also to be posted to the Contractor’s website.

Activity Description Distribution/FrequencyEnvironmental Services Guide Distribute a City-designed “how-to” guide on (including but not limited to) proper Recycling, Organics disposal, handling and Disposal of Household Hazardous Waste, E-Waste, and U-Waste directly to Single-Family residents. This guide shall include information on Collection methodologies, set-out instructions, set-out schedule, contact information, and acceptability and necessary preparation of materials for all Single-Family programs described in Exhibit B1. Contractor may arrange for distribution to each Dwelling Unit a flyer, door hanger, or other public education piece by coordinating with the Owner or property manager of the Premises.

Annually to each Single-Family and Townhouse Customer, and thereafter to all new Customers.

Move-In Kits Distribute Move-in Kits for new residents. As needed.Neighborhood Group & HOA Visits Visit homeowner associations and other neighborhood groups and associations to promote and explain the Recycling programs included in this Agreement.

At City Contract Manager or Customer request.

Quarterly Bill Insert Produce and Distribute a City-designed quarterly bill inserts that creatively informs Residential Customers about such topics as availability of Bulky Item pick-ups, home Composting, proper handling of Household Hazardous Waste, EWaste, U-Waste, Coats for Kids, and other environmental conservation topics, statistics, trends, and facts about programs performed under this Agreement (e.g., material Collected, Tonnage, year over year increase/decrease, markets for material Collected, what each material is Recycled into, and the importance of buying Recycled). Contractor’s annual public education plan shall define a theme for each quarterly bill insert.

One (1) time per quarter included in each mailed Customer bill and downloadable from electronic Customer bills.

Corrective Action Notices Produce and distribute a Single-Family Customer oriented Non-Collection Notice and Courtesy Notice for use in instances where the Customer includes Prohibited Container Contaminants in a Container or fails to properly prepare or set-out Containers.

As needed.
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EXHIBIT C

PUBLIC EDUCATION & OUTREACH PLAN
December 3, 2020 Page C-7 City of Cupertino/Recology Franchise Exhibit C Activity Description Distribution/FrequencySeasonal Program Notifications Provide written notification to all Single-Family Customers advertising holiday tree Collections pursuant to Exhibit B1, Section 6, and any other seasonal or periodic program(s). The notification shall inform Customers of the schedule, acceptable materials and Prohibited Container Contaminants, and set-out requirements for the program.

At least fourteen (14) calendar days prior to event via direct mail.

Website Contractor shall prepare a “Single-Family Customer” section of its website where it will present Customers with “how-to” information for participating in Contractor-provided programs, including proper Container set-outs, and provide Single-Family Customers with links to click on for additional resources. All other Single-Family educational materials specified in this Section shall be posted on this section of Contractor’s website in PDF and/or video format. The website shall also publish the current Rates charged to Single-Family Customers within the City.

At least thirty (30) calendar days prior to Commencement Date. Updated no less than quarterly. 261
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December 3, 2020 Page C-8 City of Cupertino/Recology Franchise Exhibit C Public Education and Outreach | Multi-Family Education and Outreach Activities All printed materials also to be posted to the Company’s website.

Description Purpose Distribution/FrequencyEnvironmental Services Guide Distribute a City-designed “how-to” guide on (including but not limited to) proper Recycling, Organics disposal, handling and Disposal of Household Hazardous Waste, E-Waste, and U-Waste directly to MultiFamily Customers. This guide shall include information on Collection methodologies, set-out instructions, pick-up schedule, contact information, and acceptability and necessary preparation of materials for all Single-Family programs described in Exhibit B2. Contractor may arrange for distribution to each Dwelling Unit a flyer, door hanger, or other public education piece by coordinating with the Owner or property manager of the Premises.

Annually to each Multi-Family Dwelling Unit, and thereafter to all new Customers.

Technical Assistance: Diversion Opportunity Assessments Visit in person and offer Diversion opportunity assessments at least one (1) time annually to each and every Multi-Family Customer to meet with the property manager or Owner of Multi-Family Premises to promote Recyclable Materials and Organic Materials Collection and replenish Move-in Kits as needed by each Multi-Family Premises. Additionally, upon City or Customer request, Contractor shall perform complete walk-throughs of each facility/complex and discuss the internal and external layout with property manager; identify areas of generation, Collection, noting areas for improved infrastructure, placement, or educational materials. Contractor shall also identify major components of the waste stream by location and identify special wastes or Source-Separated materials potential. Contractor shall then make recommendations for waste reduction, contamination prevention, and Service Level or frequency modification. Finally, Contractor shall coordinate with Customer service and operations to implement Service Level changes, as needed.

Offer in-person meetings to each and every Multi-Family Customer conducted one (1) time per year, plus follow-up meetings with individual Customers, as needed or requested.

Move-In Kits Produce and Distribute Move-in Kits for property managers and Owners of Multi-Family Premises to provide to new Occupants.

Distributed during technical assistance Diversion opportunity assessments. 262
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EXHIBIT C

PUBLIC EDUCATION & OUTREACH PLAN
December 3, 2020 Page C-9 City of Cupertino/Recology Franchise Exhibit C Description Purpose Distribution/FrequencyWorkshops Offer and respond to requests for on-site or online meetings and workshops. Contractor shall conduct workshops for Customers (when requested) that will show property managers and residents, in a handson interactive format, how to use the Recyclable Materials and Organic Materials program and will provide resources for additional information and support.

At Customer’s request.

Holiday Tree Collection Notification
Produce and distribute a City-designed written notification to each Multi-Family property manager/Owner advertising the availability of holiday tree Collection services. The notification shall inform managers of the schedule, accepted and prohibited materials, Collection method options, and set-out requirements for the program. The notification shall include Contractor contact information for Multi-Family Customers to contact to discuss schedule and designated Collection location. The format and content of the notification shall be approved by the City Contract Manager.

At least fourteen (14) calendar days prior to event via direct mail, e-mail, or inperson.

Website Contractor shall prepare a “Multi-Family Customer” section of its website where it will present “how-to” information for participating in Contractor-provided programs including proper Container set-outs, and provide Multi-Family Customers with links to click on for additional resources. All other Multi-Family educational materials specified in this Exhibit shall be posted on this section of Contractor’s website in PDF and/or video format. The website shall also publish the current Rates charged to Multi-Family Customers within the City. The website shall also provide property managers of Multi-Family Premises with anopportunity to request “Diversion opportunity assessments”, additional Move-in Kits, workshops, or additional education materials to provide to Occupants.

At least thirty (30) calendar days prior to Commencement Date. Updated no less than quarterly. 263
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December 3, 2020 Page C-10 City of Cupertino/Recology Franchise Exhibit C Description Purpose Distribution/FrequencySB 1383 Educational Materials for Employees/ Occupants Commencing January 1, 2022, Contractor shall provide Multi-Family property managers/Owners with City-produced public education materials, required by 14 CCR Section 18984.10, for their distribution to all employees, Contractors, Occupants, and Customers of the property or business. The public education materials shall include, at a minimum, information about Organic Materials recovery requirements and proper sorting of Discarded Materials. Multi-Family property managers/Owners may request these materials more frequently if needed to comply with the SB 1383 requirement to provide information to new Occupants before or within fourteen (14) days of occupancy. In this case, the Multi-Family property manager/owner may request delivery of materials by contacting Contractor’s Customer service department no later than two (2) weeks in advance of the date that the materials are needed.

One (1) time annually; or more frequently upon Customer request. 264
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EXHIBIT C

PUBLIC EDUCATION & OUTREACH PLAN
December 3, 2020 Page C-11 City of Cupertino/Recology Franchise Exhibit C Public Education and Outreach | Commercial Education and Outreach Activities All printed materials also to be posted to the Company’s website.

Description Purpose Distribution/FrequencyEnvironmental Services Guide Produce and Distribute a City-designed “how-to” guide on (including but not limited to) proper Recycling, Organics disposal, handling and Disposal of Hazardous Waste, E-Waste, and U-Waste directly to Commercial Customers. This guide shall include information on Collection methodologies, set-out instructions, set-out schedule, contact information, and acceptability and necessary preparation of materials for all Commercial programs described in Exhibit B3.

By direct mail annually to each Commercial Customer, and thereafter to all new Customers. “How-to” Flyer: Recyclable Materials
Prepare and distribute a City-designed “how-to” brochure explaining the Recyclable Materials Collection programs for each general business type (restaurants, office/Commercial buildings, strip malls, and large Commercial businesses). Include waste reduction messaging and encourage reusable foodware.

One (1) time at beginning of the Agreement (20-30 days prior to contract start date) via direct mail. Thereafter, distributed during Diversion opportunity assessments. “How-to” Flyer: Organic Materials
Prepare and distribute a City-designed flyer describing the Organic Materials Collection services available and how to prepare Organic Materials for Collection for each general business type (restaurants, office/Commercial buildings, strip malls, and large Commercial businesses). Include information on food donation laws (e.g., Good Samaritan Law) and organizations that accept donations if known.

One (1) time at beginning of the Agreement (20-30 days prior to contract start date) via direct mail. Thereafter, distributed during Diversion opportunity assessments. 265
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EXHIBIT C

PUBLIC EDUCATION & OUTREACH PLAN
December 3, 2020 Page C-12 City of Cupertino/Recology Franchise Exhibit C Description Purpose Distribution/FrequencyTechnical Assistance: Diversion Opportunity Waste Assessments Visit in person and offer Diversion opportunity assessments at least one (1) time annually to each and every Commercial Customer to promote Recyclable Materials and Organic Materials Collection and replenish Recycling guides and Recyclable Materials and Organic Materials posters as needed by each Customer. Provide inside Containers (e.g., 32 gallon “slim jims”) with labels upon request to assist with Diversion (to be provided to Customers at cost). Additionally, Contractor shall perform complete walk-throughs of each facility/complex and discuss the internal and external layout with property manager; identify areas of generation, Collection, noting areas for improved infrastructure, placement, or educational materials. Contractor shall also identify major components of the waste stream by location and identify special wastes or sourced separated materials potentials. Contractor shall then make recommendations for waste reduction, contamination prevention, and Service Level or frequency modification. Finally, Contractor shall coordinate with Customer service and operations to implement Service Level changes, as needed.

Offer one (1) time annually during in-person meetings with Commercial Customer, plus follow-up meetings with individual Customers, as required or requested.

Recyclable Materials and Organic Materials Posters
Produce and Distribute City-produced (during Diversion opportunity assessments) laminated Recyclable Materials and Organic Materials posters that provide graphic illustrations of acceptable materials and Prohibited Container Contaminants within each program.

Distributed during Diversion opportunity assessments.

Quarterly Bill Inserts Produce and distribute City-designed quarterly bill inserts that creatively inform Commercial Customers about such topics as: cost savings available from source reduction, Reuse, and Recycling; tips for overcoming common operational challenges businesses have with Recyclable Materials and Organic Materials programs; the environmental benefits of buying Recycled-content products and statistics, trends, and facts about programs performed under this Agreement (e.g., Collected, Tonnage, year over year increase/decrease, markets for material Collected, what each material is Recycled into) as appropriate. Contractor’s annual public education plan shall define a theme for each quarterly insert.

One (1) time per quarter via direct mail to each Commercial Customer in the City. 266
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EXHIBIT C

PUBLIC EDUCATION & OUTREACH PLAN
December 3, 2020 Page C-13 City of Cupertino/Recology Franchise Exhibit C Description Purpose Distribution/FrequencyProgram Announcements On each bill, Contractor shall include a brief statement to Commercial Customers providing service-related announcements such as messages about new services, the proper handling of Household Hazardous Waste, waste reduction, etc.

Included in Customer bill.

Corrective Action Notices Produce a Commercial and Multi-Family Customer oriented Non-Collection Notice and Courtesy Notice for use in instances where the Customer includes prohibited materials in a Container or fails to properly prepare or set-out Containers.

As needed.

SB 1383 Educational Materials for Employees/ Occupants
Commencing January 1, 2022, Contractor shall provide Commercial property managers/Owners with City-produced public education materials, required by CCR Section 18984.10, for their distribution to all employees, Contractors, Occupants, and Customers of the property or business. The public education materials shall include, at a minimum, information about Organic Waste recovery requirements and proper sorting of Discarded Materials. Commercial Customers may request these materials more frequently if needed to comply with the SB 1383 requirement to provide information to new Occupants before or within fourteen (14) days of occupancy. In this case, the Commercial property manager/Owner may request delivery of materials by contacting Contractor’s Customer service department no later than two (2) weeks in advance of the date that the materials are needed.

One (1) time annually; or more frequently upon Customer request. 267
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EXHIBIT C

PUBLIC EDUCATION & OUTREACH PLAN
December 3, 2020 Page C-14 City of Cupertino/Recology Franchise Exhibit C Description Purpose Distribution/FrequencySB 1383 Commercial Edible Food Generator Education Commencing January 1, 2022, Contractor shall provide Customers that are Commercial Edible Food Generators with City-produced educational materials that contain the following: 1. Information about the City’s Edible Food Recovery program; 2. Information about the Commercial Edible Food Generator requirements under 14 CCR, Division 7, Chapter 12, Article 10;

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
One (1) time annually.
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EXHIBIT C

PUBLIC EDUCATION & OUTREACH PLAN
December 3, 2020 Page C-15 City of Cupertino/Recology Franchise Exhibit C Public Education and Outreach | Schools All printed materials also to be posted to the Company’s website as well as links to teacher resources.

Description Purpose Distribution/FrequencyEducational Materials Contractor shall produce and distribute educational materials designed by the City that are geared towards younger audiences, such as educational videos, activity books, and Recycling posters. Contractor shall provide schools with copies of materials upon request forclassroom use.

As mutually agreed by City, Contractor, and the school district. Costs of this activity will be treated as a pass-through cost and added to annual Rate adjustments.

Technical Assistance: Diversion Opportunity Assessment
Offer on-going technical assistance to schools subscribing to Contractor’s services, including performing annual waste assessments, communicating with waste brokers where such arrangements exist, calculating Diversion rates, encouraging Reusables, and communicating the results to the City to improve existing school Recyclable Materials and Organic Materials programs. The annual waste assessments shall include a specific assessment of Food Waste generated on the school Premises; potential for source reduction and Diversion of Food Waste; and identification of Food Recovery education and programs that may be established, both internally (e.g., lunch share tables) and externally (e.g., partnerships with local Food Recovery Organizations and Services).

Offered to schools Upon Request.

Presentation Present curriculum to teach children how to Recycle, Compost, and reduce waste at school and at home.

At City or organization request
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December 3, 2020 Page C-16 City of Cupertino/Recology Franchise Exhibit C Public Education and Outreach | Special Events All printed materials also to be posted to the Company’s website as well as links to teacher resources.

Description Purpose Distribution/FrequencyEvent Exhibit Contractor shall staff an exhibit booth and distribute promotional and educational materials at special events. Contractor shall provide visual displays, copies of educational materials (including all guides, flyers, and brochures producedfor this Agreement), and Recyclable Materials and Organic Materials Diversion education activities appropriate to a variety of age groups. Display components will be professionally designed and created and shall be scalable to be appropriate for a variety of booth or display configurations. Materials will include those pertaining to theprograms provided under this Agreement as well as general information on “green” and/or sustainable behaviors.

All special events listed in Exhibit B7 of this Agreement. Other events at Customer request. 270
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PUBLIC EDUCATION & OUTREACH PLAN
December 3, 2020 Page C-17 City of Cupertino/Recology Franchise Exhibit C

5. Food Recovery Online List
A. Food Recovery Organizations and Food Recovery Services Online List. On or before February 1, 2022, the City shall develop a list of Food Recovery Organizations and Food Recovery Services operating within the City. Contractor will maintain the list on Contractor’s City-specific website, and the City will update the list annually. The online list shall contain information as described in this Exhibit C.

B. Education Materials for Food Recovery Organizations and Food Recovery Services Online List.

Minimum Content Requirements. The online list shall include, at a minimum, the following information about each Food Recovery Organization and each Food Recovery Service located within the City:
• Name and physical address;
• Contact information;
• Collection service area; and,
• An indication of types of Edible Food the Food Recovery Service or Food Recovery Organization can accept for Food Recovery.
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EXHIBIT D:

REPORTING REQUIREMENTS
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EXHIBIT D

REPORTING REQUIREMENTS
December 3, 2020 Page D-1 City of Cupertino/Recology Franchise Exhibit D

OVERVIEW
Records shall be maintained in forms and by methods that facilitate flexible use of data contained in them to structure reports, as needed, in accordance with this Exhibit and Article 6. Reports are intended to compile recorded data into useful forms of information that can be used to, among other things:

A. Determine and set Rates and evaluate the financial efficacy of operations.

B. Evaluate past and expected progress towards achieving Diversion goals and objectives.

C. Provide concise and comprehensive program information and metrics for use in fulfilling reporting requirements under Applicable Law.

D. Determine needs for adjustment to programs.

E. Evaluate Customer service and Complaints.

F. Determine Customer compliance with AB 341, AB 1826, Cupertino Municipal Code 6.24 Mandatory Organic Recycling for Business Structures, SB 1383, and any subsequent Statemandated or local Recycling requirements.

1. MONTHLY REPORT CONTENT
In accordance with Section 6.2, monthly reports shall be submitted by Contractor to the City and shall include the following information as well as a year-to-date summary page that includes the data submitted from the monthly report(s) submitted in the calendar year prior to the submittal of the current monthly report. Contractor shall report the information included in the following subsections.

A. Tonnage Report

1. Tonnage delivered to each Approved Facility by Customer Type, subtotaling and clearly identifying material type Tons, including Bulky Item materials, that are Diverted and those that are Disposed. For unweighed material (e.g., those listed in item 2 below), or material commingled with non-Cupertino material, a reasonable estimation/allocation methodology may be used, provided that it has been approved in writing in advance by the City Contract Manager.

2. Tons collected from regular accounts (as opposed to collected from C&D projects or special cleanouts) shall be reported in the appropriate section of the report by Customer Type, regardless of Container type (e.g., Drop Boxes or Compactors that are part of regularly subscribed Commercial service will be shown in the Commercial section of the Tonnage report).

3. Units of Used Motor Oil and Filters, E-Waste, U-Waste, and Bulky Items Collected by Customer Type, categorized by On-Call Collection or City-wide Recycling events.

4. If and to the extent available from the Approved Recyclable Materials Processing Facility, Recyclable Materials Tonnage marketed (by commodity and including average commodity value for each) and Processing Residue Tonnage Disposed. 274
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December 3, 2020 Page D-2 City of Cupertino/Recology Franchise Exhibit D

5. Copies of all statements and invoices for the month from each Approved Facility, documenting materials accepted by Processing contamination tier, as applicable, provided, however, that statements and invoices from the Approved Recyclable Materials Processing Facility may be made available for inspection by the City, instead of copies being provided.

B. Diversion Report. Contractor shall report the Diversion level for each month and the cumulative year-to-date Diversion level, where Diversion level shall be calculated as provided in Section

5.11.A.

1. Contractor shall report the monthly Diversion Rate by Customer Type and in aggregate for all Customer Types under this Agreement.

C. Revenue Report. Provide a statement detailing Gross Receipts pursuant to this Agreement.

D. Customer Subscription and Collection Report

1. A summary of Customer subscription data, including the number of accounts; the number of Customers subscribing to each Service Level listed separately by Customer Type and Discarded Material type.

2. Number of On-Call Collection, Bulky Item Collection, and Bin-by-the-Day Collection events by Customer Type.

3. Number of Customers subscribing to each City-approved service exemption by Customer Type; including the total number of de minimis waivers, physical space constraint waivers, and Collection frequency waivers granted in the month in accordance with Section 4.12, including the Customer name and address for each waiver.

4. The number of waivers reviewed and number of reverification inspections performed by Contractor pursuant to Section 4.12.2 of this Agreement in the month, if any, including a copy of documentation for each waiver review and reverification inspection.

5. Number of Extra Bag Tags used by Customers.

6. Number of incidences of contamination that renders the Used Motor Oil and Filter or used cooking oil unacceptable for Recycling or that requires Disposal as a Hazardous Waste.

E. Customer Service Report

1. Number of Customer calls listed separately by Complaints. For Complaints, list the number of calls separately by category (e.g., missed pickups, scheduled cleanups, billing concerns, damage claims, etc.). These Complaints and inquiries shall be documented and reported separately from SB 1383 noncompliance Complaints or other regulatory noncompliance Complaints.

2. Number of missed or incomplete Collections reported in total, and per one thousand (1,000) Service Opportunities in the City, presented in a graph format. 275
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December 3, 2020 Page D-3 City of Cupertino/Recology Franchise Exhibit D

3. Number of new service requests for each Customer Type and program.

4. Number of events of Discarded Materials being tagged with Non-Collection Notices summarized by the reason for tagging (e.g., inclusion of non-Recyclable or non-Compostable materials, improper set-out, Hazardous Waste, etc.), presented in a graph format.

5. Number of courtesy Collections summarized by the reason for leaving a Courtesy Notice (e.g., inclusion of non-Recyclable or non-Compostable materials, improper set-out, Hazardous Waste, etc.), presented in a graph format.

6. Beginning on January 1, 2022, record of SB 1383 non-compliance Complaints received, including the following information:
a. Total number of Complaints received and total number of Complaints investigated. b. Copies of documentation recorded for each Complaint received, which shall at a minimum include the following information: (i) The Complaint as received; (ii) The name and contact information of the complainant, if the Complaint is not submitted anonymously; (iii) The identity of the alleged violator, if known; (iv) A description of the alleged violation; including location(s) and all other relevant facts known to the complainant; (v) Any relevant photographic or documentary evidence submitted to support the allegations in the Complaint; and, (vi) The identity of any witnesses, if known.
c. Copies of all Complaint reports submitted to the City, pursuant to Section 4.10.2 of this Agreement.
d. Documentation of any follow-up inspections and/or outreach, if any, conducted upon City request pursuant to Section 4.10.2 of this Agreement, which shall include at a minimum: (i) The date Contractor investigated the Complaint; (ii) documentation of the findings of the investigation; and (iii) Any photographic or other evidence collected during the investigation. This reporting element can be met by use of a City-approved shared cloud-based documentation software such as Recyclist.

F. Education and Outreach
Items 1 through 4 below are required under SB 1383 and shall be included in the SB 1383 report as described in this Exhibit D, Section 1.G.12 below.

1. 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.

2. The number of Organic Waste Generators and Commercial Edible Food Generators that received information and the type of education and outreach used. 276
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December 3, 2020 Page D-4 City of Cupertino/Recology Franchise Exhibit D

3. For any mass distribution through mailings or bill inserts, provide a record of the date, a copy of the information distributed, and the type and number of accounts that received the information.

4. A copy of all electronic media, including the dates posted or sent of: social media posts, email communications, or other electronic messages.

5. Dates, times, and group or event names of any site visits, meetings, and events attended in the month. This reporting element can be met by use of a City-approved shared cloud-based documentation software such as Recyclist.

G. SB 1383 Related Reporting
Beginning January 1, 2022 and monthly thereafter, Contractor will report on the following items.

1. The number of Route reviews conducted, pursuant to Section 4.13 of this Agreement.

2. Description of Contractor’s process for determining the level of contamination during Route reviews.

3. A record of each inspection and contamination incident, which shall include, at a minimum:
a. Name and address of the Customer;
b. The date the contaminated Container was observed;
c. The staff who conducted the inspection;
d. The total number of violations found and a description of what action was taken for each;
e. Copies of all notices to Customers with Prohibited Container Contaminants; and, f. Photographic documentation.

4. Documentation of the total number of Containers Disposed of due to observation of Prohibited Container Contaminants;

5. Summary report of Courtesy Notices Non-Collection Notices, and/or contamination Processing fee assessment notices issued. Each notice shall include the date of issuance, Customer name, and service address.

6. A list of all Customers assessed contamination Processing fees, pursuant to Section 4.13 of this Agreement, reported separately by Customer Type, and including the Customer name, Customer address, and reason for the assessment of the contamination Processing fee; the total number of instances contamination Processing fees were assessed in the month; and, the total amount of fees collected in the month.
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EXHIBIT D

REPORTING REQUIREMENTS
December 3, 2020 Page D-5 City of Cupertino/Recology Franchise Exhibit D

7. Assessment documentation and notes for Multi-Family and Commercial Customer compliance reviews, including a list of Generators for which Contractor is unable to setup Collection service, as noted in Section 4.8 C of this Agreement.

8. Results of the waste evaluation studies conducted pursuant to Section 4.13.2 of this Agreement.

9. Summary of all loads of Recyclable Materials that were rejected at the Approved Recyclable Materials Processing Facility or the Designated Recyclable Materials Processing Facility, including: the date and time the load was rejected at the facility; Contractor’s truck number; the reason for rejection; the materials in the load that required the load to be landfilled; Contractor’s Disposal method; and, final destination for the rejected load.