CC 06-17-2025 Searchable Packet.pdf — Cupertino City Council, June 17, 2025 (part 2 of 6)

SIGNED:
________
Liang Chao, Mayor
City of Cupertino
________________________
Date
ATTEST:
________
Kirsten Squarcia, City Clerk
________________________
Date
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Resolution No. __________

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EXHIBIT A
Appropriation Amendment
by Fund
Appropriation
Amendment
Revenue
Amendment
Fund
Balance
(Use of)
CIP Fund (420)
$333,333.33 0
-
$333,333.3
3 General Fund (100) $4,000,000 $4,000,000 0
Total Appropriation
Amendment All Funds 4,333,333,33 $4,000,000 $-333,333.33 207
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CITY OF CUPERTINO
Agenda Item
25-13693 Agenda Date: 6/17/2025
Agenda #: 12.

Subject: Brush Abatement Program hearing to hear objections to proposed removal of brush and order abatement of the public nuisance; Resolution ordering abatement of potential fire hazard pursuant to Cupertino Municipal Code (Section 16.40.200) regarding Defensible space (brush) and Resolution No. 25-029

1.) Conduct Brush Abatement Program hearing to note objections of property owners having their name on the list of properties that have been non-compliant in removing brush; and

2.) Adopt the Resolution No. 25-048 ordering abatement of public nuisance and potential fire hazard pursuant to Cupertino Municipal Code (Section 16.40.200) regarding defensible space (brush) and Resolution No. 25-029 (Attachment A).

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CITY COUNCIL STAFF REPORT
Meeting: June 17, 2025
Subject
Brush Abatement Program hearing to consider objections to proposed removal of brush and order abatement of the public nuisance; and consideration of a resolution ordering abatement of potential fire hazard pursuant to Cupertino Municipal Code (Section

16.40.200) regarding Defensible space (brush) and Resolution No. 25-029.

Recommended Action

1.) Conduct Brush Abatement Program hearing to note objections of property owners having their name on the list of properties that have been non-compliant in removing brush; and

2.) Adopt the Draft Resolution ordering abatement of public nuisance and potential fire hazard pursuant to Cupertino Municipal Code (Section 16.40.200) regarding defensible space (brush) and Resolution No. 25-029 (Attachment A).

Discussion
Cupertino Municipal Code Section 16.40.200 requires property owners in the locally adopted Wildland-Urban Interface Fire Area (WUI) to maintain effective defensible space by removing brush, flammable vegetation and combustible growth when required by the Fire Code official due to steepness of terrain or other conditions. The Cupertino Brush Abatement Program - a separate program from the County Weed Abatement Program - authorizes the County Fire Department to remove the brush if the property owner does not, and to recover the costs of abatement. Notice of the brush abatement program and hearing was sent to the property owners on the notification list as prepared by the Santa Clara County Fire Department (County Fire).

On May 20, 2025, Council adopted Resolution No. 25-029 declaring brush to be a public nuisance and potential fire hazard and setting a hearing date of June 17, 2025 to hear property owners having any objections to the proposed removal of brush (Attachment E).

The attached Parcel Abatement List is a report of non-compliant properties with Wildland Safety Regulations provided by County Fire after inspections (Attachment B). 209
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2 The initial letter regarding Wildland Urban Interface (WUI) Enforced Safety Regulations related to flammable vegetation abatement was mailed to all Cupertino property owners on February 14, 2025 (Attachment C). This letter notified owners of their responsibilities and the inspection dates for compliance, required owners to return an information card indicating the status of their property before April 1, 2025, and stated that properties must comply with the Enforced Safety Regulations before June 1, 2025 to avoid abatement by the City’s authorized contractor. After this deadline, property owners not in compliance were notified of what work needs to be completed to comply with the Enforced Safety Regulations. Between May 13 and June 3, 2025, County Fire conducted inspections of the properties that were out of compliance. The Brush Hearing Letter (Attachment D) was sent to those properties that did not comply with the WUI Enforced Safety Regulations .

The letters were mailed to property owners on June 3, 2025.

Sustainability Impact
None
Fiscal Impact
There are no fiscal impacts at this step in the process. Any costs associated with the program are charged to property owners, as determined at the lien assessment hearing on July 15. The City Council holds the hearing, considers any disputes, and adopts a resolution placing a lien assessment on the properties to allow the County to recover the cost of weed and/or brush abatement.

City Work Program Item/Description
None
Council Goal
Quality of Life
California Environmental Quality Act
Weed abatement activities are exempt from the California Environmental Quality Act (CEQA) under CEQA Guidelines section 15304 (minor alteration to land). _____________________________________
Prepared by: Kirsten Squarcia, City Clerk
Approved for Submission by: Tina Kapoor, Acting City Manager Attachments:

A - Draft Resolution
B – 2025 Non-Compliant Properties List
C – WUI Letter Sent to All Property Owners
D – Brush Hearing Letter Sent to Non-Compliant Owners
E - Approved Resolution No. 25-029
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RESOLUTION NO. 25-

A RESOLUTION OF THE CUPERTINO CITY COUNCIL

ORDERING ABATEMENT OF PUBLIC NUISANCE AND POTENTIAL

FIRE HAZARD (BRUSH) PURSUANT TO CUPERTINO MUNICIPAL
CODE SECTION 16.40.200 REGARDING DEFENSIBLE SPACE (BRUSH) AND RESOLUTION NO. 25-029
WHEREAS, the Cupertino Municipal Code Section 16.40.200 requires property owners in the locally adopted Wildland-Urban Interface Fire Area (WUI) to maintain effective defensible space by removing brush, flammable vegetation and combustible growth when required by the fire code official due to steepness of terrain or other conditions.

WHEREAS, the City Council has declared that the growth of brush upon the private properties as described in Resolution No. 25-029 to be a public nuisance and potential fire hazard; and
WHEREAS, after due notice, a hearing thereon was held at a meeting of the City Council on June 17, 2025; and
WHEREAS, from the evidence presented, both oral and written, it appears to be in the best interests of the City to acquire jurisdiction over and abate said nuisance.

NOW, THEREFORE, BE IT RESOLVED:

1. That the Office of the Agricultural Commissioner is hereby ordered to abate such nuisance or cause the same to be abated by having the brush referred to destroyed or removed by cutting, discing, chemical spraying or any other method determined by him; that all debris, whether in piles or scattered, be hauled away;

2. That the Agricultural Commissioner and his deputies, assistants, employees, contracting agents or other representatives shall have express authorization to enter upon said private properties for the purpose of causing said public nuisance to be abated; and

3. That any affected property owners shall have the right to destroy or remove such brush or debris himself or herself or have the same destroyed or 211
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Resolution No. 25-

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removed at his/her own expense provided that such destruction or removal shall have been completed prior to the arrival of the Office of the Agricultural Commissioner or his authorized representative to destroy or remove them.

BE IT FURTHER RESOLVED:

1. That the Office of the Agricultural Commissioner shall keep account of abating said nuisance and embody such account in a report and assessment list to the City Council, which shall be filed with the City Clerk.

2. Said reports of costs, hearing and collection procedures involved shall be provided as stated in Cupertino Municipal Code Chapter 9.08.

PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino on the 17th day of June 2025, by the following vote:

Vote: Members of the City Council:

AYES:

NOES:

ABSENT:

ABSTAIN:

SIGNED:
________
Liang Chao, Mayor
City of Cupertino
________________________
Date
ATTEST:
________________________
Kirsten Squarcia, City Clerk
________________________
Date
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CITY OF CUPERTINO
Wildland Urban Interface (WUI) Enforced Safety
Regulations
2025 Non-Compliant Properties that Received Public
Hearing Letters
June 5, 2025
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A. Create 30 feet of defensible space around your home. To accomplish this, you must clear flammable vegetation a minimum of 30 feet around structures.

B. Remove pine needles, leaves, and other dead vegetation from roofs, eaves and rain gutters.

C. Trim tree limbs 10 feet from chimneys and stove pipes; remove dead limbs that hang over rooftops.

D. Remove all non-fire-resistive vegetation a minimum of 10 feet on each side of a fire apparatus access road or driveway.

E. Cover chimney outlets or flues with a 1/2” mesh spark arrester.

F. Post a clearly visible house address, using at least 4” high numbers, for easy identification. For homes located more than 50 feet from the street, post address numbers at the driveway entrance.

Additional Safety Recommendations
• Create and maintain a 5-foot noncombustible zone around all structures, including decks. • Clear 10 feet around and 15 feet above fuels (e.g., woodpiles, lumber, and scrap). Move woodpiles as far away as possible from all structures.
• Clear vegetation and other combustible material from underneath decks. Enclose elevated decks with fire-resistive materials.
• Trees 18 feet or taller should be limbed up 6 feet from the ground. Provide additional vertical clearance when trees have vegetation beneath them.

February 14, 2025
RE: <<Property Address>> / APN: <<APN>>
Dear Property Owner,
National Wildfire Community Preparedness Day will take place on Saturday, May 3 rd
. Take action
to protect your home and community against the threat of wildfire by attending one of several upcoming community wildfire preparedness workshops, see QR code below under the Resources and Information section.

As a property owner in a designated Fire Hazard Severity Zone of the Wildland Urban Interface, you must comply with the minimum fire-safe regulations. Self-inspections are a key component in achieving fire resilience for residents and the community. Included in this letter is a property self-inspection card. Please complete this card and return by mail or online using the provided QR code below under Option 1.

Your property is in a High/Moderate Fire Hazard Severity Zone of the Wildland Urban Interface Area and requires 30 feet of defensible space from all structures. Defensible space is the necessary buffer created around a structure when combustible vegetation is removed or reduced.

The enforced safety regulations for your property include:

Enforced Safety Regulations (Items A - F)

SANTA CLARA COUNTY FIRE DEPARTMENT
ATTN: FIRE PREVENTION DIVISION
1315 DELL AVENUE
CAMPBELL, CA 95008-6609
<<Owner Name>>
<<Owner Address>>
<<Owner City>>, <<Owner State>> <<Owner ZIP Code>>
<<Endorsement Line>>
<<Owner Name>>
<<Owner Address>>
<<Owner City>>, <<Owner State>> <<Owner ZIP Code>>

FFFFFFFFFFFFFFFFFFFF
PLACE
STAMP
HERE
CUPERTINO 30'
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Owner Responsibilities:

1. Please ensure that your property satisfies the listed requirements. You have the option to complete the required work yourself or hire a contractor. For information about vegetation abatement services, visit WeedAbatement.SCCgov.org or call 408.282.3145.

2. Please either complete and return the attached property self-inspection card OR scan the QR Code below (under Option 1) to report the current status of your property before April 1, 2025.

Inspection Schedule:

On April 1, 2025, SCCFD will begin conducting property inspections. Property owners not in compliance will be notified of what work needsto be completed to comply with the Enforced Safety Regulations.

Fourteen (14) days after the initial and subsequent inspections, we will conduct a re-inspection of the properties that were out of compliance. If your property fails to comply with Items A, B, C, or D of the Enforced Safety Regulations specified above, before June 1, 2025, the compliance work will be completed by the City of Cupertino's authorized contractor, and the charges for this service will appear on your next property tax bill.

If you would like to request a courtesy inspection, appointments will be available April 1 st through April
15th. To schedule a courtesy property inspection provided by SCCFD or for more information, please contact the Fire Prevention Division at [email protected] or call 408.341.4420.

Sincerely,
Hector R. Estrada, Deputy Chief
Fire Prevention Division
Choose ONE:

1. Scan the QR code below with a smartphone camera to submit your response online OR

2. Complete and mail the attached information card below.

Evacuation Zone ID:

Private Access Key: Or Online: qrs.ly/syej73x
<<ZoneID>>
<<AccessKey>>
Option 1 - Respond Online
I have received the annual Wildland Urban Interface (WUI) Enforced Safety Regulations letter related to flammable vegetation abatement. The current status of my property is as follows (choose one):
□ I have inspected my property for flammable vegetation clearance and believe it complies with the Enforced Safety Regulations. I understand that an inspection of my property may be conducted to verify compliance. □ I will remove flammable vegetation around all structures on my property in accordance with the Enforced Safety Regulations by the required time-frame. I understand that if the required work is not completed, the authorized contractor will complete the work and the charges will appear on my next property tax bill. □ I am no longer the owner of this property.
□ There are no structures on this property.

Name (print clearly): ____________________________________________________ Date: _________________ Phone: (______)____________________ Email: __________________________________________________ Property Address: <<Property Address>>
Option 2 - Respond by Mail
Resources and Information
California Department of Insurance: www.insurance.ca.gov • 800.927.4357 Provides information about all types of insurance, including insurance coverage and limits for high fire risk areas Santa Clara County FireSafe Council: www.SCCFireSafe.org • 408.975.9591 Protects and educates communities at risk from wildfire through fuel reduction programs, outreach and community planning efforts Santa Clara County Weed Abatement Program: WeedAbatement.SCCgov.org • 408.282.3145 Provides community education and hazard abatement services to protect communities from fire hazards Genasys Protect: Know Your Zone
Visit: protect.genasys.com to view/verify your Evacuation ZONE# Wildfire Preparedness
Workshops & Chipping
Program Information
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A. Create 100 feet of defensible space around your home. To accomplish this, you must clear flammable vegetation a minimum of 30 feet around structures. Additionally, create a reduced fuel zone for the remaining 70 feet (or to the property line).

B. Remove pine needles, leaves, and other dead vegetation from roofs, eaves and rain gutters.

C. Trim tree limbs 10 feet from chimneys and stove pipes; remove dead limbs that hang over rooftops.

D. Remove all non-fire-resistive vegetation a minimum of 10 feet on each side of a fire apparatus access road or driveway.

E. Cover chimney outlets or flues with a 1/2” mesh spark arrester.

F. Post a clearly visible house address, using at least 4” high numbers, for easy identification. For homes located more than 50 feet from the street, post address numbers at the driveway entrance.

February 14, 2025
RE: <<Property Address>> / APN: <<APN>>
Dear Property Owner,
National Wildfire Community Preparedness Day will take place on Saturday, May 3 rd
. Take action to
protect your home and community against the threat of wildfire by attending one of several upcoming community wildfire preparedness workshops, see QR code below under the Resources and Information section.

Please complete this card and return by mail or online using the provided QR code below under Option 1.

Your property is in a Very High Fire Hazard Severity Zone of the Wildland Urban Interface Area and requires 100 feet of defensible space from all structures. Defensible space is the necessary buffer created around a structure when combustible vegetation is removed or reduced. The enforced safety regulations for your property include:

Enforced Safety Regulations (Items A - F)

FFFFFFFFFFFFFFFFFFFF
PLACE
STAMP
HERE
CUPERTINO 100'
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Owner Responsibilities:

2. Please either complete and return the attached property self-inspection card OR scan the QR Code below (under Option 1) to report the current status of your property before April 1, 2025.

Inspection Schedule:

Fourteen (14) days after the initial and subsequent inspections, we will conduct a re-inspection of the properties that were out of compliance. If your property fails to comply with Items A, B, C, or D of the Enforced Safety Regulations specified above, before June 1, 2025, the compliance work will be completed by the City of Cupertino’s authorized contractor, and the charges for this service will appear on your next property tax bill.

If you would like to request a courtesy inspection, appointments will be available April 1 st through
April 15th. To schedule a courtesy property inspection provided by SCCFD or for more information, please contact the Fire Prevention Division at [email protected] or call 408.341.4420.

Sincerely,
Hector R. Estrada, Deputy Chief
Fire Prevention Division
Choose ONE:

1. Scan the QR code below with a smartphone camera to submit your response online OR

2. Complete and mail the attached information card below.

Evacuation Zone ID:

Name (print clearly): ____________________________________________________ Date: _________________ Phone: (______)____________________ Email: __________________________________________________ Property Address: <<Property Address>>
Option 2 - Respond by Mail
Resources and Information
California Department of Insurance: www.insurance.ca.gov • 800.927.4357 Provides information about all types of insurance, including insurance coverage and limits for high fire risk areas Santa Clara County FireSafe Council: www.SCCFireSafe.org • 408.975.9591 Protects and educates communities at risk from wildfire through fuel reduction programs, outreach and community planning efforts Santa Clara County Weed Abatement Program: WeedAbatement.SCCgov.org • 408.282.3145 Provides community education and hazard abatement services to protect communities from fire hazards Genasys Protect: Know Your Zone
Visit protect.genasys.com to view/verify your Evacuation ZONE# Wildfire Preparedness
Workshops & Chipping
Program Information AlertSCC.org
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Dear Property Owner,
Your property is located in the designated Wildland Urban Interface (WUI) Hazardous Fire Area which requires defensible space to be maintained around all structures on your property.

Defensible space is the buffer created when combustible vegetation is removed or reduced around a structure to slow or stop the spread of wildfire. On February 14, 2025, Santa Clara County Fire Department mailed to you a letter regarding the enforced applicable wildland fire safety regulations and this year’s property inspection schedule mandating compliance of the enforced applicable wildland fire safety regulations before June 1, 2025.

Your property was recently re-inspected by the Santa Clara County Fire Department on <<Re-Inspection date>>. At that time, your property was found to be non-compliant with the applicable wildland fire safety regulations. The noted violation details are listed below:
<<Violations>>
<<Inspector comments>>
On May 20, 2025, the Cupertino City Council passed a resolution declaring that hazardous vegetation (brush) growing in such locations as to become a fire menace or which are otherwise noxious or dangerous may be declared a public nuisance which must be abated by the removal of said hazardous vegetation. For further particulars, please refer to said resolution.

We are informed by the City of Cupertino that the Cupertino City Council will hold a public hearing at the City Council meeting on Tuesday, June 17, 2025 @ 6:45 pm. For more information on this process, please contact the Cupertino City Clerk’s Office at 408.777.3223 or visit https://www.cupertino.gov/Your-City/Departments/City-Clerk.

At that time, all properties identified by the Fire Department as being non-compliant with the applicable wildland fire safety regulations will be declared to have hazardous conditions requiring abatement. An additional inspection of all identified properties will be conducted after the hearing and prior to ordering any abatement work. <<Date>>
<<Owner Name>>
<<Owner Address>>
<<Owner City>>, <<Owner State>> <<Owner ZIP Code>>
RE: <<Property Address>> / APN: <<APN>>
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If you do not bring your property into compliance, the City of Cupertino through its contractor, may perform any brush or weed removal at your expense and will be placed on your property tax bill for payment after legal requirements are met. If you would like more information about the hazardous vegetation abatement contractor services, please contact the County of Santa Clara Weed Abatement Program at 408.282.3145 or visit https://weedabatement. sccgov.org. For your convenience, a price list indicating the rates for the County Contractor is enclosed.

If you have questions about this notice, please contact the Fire Prevention Division of the Santa Clara County Fire Department at 408.341.4420 or email [email protected].

Fire Prevention Division

SANTA CLARA COUNTY FIRE DEPARTMENT
408.341.4420
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CITY OF CUPERTINO
2025 COUNTY CONTRACTOR WEED ABATEMENT FEES
Properties in the Weed Abatement Program, you will be responsible for an annual inspection fee of $105.00 per parcel.

Please be advised that the property owner of any parcel found to be non-compliant on or after the April 1st deadline will be charged a processing fee of $597.00 and the property will be scheduled for abatement by the County contractor. If you complete the abatement work before the County contractor performs the abatement, you will not incur further charges. Should the abatement work be performed by a County contractor, you will be assessed the contractor’s charges plus a County administrative fee of $961.00 per parcel. For those parcels requiring a warrant a fee of $1,323.00 per parcel will be assessed.

A) Disc Work**
Discing First Pass 0-12,500 sq. ft. $ Per Lot $291.00 - $425.00 Discing First Pass 12,501 - 1 Acre $ Per Lot $338.00 - $425.00 Discing First Pass 1+ Acre $ Per Acre $152.00 - $309.00 Discing Second Pass 0-12,500 sq. ft. $ Per Lot $180.00
Discing Second Pass 12,501 - 1 Acre $ Per Lot $225.00
Discing Second Pass 1+ Acre $ Per Acre $130.00 - $151.00 **It is required that parcels be disced twice a year. The cost for the first discing is higher due to additional work normally required during the first discing.

B) HANDWORK $5.09 - $5.73 per 100 sq. ft.

C) FLAIL MOWING 6 Foot Mower $10.97 PER 1,000 SF
12 Foot Mower $10.97 PER 1,000 SF
D) LOADER WORK $185.00 PER HOUR
E) DUMP TRUCK $185.00 PER HOUR
F) BRUSH WORK $4.84 - $5.47 PER 100 SF
G) DEBRIS REMOVAL $TBD
H) DUMP FEE 100% (Added to orders with debris removal at 100% of the dump site charge)
Please note this program does not offer herbicide application as a method of abatement. 220
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RESOLUTION NO. 25‐029

A RESOLUTION OF THE CUPERTINO CITY COUNCIL

DECLARING PROPERTIES AS HAVING POTENTIAL FIRE HAZARDS

FROM BRUSH AND SETTING A PUBLIC HEARING TO DECLARE A

PUBLIC NUISANCE AND FOR OBJECTIONS TO PROPOSED REMOVAL
WHEREAS, brush is growing in the City of Cupertino upon certain streets, sidewalks, highways, roads and private property; and
WHEREAS, said brush may attain such growth as to become a fire menace or which are otherwise noxious or dangerous; and
WHEREAS, said brush appears to be a public nuisance;
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Cupertino does hereby declare:

1. That said brush does now appear to be a public nuisance and potential fire hazard;

2. That said condition and potential fire hazard exists upon all of the streets, sidewalks, highways, roads, and private property more particularly described by common names or by reference to the tract, block, lot, code area, and parcel number on the report to be provided by the Santa Clara County Fire Department;

3. That the 17th day of June, 2025, at the hour of 6:45 p.m., or as soon thereafter as the matter can be heard, in the Council Chamber in the Community Hall, City of Cupertino and via teleconference, with details on how to attend the meeting appearing on the City Council agenda for that date, are hereby set as the time and place to determine whether the condition is a public nuisance and where all property owners having any objections to the proposed removal of such brush may be heard;

4. That the Santa Clara County Fire Marshal is hereby designated and ordered as the person to give notice of the adoption of this resolution in the manner and form provided in Section 16.40.200 of the Cupertino Municipal Code.
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Resolution No. 25‐029

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PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 20th day of May, 2025, by the following vote:

Members of the City Council
AYES:      Chao, Moore, Fruen, Mohan, Wang
NOES:   None
ABSENT:   None
ABSTAIN:  None
SIGNED:

Liang Chao, Mayor
City of Cupertino
Date
ATTEST:

Kirsten Squarcia, City Clerk Date
06/03/2025
06/03/2025
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Exhibit A

CITY OF CUPERTINO
Wildland Urban Interface (WUI) Enforced Safety
Regulations
2025 Non-Compliant Properties &
Remaining Properties to be Inspected
May 12, 2025
Addresses with Active Violations
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Addresses to be Inspected
22265 Canyon View Circle, Cupertino
22255 Canyon View Circle, Cupertino
22245 Canyon View Circle, Cupertino
22275 Canyon View Circle, Cupertino
220022 Lindy Lane, Cupertino
22041 Lindy Lane, Cupertino
22071 Lindy Lane, Cupertino
21992 Lindy Lane, Cupertino
21952 Lindy Lane, Cupertino
21912 Lindy Lane, Cupertino
21902 Lindy Lane, Cupertino
22001 Lindy Lane, Cupertino
21882 Lindy Lane, Cupertino
21962 Lindy Lane, Cupertino
21932 Lindy Lane, Cupertino
22061 Lindy Lane, Cupertino
22022 Lindy Lane, Cupertino
11387 Lindy Place, Cupertino
11497 Lindy Place, Cupertino
11496 Lindy Place, Cupertino
11457 Lindy Place, Cupertino
11406 Lindy Place, Cupertino
11486 Lindy Place, Cupertino
11456 Lindy Place, Cupertino
11477 Lindy Place, Cupertino
11446 Lindy Place, Cupertino
11701 Regnart Canyon Drive, Cupertino
11741 Regnart Canyon Drive, Cupertino
11700 Regnart Canyon Drive, Cupertino
11640 Regnart Canyon Drive, Cupertino
11691 Regnart Canyon Drive, Cupertino
11690 Regnart Canyon Drive, Cupertino
11680 Regnart Canyon Drive, Cupertino
11670 Regnart Canyon Drive, Cupertino
11621 Regnart Canyon Road, Cupertino
11650 Regnart Canyon Road, Cupertino
22025 Regnart Road, Cupertino
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CITY OF CUPERTINO
Agenda Item
24-13556 Agenda Date: 6/17/2025
Agenda #: 13.

Subject: Approve agreements for post-collection services and destination facilities for garbage and construction and demolition (C&D) debris with attendant rate increases

1. Adopt Resolution No. 25-049 approving the following agreements for post-collection services, and authorize the City Manager to execute the agreements in substantially the same form as presented:
a. An Agreement with Zanker Road Resource Management, LLC for solid waste construction and demolition (C&D) material processing services to begin November 21, 2025, with a ten-year term b. An agreement with International Disposal Corporation of California, Inc., for disposal of garbage at Newby Island Sanitary Landfill Facility with a ten-year term c. A Merchant agreement with the City of Sunnyvale for garbage processing at the Sunnyvale Materials Recovery and Transfer Station (SMart Station) and residue disposal for a term of 20 years

2. Adopt Resolution No. 25-050 approving Budget Modification #2526-395 increasing appropriations in the Resource Recovery (Fund 520) budget by $35,000 through the use of fund balance to cover differences in disposal and C&D processing cost during the period between November, 21 2025 and January 31, 2026, allowing customer rates to remain unchanged until the beginning of Recology's Rate Period Six, which begins February 1, 2026
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CITY COUNCIL STAFF REPORT
Meeting: June 17, 2025
Subject
Approve agreements for post-collection services and destination facilities for garbage and construction and demolition (C&D) debris with attendant rate increases.

Recommended Actions

1. Adopt Resolution No. 25-___ approving the following agreements for postcollection services, and authorizing the City Manager to execute the agreements in substantially the same form as presented:
a. An agreement with Zanker Road Resource Management, LLC for solid waste construction and demolition (C&D) material processing services to begin November 21, 2025, with a ten-year term.
b. An agreement with International Disposal Corporation of California, Inc., for disposal of garbage at Newby Island Sanitary Landfill Facility with a ten-year term.
c. A Merchant agreement with the City of Sunnyvale for garbage processing at the Sunnyvale Materials Recovery and Transfer Station (SMaRT Station®) and residue disposal for a term of 20 years.

2. Adopt Resolution No. 25-XXX approving Budget Modification #2526-395 increasing appropriations in the Resource Recovery (Fund 520) budget by $35,000 through the use of fund balance to cover differences in disposal and C&D processing cost during the period between November 21, 2025 and January 31, 2026, allowing customer rates to remain unchanged until the beginning of Recology’s Rate Period Six, which begins February 1, 2026.

Executive Summary
For the last thirty-six years, Cupertino’s garbage (all materials placed in gray carts or bins) has been collected by Recology’s garbage trucks and taken directly to Newby Island Sanitary Landfill Facility (Newby Island) for disposal, currently operated by International Disposal Corporation of California, Inc. (IDC). Construction and 226
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demolition (C&D) debris is also collected by Recology and taken to Newby Island for processing to recover recyclable materials. The agreement covering both those services will expire on November 20, 2025, and new agreements need to be executed.

Following a Request for Proposals (RFP) process directed by City Council in 2023 and parallel negotiations with the City of Sunnyvale, staff is recommending approval of three new agreements as noted in the recommended actions. One directs C&D material to a new facility to increase diversion, one allows garbage to continue being taken to Newby Island, and the third would send garbage to be processed (after a planned facility upgrade is complete in 2027), reducing the tons going to landfill by half.

The Recology franchise hauling agreement is not part of today’s action but will need to be amended at a future date with Council’s approval to make conforming changes to reflect updated approved destination facilities.

Changes to the customer rates pursuant to these new agreements would begin at the normal rate adjustment period effective February 1, 2026. For construction debris boxes, rates will increase 7% - 10% (an estimated $46 - $115 extra) for mixed materials. For landfill service, rates will increase $0.06/month for the average resident. These changes would be in addition to the annual index-based adjustment for Recology’s operations.

These agreements do not affect the City of Cupertino's General Fund because garbage rate payers (residents, businesses, and construction projects) pay for the services through their garbage rates.

If the City chooses to pursue an agreement for garbage processing, it could cost the average residential customer an estimated additional $6.25 per month (about 14%) starting in 2027. With that increase, Cupertino’s per-month garbage rates would continue to be commensurate with rates charged in surrounding cities (see Figure 1).

Figure 1
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Background
The City has an agreement for waste collection with Recology for all streams of waste (garbage, recyclables, compostables, and C&D debris). Recology subcontracts for processing of recyclables (blue cart items) and compostables (green cart items). The Recology agreement has a term ending in 2031 and is not part of this discussion.

Disposal costs account for a small portion of the Recology rates charged to residents and businesses through the Recology rate structure as “pass-through” costs. Recology does not have control over those costs since they are established through an agreement between the City and the disposal or destination facility. Changes to Recology’s rates as a result of the agreements discussed here would be incorporated into the customer garbage rates at either the regular rate adjustment interval effective February 1 each year, or at a different interval under a special rate adjustment process. City Council does not set Recology’s rates, but it does approve rate schedules before they can be applied.

The City currently has one agreement that covers both garbage (disposal of material placed into gray carts) and C&D debris (handling of material placed into debris boxes at construction sites). That agreement is with IDC, which operates Newby Island Landfill.

The agreement ends November 20, 2025, and new agreements need to be established to secure destination facilities for garbage and C&D debris.

These agreements do not affect the City of Cupertino's General Fund because garbage rate payers (residents, businesses, and construction projects) pay for the services 228
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through their garbage rates. The City’s role is to set standards, establish agreements for the service, and monitor performance.

City Council last considered this topic on May 2, 2023, and directed staff to conduct a Request for Proposals (RFP) for garbage and C&D debris disposition services, including consideration of options to process garbage for recovery of organic and other recyclable materials. At that meeting staff presented an estimated rate increase between $5 - $8/month for processing, and Council had expressed interest in this service if the negotiated rates met the estimate.

Reasons for Recommendation and Available Options
RFP Process
Following direction from City Council to conduct an RFP, Staff worked with the City Attorney’s Office, the Purchasing Manager, and HF&H Consultants, Inc., to design a robust RFP process. Initially the intent was to include garbage processing in the RFP.

However, at the time of the RFP only one garbage processing facility, within a reasonable geographic distance, had permitted capacity to accept additional tons. That facility is the Sunnyvale Materials Recovery and Transfer Station (SMaRT Station®), owned by the City of Sunnyvale. As Sunnyvale and Cupertino are both public agencies, staff began sole discussions with Sunnyvale, as permitted by Cupertino Municipal Code (CMC) section 3.22.070 B.1, and removed garbage processing from the RFP process. For transparency, the RFP included information about the City’s intent to have that parallel discussion and the plan to bring all options to City Council for consideration.

The RFP covered the two remaining services: landfill disposal and C&D debris processing and disposal. Proposers had the option to submit a proposal just for landfill services, just for C&D debris processing services, or both. The RFP was posted on July 31, 2024, and two proposals were received by the closing date of September 12, 2024. The two proposers each responded to both services. Staff worked with the Purchasing Manager to conduct thorough evaluations of the proposals, including site visits and interviews. The outcome of that process was Zanker Road Resource Management, LLC as the winning proposer for C&D debris processing at their Zanker Road facility, and International Disposal Company, Inc. as the winning proposer for landfill disposal at Newby Island.

Construction and Demolition (C&D) Debris
Per CalGreen, construction projects are required to divert 65% of their debris from landfill. Source separation at project sites can help, but for mixed materials more sophisticated sorting processes increase diversion rates significantly. Zanker Road Resource Management, LLC’s proposal was superior due to higher diversion rates and third-party certification of diversion operations, increasing likelihood of compliance with required diversion rates. The Zanker Road facility off of highway 237 between Milpitas and Alviso, has multiple processing lines for C&D materials that are all third229 CC 06-17-2025
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party certified as achieving the stated diversion rates, as well as a certification for the facility as a whole. As part of the building permit review process, staff tracks C&D debris for all projects with a project value greater than $100,000. Currently, projects may choose whether to use Recology debris boxes under the franchise, which must be taken to Newby, or they can choose to self-haul materials to a third-party certified facility.

Over the past twelve months, 120 projects were routed to the Zanker facility with 84% of the materials getting diverted. Twenty-five projects sent material to Newby, with 47% of the materials diverted. The rate impact to debris box customers is expected to be around $46 - $115 extra per debris box of mixed C&D materials, depending on the types and weights of materials. For example, a 16 cubic yard debris box that costs $701 would increase to $747, or a 30 cubic yard box from $1269 to $1384, a 7% - 9% increase. Tons of C&D debris generated by projects can vary widely depending on construction activity.

Over the past year Cupertino generated over 4,000 tons of material that went to Newby Island or were self-hauled to other facilities. Starting November 21, 2025, upon execution of the agreement presented with this staff report, C&D materials would be routed from Newby to Zanker for processing.

Landfill Disposal
International Disposal Company, Inc. (IDC) won the RFP process for landfilling material at Newby Island Landfill, which is in the Milpitas area. The other proposal was far more expensive and involved transferring garbage to a landfill out of the county. Newby Island Landfill is where Recology currently hauls all of Cupertino’s garbage. While the landfill is nearing permitted capacity, IDC guarantees ten years of capacity for Cupertino’s estimated 15,000 tons of garbage per year. The agreement that staff negotiated includes language to allow Cupertino to exit the agreement early should Council direct staff to divert garbage to be processed, either to the SMaRT Station® upon completion of the planned upgrade, or at a later date. The per-ton cost of disposal is built into the residential rates and accounts for roughly 5% of the total rate. Cupertino has approximately 13,787 residential garbage accounts that generated 6,372 tons of garbage in 2024. Distributed equally, that’s about 0.46 tons per single-family residential account (924 lbs. per year). For residential customers with a 32-gallon cart (the most common size) the difference attributable to the new per-ton cost for Newby Island Landfill would be approximately $0.06/month, effective beginning Rate Period Six (February 1, 2026).

Discussions with Sunnyvale for Use of the SMaRT Station® for Processing Garbage Due to only one facility in the area having capacity to provide garbage processing services, staff began negotiations with the City of Sunnyvale for these services at the SMaRT Station®. Cupertino has considered use of the SMaRT Station® since 2016:
 The possibility was discussed at a Council study session on October 18, 2016.  On February 14, 2018, Cupertino received a formal letter from Sunnyvale regarding “Invitation to Explore Future Use of the SMaRT Station®.” 230
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 On October 25, 2018, the topic was presented as an Item of Interest, after thenInterim City Manager Amy Chan received a letter from Sunnyvale’s City Manager providing a status update on discussions.
 On August 6, 2019, Council adopted Resolution 19-104 “A Resolution of the Cupertino City Council Declaring Interest for the Participation by the City of Cupertino in the Initial Planning for Potential Future Use of the Sunnyvale SMaRT Station®.”
 On June 27, 2023, Sunnyvale staff received direction from their City Council to provide a proposal to Cupertino for use of the SMaRT Station®.

Processing vs Landfilling
For broader context, there are two options for garbage disposition in the Bay Area – send it directly to a landfill or send it to be processed first. Processing garbage involves sending it to a facility that uses machinery and human sorters to pull recyclable and compostable materials out of the garbage, reducing the amount that has to go to landfill.

The SMaRT Station® currently pulls out approximately one third of arriving garbage tons as recyclable or compostable material (Figure 2). This process essentially “rescues” those materials that were erroneously thrown away so that they can be diverted for recycling or composting, reducing the tons that go to landfill. The SMaRT Station® will undergo a major equipment upgrade in 2026 which is expected to raise that “rescue” rate to at least one half of arriving tons. Processing garbage supports compliance with SB1383 and would complete action item W1.2 in the City’s adopted Climate Action Plan (CAP) 2.0.

Figure 2
What Is Currently Thrown Away in the Garbage in Cupertino? Per the results of Cupertino’s most recent waste characterization study conducted in summer 2024, over sixty percent of what is getting thrown away as garbage is recoverable, meaning it should have been placed in either the green or blue containers for recycling and composting. (Error! Reference source not found.3). 231
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Figure 3
That finding is notable given that staff has been providing service, outreach, and education for many years, including more intensely as required after the implementation of SB1383, California’s Short-Lived Climate Pollutant Reduction Strategy.

Cupertino is not alone in finding it challenging to encourage residents and visitors to sort properly. Per data provided by the City of Sunnyvale, garbage arriving from Sunnyvale and Mountain View also includes a high volume of recoverable items, and the composition of the diverted materials shows a majority is compostable organics, similar to what was found in Cupertino’s waste characterization (Figure 4).

Figure 4
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Meanwhile, the number of tons of material placed into gray bins in Cupertino has continued to increase, and those tons are currently taken directly to Newby Island with no processing. (Figure 5).

Figure 5
Per results in the most recent community survey, 55% of respondents said they put food waste in their green bin. Routing garbage for processing would enhance compliance with SB1383 considerably – essentially providing a fail-safe for when education and enforcement falls short in changing behavior.

SMaRT Station® Agreement Options
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Sunnyvale has two options for jurisdictions seeking to use the SMaRT Station®: Partner or Merchant agreements. If Council decides to pursue one of these options, staff recommends waiting to send garbage there until after the SMaRT Station® completes its extensive upgrade project. The upgrade is scheduled to begin shortly after Cupertino’s current agreements expire and will require a significant period of downtime (at least six months) during which no processing of garbage will happen. For that reason, exploration of the use of the SMaRT Station® has focused on use of their services after the upgrade, which is anticipated to be complete by the end of 2026. For either of the two options, material remaining after processing is sent to Kirby Canyon Landfill under an agreement that Sunnyvale maintains with Waste Management.

Partner Option
The Partner option means that Cupertino could join Mountain View and Sunnyvale as partners in the use and operation of the SMaRT Station®. Partnership offers a lower perton rate for arriving material compared to the Merchant option, while also carrying the added risk of sharing in the cost of operations. Partnership also allows access to ancillary services at the SMaRT Station®, which includes drop-off area for e-waste, paint, recyclables, motor oil, etc. and other services such as document shredding events and extra dump days as noted below.

The per-ton “tip fee” to be paid on every arriving ton of garbage from Cupertino includes anticipation of equipment repair and replacement and any other regularly expected costs. However, the number of tons arriving at the station fluctuates year to year from each partner, meaning the revenue from tip fees also fluctuates while certain costs remain fixed. There could also be costs outside of what is anticipated, although Sunnyvale staff consider that an unlikely risk and Sunnyvale, as the managing partner, maintains a fund as a buffer.

On the revenue side, marketable materials pulled from the garbage result in revenues credited to each partner. All cost and revenue is tallied quarterly and reconciled annually. During the annual reconciliation, the cost of unforeseen expenses, if any, are divided amongst the partners in proportion to the tons each partner delivers to the SMaRT Station®. Revenues from marketable recovered materials are similarly credited, and any difference is either invoiced or credited to the partners. Cupertino would be expected to bring approximately seven percent (7%) of the overall material arriving to the station, and would participate financially based on roughly that percentage which could fluctuate over time. Arriving tons are analyzed quarterly and participation percentage is recalculated regularly in order to fairly share costs and revenues.

Partnership presents additional possible benefits. For instance, if Sunnyvale adds more partners, the expenses are further distributed, reducing each partner’s cost. Sunnyvale is actively working to add partners and has capacity to accept additional material.

Likewise, if Sunnyvale receives grant funding, as they did recently for a portion of their NextGen equipment upgrade, those savings are passed along to the partners. 234
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Partnership cost and reward is based on actual tonnages received from each partner and percent of utilization overall. As a public agency, the City of Sunnyvale operates the SMaRT Station® with transparent finances and without profit as a goal.

The City of Sunnyvale, as the managing partner, is funding the NextGen upgrade project through bonds. Debt service on those bonds is included in the tip fees, but is also addressed in the partnership Assumption Agreement, calling out the obligation.

Sunnyvale and Mountain View both have budget stabilization funds dedicated to handling the revenue or expense that results from the annual reconciliation process.

The Partner option includes:
 Sharing in costs and revenues proportionally between the partners. Costs may go beyond what is collected in the per-ton tip fees.
 Participation in facility oversight and planning discussions.  Lower per-ton rate (compared to the Merchant option).  Credit for marketed materials rescued from the garbage (potentially $8,000 - $10,000/year).
 Access for residents to ancillary services available 7 days per week at no additional cost:
o Drop-off of electronic waste, used paint, antifreeze, motor oil, cooking oil batteries, medical “sharps”
o Drop-off of flattened cardboard, scrap metal, and other recyclable materials
o Drop-off of mattresses
o Access to the “Reuse Trailer” where usable furniture or other types of items are available to take
o Pickup of compost and mulch (currently available under short term agreement)
 Other services available periodically at no additional cost:
o Confidential document shredding events three times per year. o Free dump days for disposing of extra unwanted material.  A option which is situated closer for disposal of extra self-hauled garbage.

Merchant Option
The Merchant option would be simpler, but more expensive (approximately $0.25 per month), and will not provide access to ancillary services at the SMaRT Station® drop-off area. The per-ton tip fee for material arriving at the SMaRT Station® from Cupertino is $5/ton more than the Partner option tip fee, but it would be a set fee per ton and would increase only by CPI with periodic cost-based adjustments similar to Cupertino’s agreement with Recology. There would be no collaboration or involvement in the operation or decision-making at the SMaRT Station®. While there would be no opportunity to share in increased revenue or reduced costs, and Cupertino would receive no credit for marketed materials pulled from the garbage, all expenses would be captured in the per-ton rate and there would be no risk of any unbudgeted additional 235
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financial obligations. Residents would not have access to the SMaRT Station®’s ancillary services (e-waste and other material drop-off, Reuse trailer access, etc. as listed above).

While there is convenience to having access to those ancillary services available seven days a week, most of the services offered are available currently to residents through the Recology agreement (Environmental Days with document shredding and e-waste dropoff, extra on-call collections of material, pick-up of batteries and oils) or other third-party no-cost services that will accept paint, medicines, and medical sharps.

Cost Difference Between Partner and Merchant Options
The Partner per-ton price difference is estimated to save Cupertino ratepayers over $2.6M during a 20-year term compared to the Merchant option, assuming there are no unanticipated expenses that might be passed along to partners. The following table (Figure 6) shows the expected additional monthly cost for processing based on the type of agreement and the term.

Figure 6
Merchant Agreement Recommendation
The Partner agreement option presents a slightly lower rate impact to residents, additional services, the potential to realize gain from the sale of recyclables, and participation in the operation of the SMaRT Station®. However, it also brings the possibility of expenses that go beyond what is captured in the per-ton tip fees and creates complications through the need to establish a “Buffer Fund” to address these costs. Further, the partnership agreement would result in Cupertino having obligations as part of the debt service on the bonds that Sunnyvale will use to fund the upgrade to the station. Staff is unable at this time to fully outline the scope of those financial risks and obligations, as Sunnyvale has not yet completed those transactions. For that reason, and due to the consistency of the Merchant agreement rates as well as the small percentage increase to monthly rates (approximately 0.5%), staff recommends executing a Merchant agreement now while retaining the option to explore partnership in the future.

Sustainability Impact
Routing garbage for processing:
 Would complete a recommended climate change mitigation strategy identified in the City’s adopted Climate Action Plan (CAP) 2.0 under action item W1.2.  Supports the Sustainability Commission’s recommendation to route collected garbage for processing to increase diversion before final disposal. (October 17, 2024).
 Supports two items in the City’s adopted Zero Waste Policy (Resolution 17-122):
o Item #1 to “Reduce the amount of waste being generated and disposed of by Cupertino employees, businesses and residents.”
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o Item #12, to “Pilot and steadfastly work to expand collection and processing programs that result in materials being diverted from the landfill to their highest and best use, and innovative, cost effective programs that reduce waste generation.”
 Supports Policy INF-7.1 in the City’s General Plan to “Coordinate with solid waste system providers to utilize the latest technology and best practices to encourage waste reduction and meet, and even, exceed State targets.” Fiscal Impact
These agreements do not affect the City of Cupertino's General Fund because garbage ratepayers (residents, businesses, and construction projects) pay for the services through their garbage rates as billed by Recology. The City’s role is to set standards, establish agreements for the service, and monitor performance.

Rate Impacts to Customers
The following rate impacts (Figure 7) reflect the likely additional expense to ratepayers due only to the change in the destination facility, if implemented this year. As shown, a longer term with the SMaRT Station® brings an overall lower rate. These changes would be in addition to annual index-based or cost-based adjustments to rates detailed in the Recology franchise agreement that occur annually. As discussed earlier in this report, use of the SMaRT Station® is contemplated after upgrades have been completed, so changes to rates are presented as a lookahead for the purpose of decision-making and rates would not actually take effect until Rate Period Seven starting February 1, 2027, if completion of the upgrades to the SMaRT Station® stay on schedule.

Figure 7
*The term of this agreement is 10 years only due to available capacity Community Willingness and Rate Comparisons with Surrounding Cities A 2020 survey of the community specific to waste topics showed 43.2% of respondents were willing to pay more for garbage to be sorted, 44.3% were against, and 12.4% were unsure. Figure 8 below shows how these various options (direct to landfill, processing under a 10-year merchant agreement, and processing under a 20-year partner agreement) would impact rates and how those impacted rates would compare with surrounding cities.

Figure 8
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Use of Resource Recovery Fund 520 During Interim Period November 21, 2025 – January 31, 2026
Rates are charged by Recology and incorporate the costs of handling or disposing of material after collection. For Recology, those are costs they do not control and must pass them through to the ratepayers based on the agreements the City executes. The next rate period begins February 1, 2026, but the City’s current agreement with IDC ends on November 20, 2025, presenting the City with an interim period of just over ten weeks.

For this interim period between November 21, 2025 – January 31, 2026, staff recommends that Recology invoice the City for the difference between current disposal rates and the new rates. The City can use the Resource Recovery Fund 520 to cover that difference, which would be expected to be around $20,000 total for the regular garbage accounts. The difference in C&D debris processing cost is harder to estimate because it is variable depending on construction projects and the composition of the material streams, but is expected to be no more than $15,000 total based on average debris box tons per month during 2024. That use of the Resource Recovery Fund is an allowable use for the benefit of ratepayers and avoids administrative burden to effect an earlier rate change to the customers. City Council will consider the Rate Period Six rates at a Council meeting before the end of the calendar year. To accommodate that, staff requests Budget Modification #2526-395 to increase appropriations in the Resource Recovery budget for FY 25-26 in the amount of $35,000.

City Work Program (CWP) Item/Description
None
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Council Goal:

Environmental Sustainability
California Environmental Quality Act
No California Environmental Quality Act impact anticipated. Negative Declarations will be prepared before commencement of chosen services and facilities. _____________________________________
Prepared by: Ursula Syrova, Environmental Programs & Sustainability Manager Reviewed by: Chad Mosley, Public Works Director
Floy Andrews, Interim City Attorney
Michael Woo, Senior Assistant City Attorney
Approved for Submission by: Tina Kapoor, Acting City Manager Attachments:

A – Zanker Agreement for C&D
B – IDC Agreement for Newby Landfill
C – SMaRT Station Partner Agreement
D – SMaRT Station Merchant Agreement
E – Resolution 25-XXX for Approval of Agreements
F – Resolution 25-XXX for Budget Modification
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AGREEMENT
between the

CITY OF CUPERTINO
and

ZANKER ROAD RESOURCE MANAGEMENT, LLC
for

SOLID WASTE CONSTRUCTION AND DEMOLITION MATERIAL

PROCESSING SERVICES
June 2025
Attachment A
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DRAFT July 2024 i City of Cupertino/ _____________ Agreement

TABLE OF CONTENTS
RECITALS, DETERMINATIONS, AND FINDINGS......................................................... 1 ARTICLE 1. DEFINITIONS .......................................................................................... 2 ARTICLE 2. TERMS OF AGREEMENT .......................................................................... 2

2.01 Effective Date ....................................................................................................... 2

2.02 Term And Extensions ............................................................................................. 2

2.03 Survival of Certain Provisions.................................................................................. 2 ARTICLE 3. OBLIGATIONS OF CITY........................................................................... 3

3.01 Facility Designation................................................................................................ 3

3.02 City Direction of Material........................................................................................ 3

3.03 No Tonnage Obligation or Limit on Waste Prevention................................................ 3 ARTICLE 4. OBLIGATIONS OF CONTRACTOR ............................................................ 4

4.01 Acceptance of Delivered Materials; Limitations and Exclusions; Subcontractors............ 4

4.02 Facility Service Specifications.................................................................................. 6

4.03 Permits................................................................................................................. 8

4.04 Ownership of Delivered Materials ............................................................................ 9

4.05 Rejection of Unpermitted and excluded Waste.......................................................... 9

4.06 Days and Hours of Operation................................................................................ 10

4.07 Equipment and Supplies....................................................................................... 10

4.08 Traffic Control and Direction................................................................................. 10

4.09 Scale Operation................................................................................................... 11

4.10 Personnel ........................................................................................................... 12

4.11 Safety ................................................................................................................ 12

4.12 Alternative Facility(ies)......................................................................................... 13

4.13 Invoicing and Monthly Report............................................................................... 13

4.14 Reporting ........................................................................................................... 14

4.15 Due Diligence...................................................................................................... 15

4.16 Closure and Post-Closure of Facility....................................................................... 16

4.17 Right to Enter Facility and Observe Operations....................................................... 16

4.18 Reserved ............................................................................................................ 16

4.19 Service Standards................................................................................................ 16

4.20 Climate and Disaster Resiliency............................................................................. 16

4.21 Generation, Characterization, and Pilot Studies....................................................... 17

4.22 Extended Producer Responsibility Programs ........................................................... 17

4.23 Modifications to Scope of Service .......................................................................... 19 ARTICLE 5. CONTRACTOR COMPENSATION............................................................. 20

5.01 General .............................................................................................................. 20

5.02 Per-Ton Rate ...................................................................................................... 21

5.03 Per-Ton Rate Adjustments.................................................................................... 21

5.04 Extraordinary Rate Adjustments............................................................................ 24

5.05 Payment of Government Fees............................................................................... 25

5.06 Payment of Taxes................................................................................................ 25 ARTICLE 6. INDEMNITY AND INSURANCE .............................................................. 25

6.01 Indemnification ................................................................................................... 25

6.02 Insurance ........................................................................................................... 28 242
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DRAFT July 2024 ii City of Cupertino/ _____________ Agreement ARTICLE 7. DEFAULT BY CONTRACTOR AND TERMINATION .................................. 29

7.01 Events of Default................................................................................................. 29

7.02 Right to Terminate Upon Event of Default.............................................................. 31

7.03 City’s Remedies In the Event of Default................................................................. 31

7.04 Possession of Records Upon Termination ............................................................... 32

7.05 City's Remedies Cumulative; Specific Performance.................................................. 32

7.06 Performance Standards and Liquidated Damages ................................................... 32

7.07 Excuse from Performance..................................................................................... 33

7.08 Right to Demand Assurances of Performance ......................................................... 34

7.09 Cooperation and Disputes Between Contractors ...................................................... 35

7.10 Acts Necessary to Perform Service ........................................................................ 35 ARTICLE 8. OTHER AGREEMENTS OF THE PARTIES ................................................ 36

8.01 Relationship of Parties ......................................................................................... 36

8.02 Compliance With Law........................................................................................... 36

8.03 Governing Law and VENUE................................................................................... 37

8.04 Further Assurances.............................................................................................. 37

8.05 Assignment......................................................................................................... 37

8.06 Binding On Successors......................................................................................... 38

8.07 Parties In Interest ............................................................................................... 38

8.08 Services Performed at Contractor’s Sole Expense.................................................... 38

8.09 Notices and Communication ................................................................................. 39

8.10 Representatives of The Parties.............................................................................. 39

8.11 Duty of Contractor Not to Discriminate .................................................................. 40

8.12 Force Majeure..................................................................................................... 40

8.13 Maintenance of Records ....................................................................................... 41

8.14 Right to Inspect Records ...................................................................................... 42

8.15 Compilation of Information For State Law Purposes ................................................ 42

8.16 Right to Demand Assurances of Performance ......................................................... 43

8.17 Dispute Resolution............................................................................................... 43

8.18 Criminal Activity of Contractor............................................................................... 44

8.19 Cooperation and Disputes Between Contractor and Collection Contractor.................. 45

8.20 Guaranty of Contractor’s Performance ....................... Error! Bookmark not defined.

ARTICLE 9. REPRESENTATIONS AND WARRANTIES .............................................. 45

9.01 Made By Contractor............................................................................................. 45 ARTICLE 10. MISCELLANEOUS PROVISIONS........................................................... 47

10.01 Exhibits .............................................................................................................. 47

10.02 Integration ......................................................................................................... 47

10.03 Section Headings................................................................................................. 47

10.04 Interpretation and Construction ............................................................................ 47

10.05 Amendment........................................................................................................ 48

10.06 Severability......................................................................................................... 48

10.07 Costs of Enforcing Agreement............................................................................... 48

10.08 Authority ............................................................................................................ 49

10.09 Counterparts....................................................................................................... 49 B-1 Operations Plan.......................................................................................................... i B-2 Disaster Plan.............................................................................................................. i B-3 Rate Period One Per-Ton Rates.................................................................................... i 243
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TABLE OF EXHIBITS
EXHIBIT A: DEFINITIONS
EXHIBIT B: CONTRACTOR’S PLANS AND RATE PERIOD ONE RATES EXHIBIT C: INSURANCE
EXHIBIT D: GUARANTY AGREEMENT
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DRAFT July 2024 1 City of Cupertino/ _____________ Agreement 1 AGREEMENT
2 BETWEEN THE
3 CITY OF CUPERTINO
4 AND
5 ZANKER ROAD RESOURCE MANAGEMENT, LLC
6 FOR
7 SOLID WASTE CONSTRUCTION AND DEMOLITION MATERIAL
8 PROCESSING SERVICES
9 This Agreement is entered into by and between City of Cupertino (“City”) and Zanker Road Resource 10 Management, LLC (“Contractor”) (together, the “Parties”) on the Effective Date. 11 RECITALS, DETERMINATIONS, AND FINDINGS
12 This Agreement is entered into with reference to the following facts, circumstances, determinations, and 13 findings made by the Cupertino City Council:
14 Whereas, the City is responsible for protection of the public health, safety and the environment. City is 15 authorized and required to provide Solid Waste handling services to their citizens under the provisions of 16 the California Integrated Waste Management Act of 1989 ("Act"), which is set forth in the California Public 17 Resources Code at Section 40000, et seq., including source reduction, Recycling, Composting, and 18 Recovery activities, and the collection, Transport, and Disposal of Solid Waste within City’s boundaries 19 subject to Solid Waste handling jurisdiction, as provided in Section 40057 of the Act. 20 Whereas, the City adopted the CALGreen Building Codes through adoption of City Municipal Code Section 21 16.72, which establishes requirements for Diversion of C&D Materials from construction and demolition 22 projects within the City, including mandatory recordkeeping and enforcement provisions. 23 Whereas, through enactment of the Act, the State of California also recognizes the important health and 24 safety consideration to long-term planning for adequate Disposal needs. 25 Whereas, this Agreement also advances the objectives of the federal government to encourage 26 environmentally sound Solid Waste management pursuant to the Resource Conservation and Recovery 27 Act of 1976 (“RCRA”), 42, U.S.C. Section 6941 et. seq. 28 Whereas, the GreenWaste Zanker Resource Recovery Facility is intended to be the designated 29 Construction and Demolition Debris Processing Facility for Delivered Materials generated in the City. 30 Whereas, this Agreement helps the City achieve the following goals:
31 • Ensuring high quality and cost-effective Construction and Demolition Processing Services that support 32 achieving the City’s environmental and regulatory compliance goals while helping to maintain 33 competitive customer rates.
34 • Establishing Service and performance standards to help assure that the City meets its obligations 35 under law and protects and preserves the health, safety, and financial assets of its citizens; and, 246
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DRAFT July 2024 2 City of Cupertino/ _____________ Agreement 36 • Giving the City tools to monitor Contractor’s compliance with Service terms, administer Solid Waste 37 management programs, and enforce City rights.
38 NOW, THEREFORE, in consideration of the mutual promises, covenants, guaranties, and conditions 39 contained in this Agreement and for other good and valuable consideration, the Parties agree as follows. 40 ARTICLE 1.
41 DEFINITIONS
42 Except as otherwise specified in this Agreement, capitalized terms have the meanings defined in Exhibit 43 A, Definitions, which is attached and incorporated by reference herein. 44 ARTICLE 2.
45 TERMS OF AGREEMENT
46 2.01 EFFECTIVE DATE
47 This Agreement becomes effective on the Effective Date. Between the Effective Date and Commencement 48 Date, Contractor shall perform all activities necessary to prepare itself to start providing Services required 49 by this Agreement on the Commencement Date.
50 2.02 TERM AND EXTENSIONS
51 The Term of this Agreement commences on ________ (“Commencement Date”) and expires ten (10) years 52 after the Effective Date, unless the Agreement is extended in accordance with this Section or terminated 53 pursuant to Article 7.
54 At City’s sole discretion, the Term of this Agreement may be extended for up to a total of five (5) years 55 following the expiration date shown above in this Section 2.02. Such extension may be granted in one (1) 56 or more periods specified by City of no less than twelve (12) months in length. If City desires to exercise 57 this option to extend the Term, City shall give Notice to the Contractor eighteen (18) months prior to the 58 expiration date of the current Term, and such Notice shall specify the duration of the desired extension. 59 If the Term of the Agreement is extended, Contractor may request a Rate review as provided under 60 Section 5.04 and City and Contractor shall mutually agree on adjusted Per-Ton Rates. 61 2.03 SURVIVAL OF CERTAIN PROVISIONS
62 A. The following five provisions will survive the expiration or termination of this Agreement:
63 1. All representations and warranties;
64 2. All Indemnities;
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DRAFT July 2024 3 City of Cupertino/ _____________ Agreement 65 3. Obligations to pay any due and payable monetary amounts, or claims for those amounts, 66 including Liquidated Damages, any Per-Ton Rates, and payment of any amounts accrued and 67 payable upon termination of the Agreement in accordance with Section 7.02; 68 4. Obligations to submit Records and any reports for periods (or portions thereof) concluded 69 prior to the expiration or termination of this Agreement; and 70 5. Any other rights and obligations of the Parties stated to survive the expiration or termination 71 of this Agreement.
72 ARTICLE 3.
73 OBLIGATIONS OF CITY
74 3.01 FACILITY DESIGNATION
75 The GreenWaste Zanker Resource Recovery Facility is the designated facility for management of 76 Delivered Materials.
77 3.02 CITY DIRECTION OF MATERIAL
78 The City will, at all times, direct the Collection Contractor to deliver the applicable Delivered Material(s) it 79 collects to the Contractor’s Facility(ies) specified in this Agreement. The City is not obligated to physically 80 deliver any Delivered Material to the Facility(ies) or pay Contractor any Per-Ton Rates, except as provided 81 for herein.
82 3.03 NO TONNAGE OBLIGATION OR LIMIT ON WASTE PREVENTION 83 Neither City nor the Collection Contractor is obligated to deliver any specified quantity or composition of 84 Delivered Materials to the Facility. However, for clarity, all Construction and Demolition Materials 85 collected by Collection Contractor shall be exclusively delivered to Facility as directed under Section 3.02. 86 The City maintains programs to reduce the amount of waste intended for Disposal. It is the City’s intent 87 to continue to improve, develop, and enhance existing programs as well as to implement new programs 88 and Services throughout the Term as it deems necessary to meet or exceed mandated Diversion program 89 requirements and goals established by AB 939 and subsequent federal, State, County or local legislation 90 including, but not limited to, the State’s seventy-five percent (75%) Recycling goal established in AB 341, 91 the programmatic requirements of AB 1826, the requirements of SB 1383, and the Diversion requirements 92 under CALGreen. In addition, Delivered Material tonnages or composition may be affected by Extended 93 Producer Responsibility Programs established by the City, the County, the State, or other applicable 94 regulatory bodies. Contractor acknowledges that the characterization and quantity of Delivered Materials 95 that are delivered to the Facility will change over the Term and may, over time, be significantly different 96 than that as of the Commencement Date of the Agreement, but the obligation of Contractor to Accept 97 the Delivered Material will continue for the Term of the Agreement so long as it conforms to the 98 definitions and requirements of this Agreement.
99 Nothing in this Agreement shall, in any manner, prevent, penalize, or impede the City from continuing 100 programs, altering programs, or developing new programs that have the effect of reducing or increasing 248
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DRAFT July 2024 4 City of Cupertino/ _____________ Agreement 101 the amount of Solid Waste or Delivered Materials collected and delivered to the Facility by the Collection 102 Contractor.
103 ARTICLE 4.
104 OBLIGATIONS OF CONTRACTOR
105 4.01 ACCEPTANCE OF DELIVERED MATERIALS; LIMITATIONS AND EXCLUSIONS; 106 SUBCONTRACTORS
107 A. Acceptance of Delivered Materials. Contractor shall receive, Accept, and safely and lawfully Process 108 City’s Delivered Materials at the Facility in accordance with this Article 4 Obligations of Contractor 109 and Exhibit B-1, Operations Plan, attached hereto and incorporated herein; and Applicable Law. 110 Contractor’s failure to take all actions it deems necessary to perform the Services does not relieve 111 Contractor of its obligations to perform such act or the Services. 112 B. Scope Limitations and Exclusions. The award of this Agreement shall not preclude the categories 113 of Recyclable Materials, Organic Materials, C&D Materials, and Solid Waste listed below from being 114 Collected by Persons other than the Collection Contractor and Transferred, Transported, Processed, 115 or Disposed by Persons other than the Contractor, provided that nothing in this Agreement is 116 intended to or shall be construed to excuse any Person from obtaining any authorization from the 117 City, which is otherwise required by law:
118 1. Self-Hauled Materials. A commercial business Owner or Resident may Dispose of Recyclable 119 Materials, Organic Materials, Solid Waste, and C&D Materials generated in or on their own 120 Premises with their own vehicle so long as they are in compliance with the City’s Municipal 121 Code.
122 2. Donated or Sold Materials. Any items which are Source Separated at any Premises by the 123 Generator and sold or donated to other Persons, including youth, civic, or charitable 124 organizations.
125 3. Edible Food Recovery. Edible Food which is Collected from a Generator by other Person(s) for 126 the purposes of food recovery; or which is Self-Hauled by the Generator to another Person(s) 127 for the purposes of food recovery, regardless of whether the Generator donates, sells, or pays 128 a fee to the other Person(s) to Collect or receive the Edible Food. Contractor shall cooperate 129 with and shall not impede, interfere, or attempt to impede or interfere with the 130 implementation, expansion, or operation of food recovery program efforts in the City. 131 4. Food Scraps for Animal Feed. Food Scraps that are separated by the Generator and used by 132 the Generator or distributed to other Person(s) for lawful use as animal feed, in accordance 133 with 14 CCR Section 18983.1(b)(7). Food Scraps intended for animal feed may be Self-Hauled 134 by Generator or hauled by another party.
135 5. Reserved.
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DRAFT July 2024 5 City of Cupertino/ _____________ Agreement 136 6. Beverage Containers. Containers delivered for redemption value Recycling under the 137 California Beverage Container Recycling and Litter Reduction Act, Section 14500, et seq. 138 California Public Resources Code.
139 7. Materials Removed as Incidental Part of Services. Recyclable Materials, Organic Materials, 140 Solid Waste, C&D Materials, or other materials removed from a Premises by a contractor (e.g., 141 gardener, landscaper, tree-trimming service, construction contractor, Residential clean-out 142 service) as an incidental part of the service being performed. 143 8. On-Site and Community Composting. Organic Materials Composted or otherwise legally 144 managed at the site where it is generated (e.g., backyard Composting, on-site anaerobic 145 digestion).
146 9. Used Cooking Oil, Manure, Animal Waste, and Grease. Used cooking oil; manure, animal 147 waste, remains from slaughterhouse or butcher shops, animal grease. 148 10. Sewage Treatment By-Product. By-products of sewage treatment, including sludge, sludge 149 ash, grit, and screenings.
150 11. Unpermitted Waste. Unpermitted Waste regardless of its source. 151 12. Excluded Waste. Excluded Waste regardless of its source. 152 13. Materials Generated by State and County Facilities. Materials generated by State and County 153 facilities located in the City provided that the Generator self-hauls, has arranged services with 154 other Persons, or has arranged services with the Contractor through a separate agreement. 155 14. Dirt. Loose soil or earth from the ground may be collected and otherwise legally handled, 156 managed, diverted, and/or disposed by other Persons. 157 15. Extended Producer Responsibility Programs. Materials covered by Extended Producer 158 Responsibility Programs, including but not limited to those implemented pursuant to SB54 159 may be collected and otherwise legally handled, managed, diverted, and/or disposed of by 160 other Persons.
161 16. Climate and Disaster Resiliency Debris. Debris generated as result of a wartime, natural, 162 physical, or other disaster that the Collection Contractor is unable to Collect and or Contractor 163 is unable to Process or Dispose within a reasonable timeframe as determined by the City or 164 that the City directs the Collection Contractor or Contractor to not Collect, Process, or Dispose 165 in accordance with Section 4.20 of this Agreement and in accordance with the Collection 166 Agreement. City reserves the right to enter into a third-party agreement to provide disaster 167 debris Collection, Processing, or Disposal services that augment those provided by the 168 Contractor or Collection Contractor.
169 C. Subcontracting. Contractor is solely responsible for management and oversight of the activities of 170 all Subcontractor(s). Contractor shall be considered to be in breach or default should the activities 171 of any Subcontractor(s) constitute a breach or Event of Default under this Agreement. 250
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DRAFT July 2024 6 City of Cupertino/ _____________ Agreement 172 Contractor shall not engage a Subcontractor(s) for Processing Services without the prior written 173 consent of City Representative, which may be granted in their sole discretion. As of the Effective 174 Date of this Agreement, City has approved Contractor’s use of Subcontractor(s) as proposed by 175 Contractor and approved by City for inclusion in Exhibit B-1 Operations Plan. Following the Effective 176 Date, if the Contractor plans to engage any Affiliate as a Subcontractor in the provision of services, 177 Contractor shall provide City Representative with thirty (30) calendar days written notification of its 178 plans and provide an explanation of any potential impacts related to the quality, timeliness, or cost 179 of providing services under this Agreement. Contractor shall require that all Subcontractors file an 180 insurance certificate with the City describing such Subcontractor’s insurance coverage, and name 181 City as an additional insured. The City Representative may waive or excuse these insurance 182 requirements in its sole discretion. Contractor shall require that all Subcontractors comply with all 183 material terms of this Agreement.
184 4.02 FACILITY SERVICE SPECIFICATIONS
185 A. Reserved.
186 B. C&D Materials Processing Specifications.
187 Contractor shall provide C&D Materials Processing Services at the Facility in accordance with the 188 Service standards described in Section 4.19 and the following Service specifications:
189 1. Operating, managing, and maintaining all Facility areas in accordance with Contractor’s 190 Operations Plan contained in Exhibit B-1.
191 2. Providing, operating, and maintaining all equipment, rolling stock, and supplies necessary for 192 Facility operations and environmental monitoring.
193 3. Operating, maintaining, and managing storm water drainage and control systems, treatment 194 facilities, buildings, on-site roadways, utilities, and any other required Facility elements. 195 4. Accepting delivery of City’s C&D Materials, subject to the limitations of Section 4.05. 196 5. Operating and maintaining the scale house and scale system and weighing City’s C&D 197 Materials in accordance with Section 4.09.
198 6. Directing on-site traffic to appropriate unloading areas in accordance with Section 4.08 and 199 providing a safe working environment for Facility users, visitors and employees, including in 200 accordance with Sections 4.10 and 4.11.
201 7. Safely managing the C&D Materials Accepted at the Facility, including in accordance with 202 Section 4.11.
203 8. Processing C&D Materials in a manner that maximizes reuse, Recycling, Composting, and 204 Diversion, and is deemed not to constitute landfill Disposal pursuant to 14 CCR Section 205 18983.1(a), which states that landfill Disposal includes final deposition of Organic Waste at a 206 landfill or use of Organic Waste as Alternative Daily Cover (ADC) or Alternative Intermediate 207 Cover (AIC).
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DRAFT July 2024 7 City of Cupertino/ _____________ Agreement 208 9. Arranging for post-Processing of Recovered Materials and Transporting Recovered Materials 209 to the Secondary Processing facility(ies), as detailed in the Contractor’s Operations Plan 210 contained in Exhibit B-1.
211 10. Marketing Recovered Materials in accordance with Section 4.02D, and maintaining complete 212 and accurate marketing Records, including Tonnage of material marketed, price, revenue 213 received, purchaser, and specified end-use if known. 214 11. Achieving a Residue level of less than or equal to twenty-five percent (25%) of the commingled 215 C&D Materials and ten percent (10%) of Source Separated C&D Materials delivered by the 216 Collection Contractor and Processed by the Contractor. 217 12. Maintaining a Diversion percentage of at least seventy-five percent (75%) for Mixed C&D 218 Materials and ninety percent (90%) for Source Separated C&D Materials. Contractor shall at 219 all times maintain an overall Diversion level of at least sixty five percent (65%), or other 220 percentage required under CALGreen or City’s Municipal Code Chapter 16.58 and 16.72, as 221 amended, whichever is more restrictive. In the event CALGreen or other Applicable Law 222 requires a Diversion level greater than that specified in this subsection, Contractor shall 223 comply with the more restrictive Diversion target, which shall not be considered a Change in 224 Law under this Agreement. Contractor shall obtain City-approved C&D Materials diversion 225 processing certification from Third-Party C&D Materials Processing Accreditors to ensure 226 compliance with such Diversion requirements, Applicable Law, and generally accepted 227 Processing and Diversion standards. Contractor shall maintain a Third-Party C&D Materials 228 Processing Accreditor’s certification for the Term of the Agreement. Contractor shall maintain 229 Records of any information or documentation required to demonstrate compliance with the 230 California Green Building Standards Code (“CALGreen Code”) and with the City-approved 231 Third-Party C&D Materials Processing Accreditor requirements, and shall immediately notify 232 the City of changes to the Contractor’s certification status. City may request that 233 documentation related to Contractor’s certification by a Third-Party C&D Materials 234 Processing Accreditor be included in the monthly or Annual Report(s), as it pertains to the 235 Services provided under this Agreement. City shall Notify the Contractor of this request within 236 ten (10) Working Days prior to the submittal deadline of the monthly and/or Annual Report 237 where the information is to be included.
238 13. Transporting, Disposing of, and tracking Residue in accordance with Section 4.02.E. 239 14. Allocating Recovered Materials and Residue Tonnages to City versus to other Facility users, in 240 accordance with Section 4.02.E.
241 15. Consistently maintaining staffing levels as provided in Exhibit B. 242 16. Complying with Applicable Law related to the management of C&D, including, but not limited 243 to, Diversion of Organic Waste in C&D from Disposal. 244 C. Reserved
245 D. Recovered Material Marketing.
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DRAFT July 2024 8 City of Cupertino/ _____________ Agreement 246 1. Market Arrangements. Contractor shall maintain relationships with vendors, shall monitor 247 market conditions, and shall have the ability to anticipate and react to severe market demand 248 and fluctuations in quantity, composition, and pricing. Contractor shall use both domestic and 249 foreign markets to maintain continued material movement and to obtain the highest market 250 value.
251 2. Products Marketed. As of the Effective Date, Contractor shall market C&D Materials 252 recovered in the following manner and commodity categories or grades: ADC, Aluminum, 253 Asphalt, Asphalt Roofing (Recycled Asphalt Shingles), Brass, Carpet Padding, Concrete (Class 254 II Baserock, Baserock Plus, Drain Rock, Pea Gravel), Copper, Dirt, Drywall, Ferrous Metals, 255 Pallets, Porcelain, Process Fines, Scrap Metals, Stones and Bricks, Yard Trimmings, and Wood 256 (Cogeneration Fuel, Mulch, Soil Amendment).
257 3. Highest and Best Use. Contractor’s marketing strategy shall promote the highest and best use 258 of materials providing for waste reduction, prevention, reuse, refill, repair, Recovery, and 259 Recycling, as established by Applicable Law, and as provided in the waste management 260 hierarchy established by AB 939 and through Extended Producer Responsibility Programs. 261 Where practical, the marketing strategy should include, in order, preferential use of local, 262 regional, and domestic markets for Recovered Materials. 263 E. Residue Tracking and Disposal.
264 1. Residue Tracking and Reporting. Contractor shall develop and use a method of tracking and 265 allocating Residue in such a manner that Contractor can demonstrate its achievement of 266 standards for Residue levels and Diversion levels specified in Section 4.02.B. The Residue level 267 calculation method shall be reviewed and approved by City. At a minimum, Contractor shall 268 separately track and report the following: tons diverted by product type and tons of Residue 269 Disposed. Contractor shall report Residue levels and Diversion levels pursuant to Section 4.14. 270 2. Residue Disposal. Residue from the Contractor’s Processing of Delivered Materials shall be 271 Transported and Disposed of by Contractor at Disposal Facility(ies) selected by Contractor. 272 Residue delivered for Disposal shall not include any Excluded Waste. Contractor shall pay for 273 the Transportation and Disposal costs of all Residue. 274 4.03 PERMITS
275 A. Securing Permits. Contractor will obtain and maintain at Contractor’s sole cost all Permits required 276 under Applicable Law to perform Services. Contractor will provide City proof of Permits and will 277 demonstrate compliance with the terms and conditions of Permits promptly upon request of City. 278 In its Annual Report or more frequently, as necessary, Contractor will inform City of any Permit279 related or regulatory concerns and Contractor’s plans to, and status of, securing the issuance, 280 revision, modification, extension, or renewal of Permits. Promptly upon City direction, Contractor 281 will provide City with copies of Permits and any applications or other correspondence that the 282 Contractor submits in connection with securing Permits. 283 B. Complying with Permits. Contractor will at all times provide Services in compliance with all Permits, 284 including any mitigation measures related to the operation and maintenance of the Facility. 253
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DRAFT July 2024 9 City of Cupertino/ _____________ Agreement 285 Contractor is solely responsible for paying any fines or penalties imposed for noncompliance with 286 or Violation of Permits or failure to obtain Permits. 287 4.04 OWNERSHIP OF DELIVERED MATERIALS
288 Once City’s Delivered Materials are delivered to the Facility and received and Accepted by Contractor, 289 ownership and the right to possession of City’s Delivered Materials will transfer directly from the 290 Collection Contractor or other Person designated to deliver City’s Delivered Materials to Contractor. For 291 Solid Waste received at the Facility, Contractor may retain, Recycle, Process, Dispose of, and otherwise 292 use City’s Solid Waste in any lawful fashion or for any lawful purpose. Both benefits and Liabilities resulting 293 from ownership and possession will accrue to Contractor. 294 4.05 REJECTION OF UNPERMITTED AND EXCLUDED WASTE
295 A. Inspection. Contractor shall use Standard Industry Practices to detect and reject Unpermitted 296 Waste and Excluded Waste in a uniform and non-discriminatory manner and will not knowingly 297 Accept Unpermitted Waste or Excluded Waste at the Facility. Contractor will comply with the 298 inspection procedure contained in its Permit requirements and in accordance with its Operations 299 Plan contained on Exhibit B-1. Contractor will promptly modify that procedure to reflect any 300 changes in Permits or Applicable Law.
301 B. Unpermitted Wastes and Excluded Wastes Handling and Costs. Contractor will arrange for or 302 provide handling, Transportation, and delivery to a Recycling, Processing, or Disposal Facility 303 permitted in accordance with Applicable Law of all Unpermitted Wastes or Excluded Wastes 304 detected at the Facility that are not delivered by the Collection Contractor. As between Contractor 305 and City, Contractor is solely responsible for making those arrangements or provisions and all costs 306 thereof.
307 C. Remedies for Rejected Materials. If Unpermitted Waste or Excluded Wastes are delivered to the 308 Facility, Contractor may reject the Unpermitted Waste or Excluded Wastes and require the 309 Person(s) bringing such Unpermitted Waste or Excluded Wastes to the Facility to remove it. 310 Contractor shall also be entitled to pursue whatever remedies, if any, it may have against Person(s) 311 bringing that Unpermitted Waste to the Facility. If Contractor identifies Unpermitted Waste or 312 Excluded Wastes delivered by Collection Contractor, the Contractor may reject it and require 313 Collection Contractor remove it. Further, City’s agreement with the Collection Contractor will 314 require the Collection Contractor to collect, transport, and dispose of that Unpermitted Waste or 315 Excluded Wastes and/or to remediate any contamination resulting there from at Collection 316 Contractor’s expense, but Contractor may not require City to take those actions or pay those costs. 317 Nothing in this Agreement will excuse the Contractor from the responsibility of handling 318 Unpermitted Waste or Excluded Wastes that Contractor inadvertently accepts in a lawful manner 319 and of arranging for the disposition of that Unpermitted Waste or Excluded Wastes in accordance 320 with Applicable Law and charge Collection Contractor accordingly. 321 D. Notification. If the Contractor rejects Unpermitted Waste or Excluded Wastes delivered by the 322 Collection Contractor, Contractor will immediately Notify the City verbally and then follow verbal 323 notifications with Notice identifying the date and time of occurrence; material type; material weight 324 or volume; characterization of material; the Contractor’s reason for rejection of the delivered 325 material; and, the vehicle that delivered the material. 254
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DRAFT July 2024 10 City of Cupertino/ _____________ Agreement 326 E. C&D Contamination Monitoring. Contractor shall Notify City and the Collection Contractor when 327 there is a consistent pattern of delivered C&D Materials with a non-C&D Materials contamination 328 level of fifteen percent (15%) or more. The data shall include the date and time the loads were 329 delivered, the vehicle identification numbers, photos of the contamination in the loads, and any 330 other related information that may be useful for the Collection Contractor in identifying the types 331 of contaminants and developing strategies to reduce contamination and to target information in 332 the Collection Contractor’s education and outreach efforts to City. 333 4.06 DAYS AND HOURS OF OPERATION
334 A. General. Contractor will operate the Facility for the receipt of City’s Delivered Materials in 335 accordance with the Days and hours of operation set forth in its Permits and as specified below. 336 1. Reserved.
337 2. At a minimum, Contractor shall receive and Accept C&D Materials at the C&D Materials 338 Processing Facility from Monday through Friday from 6:00 am to 4:45 pm and Saturday 8:00 339 am to 3:45 pm, except for Holidays.
340 While Contractor may increase these hours, Contractor may not reduce the hours or total number 341 of hours for acceptance of City’s Delivered Materials without the concurrence of City and Collection 342 Contractor, unless reductions are required by a change in a Permit subsequent to the Effective Date. 343 4.07 EQUIPMENT AND SUPPLIES
344 Contractor will provide equipment, which may include: scales, truck rubble plates, excavators, front-end 345 loaders, water trucks, Recycling plants with shredders, crushers, magnets, conveyors and sort lines, 346 various screen types (scalping, disc, and/or trommel screens), dust control systems, and safety equipment 347 (PPE), to operate the Facility and provide Services. Contractor will properly protect the equipment and 348 place it in the charge of competent operators. Contractor will repair and maintain all equipment at its own 349 cost and expense.
350 4.08 TRAFFIC CONTROL AND DIRECTION
351 A. General. Contractor shall construct and maintain all roads required to Transport City’s Delivered 352 Materials from the Facility site entrance to scale house and to the actual point of unloading at the 353 Processing area of the Facility. Contractor will direct on-site traffic to appropriate unloading areas 354 and provide a safe working environment for Facility users, visitors, and employees. Contractor will 355 provide necessary roadways, signs, and personnel to assist drivers to proper unloading areas. 356 Contractor will maintain all roadways and signs at the Facility in a clean and usable condition. The 357 Contractor will provide and maintain roadways and signs for the convenience of vehicles using the 358 Facility and to facilitate safe and efficient traffic flow at the Facility. 359 B. Vehicle Turnaround Times. Contractor shall use best industry practices to maintain a Maximum 360 Vehicle Turnaround Time (MVTT) of thirty (30) minutes for Collection Contractor delivery of 361 Delivered Materials to the Facility. Impacts to MVTT which are outside of Contractor’s control, such 362 as untarping and unloading time, shall not count towards the thirty (30) minutes. Contractor shall 255
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DRAFT July 2024 11 City of Cupertino/ _____________ Agreement 363 have a twenty-four (24) hour period to cure this breach before Liquidated Damages will be assessed 364 in accordance with this Section and Section 7.06.
365 C. Failure to Meet Maximum Vehicle Turnaround Time. If Contractor fails to meet after the cure 366 period the Maximum Vehicle Turnaround Time more than five (5) times in one month, it shall pay 367 Liquidated Damages as provided in Section 7.06 and Exhibit E. 368 D. Assessment of Liquidated Damages. The City shall provide Notice of its intent to assess liquidated 369 damages to the Contractor within sixty (60) Days of City becoming aware of the Contractor’s failure 370 to meet the Maximum Vehicle Turnaround Time, but in no case greater than one year from the date 371 of Contractor's failure to meet MVTT. The assessment of Liquidated Damages shall be made in 372 accordance with Section 7.06.
373 E. Turnaround Time Documentation Requirements. On or before the Service Commencement Date, 374 Contractor shall, at its own cost, implement and maintain a technology-based vehicle tracking 375 system of recording inbound and outbound vehicle times. Contractor shall, at its discretion and 376 upon City request, provide City with the opportunity to review a reasonable number of scalehouse 377 video recordings of the inbound and outbound vehicles solely for the purpose to calculate average 378 Maximum Vehicle Turnaround Time, if in dispute. Contractor shall make every reasonable effort to 379 resolve disputed turnaround time issues.
380 4.09 SCALE OPERATION
381 A. Maintenance and Operation. Contractor will maintain at least two (2) State-certified motor vehicle 382 scales at the Facility in accordance with Applicable Law. Contractor will link all scales to a centralized 383 computer recording and billing system that will be compatible with Contractor’s systems and 384 account for tracking all incoming and outgoing materials. Contractor will operate those scales during 385 Facility receiving hours established in Section 4.06. If City does not receive such from Collection 386 Contractor or questions the authenticity, Contractor will provide City with copies of its weigh tickets 387 within five (5) Working Days following City’s reasonable request therefore. 388 B. Vehicle Tare Weights. When Collection Contractor places new vehicles into Service, Contractor will 389 promptly weigh the new vehicle and determine its unloaded (tare) weight(s). Contractor will record 390 tare weight, hauler name, and vehicle identification number. Within ten (10) Working Days of 391 weighing, Contractor will provide City and Collection Contractor with a report listing vehicle tare 392 weight information. Contractor will have the right to request re-determination of tare weights of 393 vehicles twice each Calendar Year. If there is reasonable suspicion or evidence that tare weights are 394 not accurate, Collection Contractor may request re-determination of tare weights, in which case 395 Contractor will promptly re-determine tare weights for requested vehicles up to four (4) times per 396 Calendar Year. Contractor may update tare weights (at its own initiative) more frequently. 397 C. Substitute Scales. If any scales are inoperable, being tested, or otherwise unavailable, Contractor 398 will use Reasonable Business Efforts to weigh vehicles on the remaining operating scales. To the 399 extent that all the scales are inoperable, being tested, or otherwise unavailable, Contractor will 400 substitute portable scales until the permanent scales are replaced or repaired. Contractor will 401 arrange for any inoperable scale to be repaired as soon as possible and, in any event, within seventy402 two (72) hours (excluding Holidays) of the failure of the permanent scale. If repairs to the 256
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DRAFT July 2024 12 City of Cupertino/ _____________ Agreement 403 permanent scale are projected to take more than twelve (12) hours, Contractor will immediately 404 obtain a temporary substitute scale(s).
405 D. Estimates. Pending substitution of portable scales or during power outages, Contractor will 406 estimate the Tonnage of City’s Delivered Materials delivered to the Facility by utilizing the 407 arithmetic average of each vehicle's recorded Tons of the Delivered Materials delivered on its 408 preceding three (3) deliveries, on the same Day of the week, to the Facility. 409 All information required by Section 4.09.G will continue to be recorded for each delivery of 410 Delivered Materials to the Facility and each Transported load of Delivered Materials during any 411 period the scales are out of Service.
412 E. Testing. Contractor will test and calibrate all scales in accordance with Applicable Law, but at least 413 every twelve (12) months. Upon City reasonable request, Contractor will promptly provide City with 414 copies of test results. Contractor will further test and calibrate any or all scales within three (3) 415 Working Days of City direction. If test results indicate that the scale or scales complied with 416 Applicable Law, City will reimburse Contractor the Direct Costs of the tests. If the test results 417 indicate that the scale or scales did not comply with Applicable Law, Contractor will bear the costs 418 thereof and Contractor will at its own cost adjust and correct, consistent with the results of that 419 test, all weight measurements recorded and Per-Ton Rates calculated, charged, and paid, as the 420 case may be, from the date of the test.
421 F. Weighing Standards and Procedures. Contractor will use the Facility’s entry scale(s) located at the 422 scale house to weigh vehicles and charge Per-Ton Rates. Contractor scale house personnel will be 423 responsible for inspecting the Solid Waste delivered to the Facility. Contractor will charge the Per424 Ton Rates based on the Tonnage of City’s Delivered Materials delivered by the Collection Contractor 425 to the Facility. Contractor will weigh and record inbound weights of all Collection Contractor’s 426 vehicles when the vehicles arrive at the Facility and weigh and record outbound weights of vehicles 427 for which Contractor does not maintain tare weight information. Contractor will provide each driver 428 a receipt showing the date, time, and quantity of City’s Delivered Materials that the vehicle 429 delivered to the Facility and the Per-Ton Rate charged therefore. 430 G. Records. Contractor will maintain scale Records and reports that provide information including date 431 of receipt, inbound time, inbound and outbound weights of vehicles, vehicle identification number, 432 jurisdiction of origin of materials received, type of material, hauler identification and/or 433 classification, type, weight, and destination of outbound materials. 434 4.10 PERSONNEL
435 Contractor will engage, train, and maintain qualified and competent employees, including managerial, 436 supervisory, clerical, maintenance, and operating personnel, in numbers necessary and sufficient for 437 operation of the Facility and to perform Services.
438 4.11 SAFETY
439 The Contractor will perform all Services in a safe manner, in accordance with Applicable Law and insurance 440 requirements provided in Article 6.
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DRAFT July 2024 13 City of Cupertino/ _____________ Agreement 441 4.12 ALTERNATIVE FACILITY(IES)
442 A. Alternative Facility for Reasons other than Uncontrollable Circumstances. If Contractor does not 443 Process City’s Delivered Materials at the Facility for reasons other than Uncontrollable 444 Circumstances, then following City approval given in City’s sole discretion, Contractor will: (i) 445 receive, Accept, and Process City’s Delivered Materials at another facility owned by it or an Affiliate 446 at a price not to exceed the Per-Ton Rate in effect under this Agreement and pay City for any 447 additional material Transportation costs incurred by City or Collection Contractor in delivering City’s 448 Delivered Materials to the other facility, or (ii) arrange for City’s Delivered Materials to be Processed 449 at another facility not Owned by it or an Affiliate, in which case Contractor will pay any difference 450 in the per-ton rate charged at that Processing location compared to the Per-Ton Rate plus any 451 additional Transport costs incurred by City or Collection Contractor in delivering the all tons of 452 Delivered Materials to the Processing facility.
453 B. Alternative Facility for Uncontrollable Circumstances. If Contractor does not Process City’s 454 Delivered Materials at the Facility due to Uncontrollable Circumstances, then promptly upon City 455 direction Contractor will, to the extent it is legally able to do so in accordance with Applicable Law, 456 receive, Accept, and Process Delivered Materials at another Processing facility owned by it or an 457 Affiliate at a per-ton rate not to exceed the Per-Ton Rate in effect under this Agreement. Contractor 458 is not obligated to pay for any additional Transport costs incurred by City or Collection Contractor 459 in delivering City’s Delivered Materials to the other facility. If City does not so direct Contractor, City 460 may in its sole reasonable discretion terminate this Agreement as provided in accordance with 461 Section 7.02 and 8.12.
462 C.Alternative Facility(ies). Contractor has proposed and City has approved use of the Alternative 463 Facility(ies) specified in Exhibit A. Contractor is solely responsible for ensuring continued availability 464 of City-approved Alternative Facility(ies) throughout the Term. 465 4.13 INVOICING AND MONTHLY REPORT
466 On or before the fifteenth (15th) Day of each month, Contractor shall invoice or otherwise charge 467 Collection Contractor in amounts equal to the then-current Per-Ton Rate pursuant to Article 5 multiplied 468 by Tonnages of City’s Solid Waste delivered by the Collection Contractor to the Facility during the previous 469 month. Contractor will simultaneously provide the City a copy of that invoice for the purpose of review 470 before payment. Invoices will only be for tons collected as a result of services covered by the City’s 471 agreement with the Collection Contractor and shall not include tons collected from schools, 472 unincorporated areas or any other generators receiving services from the Collection Contractor under 473 separate agreements. Contractor shall work with Collection Contractor and Approved Facility(ies) to 474 determine methodology to ensure correct invoicing. Invoices will be in a form satisfactory to the Collection 475 Contractor, subject to City approval. All undisputed amounts shall be payable by Collection Contractor 476 within thirty (30) Days of receipt of the invoice. For example, for services provided in July, Contractor will 477 invoice Collection Contractor on or before August 15 and payment will be due and payable by Collection 478 Contractor on or before September 15. The Collection Contractor shall, within fifteen (15) Days of receipt 479 of invoice, identify any disputed charges and communicate these to Contractor. Contractor may deliver 480 to Collection Contractor, with a copy to the City a Notice of late payment for a given monthly invoice 481 thirty-five (35) Days after the date of generation of the invoice. Contractor’s invoices shall be deemed 482 delinquent if Collection Contractor has not paid within sixty (60) Days of the date of the Notice of late 483 payment. Thereafter, Contractor may suspend receipt and Acceptance of City’s Solid Waste deliveries 258
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DRAFT July 2024 14 City of Cupertino/ _____________ Agreement 484 from the Collection Contractor until the delinquent invoice(s) are paid in full excluding disputed amounts. 485 The delinquent invoice shall bear interest on the unpaid balance at a rate not to exceed one and one-third 486 percent (1 1/3%) per month.
487 Along with its monthly invoice, Contractor shall provide a report to Collection Contractor, with a copy to 488 the City presenting daily Tonnage received from Collection Contractor by material type, the actual average 489 monthly vehicle Turnaround Time (determined in accordance with Section 4.08), and the number of loads 490 of City Solid Waste in which the actual Turnaround Time was in excess of the Maximum Vehicle 491 Turnaround Time. The City Representative may at any time request changes to Contractor’s monthly 492 report format and/or content, and Contractor shall not unreasonably deny such requests. 493 4.14 REPORTING
494 A. General. Contractor will submit an Annual Report described in this Section no later than forty-five 495 (45) Days after the end of each Rate Period. City shall have the right to inspect all documents upon 496 which the representations contained in said report are based. If Contractor does not submit the 497 Annual Report by the due date, it will pay Liquidated Damages as provided in Section 7.06 and 498 Exhibit E.
499 If City identifies a material error in an Annual Report or omission of required information that is not 500 corrected after following the process below, City may assess Liquidated Damages in accordance 501 with Section 7.06 and Exhibit E.
502 If the Contractor identifies an error in an Annual Report it submitted to the City, Contractor shall 503 Notify the City of the error and submit a corrected Annual Report within fifteen (15) Days of the 504 Notice. City agrees to waive Liquidated Damages in the event Contractor self-identifies an error and 505 submits the corrected Annual Report within fifteen (15) Days of Contractor’s Notice to the City. If 506 Contractor is late in submitting the corrected Annual Report, the City may assess Liquidated 507 Damages for the late report as provided in Section 7.06 and Exhibit E. 508 B. Report Format. Contractor shall propose Annual Report formats for review and approval by City. 509 City’s approval shall not be unreasonably withheld. The City Representative may at any time review 510 and request changes to Contractor’s report formats and content, and Contractor shall not 511 unreasonably deny such requests.
512 Contractor shall submit (via mail and/or e-mail at the City’s option) all reports to the City's 513 Representative.
514 The City reserves the right to require Contractor to provide additional reports or documents as City 515 Representative reasonably determines to be required for the administration of this Agreement or 516 compliance with Applicable Law.
517 C. Report Content. Annual reports shall, at a minimum, include the following:
518 1. Total number of vehicle loads delivered by Collection Contractor vehicles to the Facility for each 519 month in the Rate Period and in total for the most-recently-completed Rate Period. 520 2. Totals Tons for all vehicle loads delivered by Collection Contractor vehicles to the Facility for 521 each month in the Rate Period and in total for the most-recently-completed Rate Period. 259
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DRAFT July 2024 15 City of Cupertino/ _____________ Agreement 522 3. Average Tons per vehicle load delivered by Collection Contractor to the Facility for the most523 recently-completed Rate Period. 524 4. Date, time, route number, Collection Contractor truck number, and reason for Contractor 525 rejection of any delivered vehicle loads for each month in the Rate Period and in total for the 526 Rate Period.
527 5. Tons of material Processed at the Facility for the most-recently-completed Rate Period. 528 6. For C&D Materials Processing, the Tons of Delivered Material Diverted at the Facility and 529 Diversion rate for each month in the Rate Period and in total for the Rate Period, listed 530 separately by Recovered Material type. Contractor shall separately report the Tons and 531 Diversion rate for commingled C&D Materials and Source Separated C&D Materials, in 532 addition to overall Diversion rate, in accordance with Section 4.02.B. 533 7. Annual Tonnage of Solid Waste Disposed that is not generated within the City’s boundaries or 534 generated by organizations with separate waste collection agreements (e.g. schools) within 535 City's boundaries.
536 8. Total Annual Residue, and Contractor’s allocation of Residue to the City as provided in Section 537 4.02E.
538 9. Documentation that Contractor paid all Government Fees and taxes in accordance with 539 Sections 5.05 and 5.06.
540 10. List of any Violations received by the Facility during the Rate Period. 541 11. Facility capacity status report that identifies the remaining permitted capacity, the aggregate 542 capacity committed to other entities through Contractor’s contracts, and the available, 543 uncommitted capacity, and the estimated remaining years of Facility capacity. 544 12. Any relevant information related to Extended Producer Responsibility programs as specified in 545 Section 4.22E to be reported to the City.
546 13. Other relevant information including, but not limited to, a description of any advances in 547 environmental mitigation measures; any advanced technologies utilized in the course of 548 business; any pilot programs which test advanced technologies; any new third-party 549 certifications for Diversion or other Facility standards; and report on any recent, or pending 550 changes in Facility Permits.
551 4.15 DUE DILIGENCE
552 Contractor acknowledges that waste management is a public health and safety concern. It agrees that it 553 will exercise due diligence in performing Service.
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DRAFT July 2024 16 City of Cupertino/ _____________ Agreement 554 4.16 RESERVED
555 4.17 RIGHT TO ENTER FACILITY AND OBSERVE OPERATIONS 556 The City and its designated representative(s) may enter, observe, and inspect the Facility accompanied by 557 Facility manager(s) at any time during Facility operations and meet with the Facility manager(s) or their 558 representatives upon at least seventy-two (72) hours advance notice, provided that City and its 559 representatives comply with Contractor’s reasonable safety and security rules and do not interfere with 560 the work of the Contractor or its Subcontractors.
561 4.18 RESERVED
562 4.19 SERVICE STANDARDS
563 Contractor will perform Services in accordance with Applicable Law, Standard Industry Practice, and 564 specification and other requirements of this Agreement. 565 4.20 CLIMATE AND DISASTER RESILIENCY
566
567 A. Climate and Disaster Resiliency Planning. No less than ninety (90) calendar days prior to the 568 Commencement Date, the Parties shall meet to discuss development of a Climate and Disaster 569 Response Plan to address the role of the Contractor in addressing City’s disaster debris management 570 needs related to wartime, natural, physical, or other disaster in, or proximate to the City resulting 571 in the declaration of a State of Emergency by the City Manager, or City Council, or by the Governor, 572 County Board of Supervisors, County Health Office, or County Sheriff. 573 B. Disaster Response Protocol. The Parties shall develop and finalize a Disaster Response Plan prior 574 to the Commencement Date that identifies specific communication and logistical actions, and such 575 other coordination between the Parties and internal to each Party such that Contractor assistance 576 can occur immediately following City declaration of an emergency. The Climate and Disaster 577 Response Plan to be developed by the Parties as provided in this Section shall be included in the 578 Agreement as Exhibit B-2. The Parties shall review the Protocol no less than annually and revise as 579 warranted.
580 C. Essential Service. Contractor acknowledges that it provides an essential service, and that while 581 provision of Disposal service during or following a disaster may be affected by impacts to facilities, 582 equipment, and/or public infrastructure, the Contractor is obligated to take all measures reasonably 583 necessary to provide such service in a timely and effective manner in compliance with this 584 Agreement, Section 8.12.A. notwithstanding. Such measures may include, but are not limited to, a 585 change in Approved Facility(ies) and/or Alternative Facility(ies). 586 D. Availability of Contractor’s Personnel and Equipment. In the event of a declaration of an 587 emergency as provided in subsection A., Contractor shall provide, upon City request, reasonable 588 access to equipment, vehicles, and/or personnel normally performing services under this 589 Agreement, for use by the Contractor in conducting emergency operations within the City. These 590 emergency services shall be performed in consultation with the City Representative to ensure 591 appropriate prioritization of services. Neither the Collection Contractor nor the City shall be 261
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DRAFT July 2024 17 City of Cupertino/ _____________ Agreement 592 required to compensate Contractor for the Contractor’s provision of equipment, vehicles, or 593 personnel normally performing services under this Agreement when made available during a 594 declaration of emergency for the Contractor’s use in excess of what is otherwise payable to the 595 Contractor pursuant to this Agreement, including but not limited to 4.20.E. below and Article 5. 596 E. Contractor Reimbursement for Use of Additional Resources. In the event of a declaration of an 597 emergency, should the Contractor provide, upon City request, additional equipment, vehicles, 598 and/or personnel beyond that normally performing services under this Agreement, for use by the 599 Contractor in conducting emergency operations under City direction, the Contractor may submit to 600 the City detailed records of specific, additional, and reasonable costs and expenses borne by the 601 Contractor in providing such additional resources. The City shall reimburse the Contractor for such 602 documented, reasonable expenses within ninety (90) Days after the City receives State and/or 603 Federal emergency agency reimbursement specific to these expenses. Should such State and/or 604 Federal reimbursement not occur within five hundred and forty (540) Days after the Contractor’s 605 complete submission as verified by the City, Contractor may seek a change in Contractor 606 Compensation under the terms of this Agreement. The Contractor shall promptly cooperate with 607 the City, State and/or Federal reporting and documentation requirements related to a request for 608 reimbursement. The Contractor shall further comply with all applicable Federal, State, or local 609 funding and accounting requirements that may apply to expenses that will be reimbursed upon 610 notice of the same from the City.
611 F. Disaster Waivers. In the event of a disaster, the City may grant the Contractor a waiver of some or 612 all permit, Processing and/or Disposal requirements under this Agreement and 14 CCR, Division 7, 613 Chapter 12, Article 3 in the disaster-affected areas for the duration of the waiver, provided that 614 such waiver has been approved by CalRecycle. Any resulting changes in Processing requirements 615 shall be addressed as a change in scope in accordance with Section 4.23. 616 4.21 GENERATION, CHARACTERIZATION, AND PILOT STUDIES 617 The Contractor acknowledges that the City, CalRecycle, other governmental agencies, or Extended 618 Producer Responsibility Programs may wish to perform and/or participate in periodic material generation 619 or characterization studies or pilot programs related to materials covered under this Agreement. The 620 Contractor agrees to reasonably participate and cooperate with the City and its agents and to perform 621 studies and data collection exercises, as reasonably needed, to determine weights, volumes and 622 composition of materials generated and/or Disposed. If the City requires Contractor to participate in such 623 a study or program, Contractor and the City shall mutually agree on the scope of services to be provided 624 by Contractor and the change in Contractor Compensation, if any, that the City will pay to Contractor 625 specifically for such participation. In any event, Contractor shall permit and in no way interfere with, 626 except as to compliance with Applicable Law and safety rules at its Facility, the handling of the subject 627 materials by other Persons for such purposes.
628 4.22 EXTENDED PRODUCER RESPONSIBILITY PROGRAMS
629 A. General. The City and the Contractor acknowledge that the requirements under the existing 630 Extended Producer Responsibility Programs (including, but not limited to, AB 1201, SB 1383, SB 54, 631 and SB 343) may be applicable to the services provided by the Contractor under this Agreement, 632 and that additional or amended Extended Producer Responsibility Programs may be established in 633 the future. The Contractor further acknowledges that, because the Facility accepts materials from 262
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DRAFT July 2024 18 City of Cupertino/ _____________ Agreement 634 the public that may be regulated by an Extended Producer Responsibility Program, the Contractor 635 may be uniquely positioned to operate or participate in such programs. 636 B. Change in Scope. The City may require Contractor’s compliance with, and participation in, existing 637 and/or new Extended Producer Responsibility Programs that may include modification to Collection 638 Contractor’s allowable materials or Contractor implementation of drop-off program(s) at the 639 Facility, to the extent that doing so is reasonably appropriate and does not violate the permits of 640 the subject Facility.
641 Any and all such City requests and/or requirements related to any Extended Producer Responsibility 642 Program shall be treated as a change in scope and shall not be treated as a Change in Law; provided, 643 however, that the Contractor shall be expressly precluded from requesting an Extraordinary Rate 644 Adjustment for a change in scope if the Contractor is compensated, in whole or in part, for 645 Processing, Recovery, and/or Diversion cost associated with such participation. Additionally, the 646 Contractor shall be expressly precluded from requesting any Extraordinary Rate Adjustment, as 647 described in this Section, for any materials Contractor represented it was already Recovering and 648 Diverting.
649 C. City Right to Solicit Proposals. The City may, from time-to-time, request that the Contractor initiate 650 or participate in an Extended Producer Responsibility Program; provided, however, that the 651 Contractor acknowledges and agrees that the City is under no obligation to request any such 652 proposal from the Contractor. Furthermore, the Contractor acknowledges and agrees that, at any 653 time during the Term of this Agreement, the City may solicit proposals from other Persons related 654 to Extended Producer Responsibility Programs and may permit other Persons besides Contractor to 655 provide such services, as provided for in Section 4.01B.15 and that nothing herein shall prevent the 656 City from also soliciting cost and operating information from other Persons in order to inform the 657 City’s evaluation of any Contractor-provided proposal. 658 D. City Requested Proposal. If the City requests an Extended Producer Responsibility Program 659 proposal from Contractor under this Section, the Contractor shall be required seek out and 660 coordinate with the applicable Stewardship Organization designated for the applicable program and 661 shall describe such partnership in its proposal; these requirements are in addition to the 662 requirements provided in Section 4.23. The City’s written request for a proposal may also require 663 additional and/or specific information relating to the Extended Producer Responsibility Program, 664 including such information determined by the City Representative (at the City Representative’s sole 665 discretion) to be reasonably necessary. The City shall review the proposal and may request 666 additional supporting documentation, calculations, or other information necessary to evaluate the 667 Contractor’s proposal for reasonableness and to evaluate Contractor’s ability to comply with the 668 requirements of the Extended Producer Responsibility Program. 669 As such, Contractor shall, by default, accept the City’s request to enact the Extended Producer 670 Responsibility program, unless the Contractor can demonstrate significant barriers that would make 671 providing such services impracticable or infeasible. The Contractor shall express any objections or 672 concerns during the meet-and-confer period and Contractor shall provide substantial evidence of 673 such barriers in Contractor’s proposal. Such information will be further reviewed by the City. 674 E. Record Keeping and Reporting. The Contractor acknowledges that, as part of the services provided 675 under this Agreement, the Contractor’s participation in any Extended Producer Responsibility 263
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DRAFT July 2024 19 City of Cupertino/ _____________ Agreement 676 Program may impact the City, subscribers to Collection services, City, and other City service 677 providers. As such, regardless of whether the Contractor is specifically contracted under this 678 Agreement to provide any such Extended Producer Responsibility Programs under this Agreement, 679 the Contractor acknowledges and agrees it has obligations to the City, nonetheless. 680 Throughout the Term of this Agreement, the Contractor shall maintain records of all funding or 681 other resources the Contractor receives directly or indirectly through an Extended Producer 682 Responsibility Program. The Contractor shall inform and report to the City as part of Contractor’s 683 obligations under Section 4.14C and shall calculate and demonstrate the dollar amount that can be 684 attributed to services provided under this Agreement. Any cost savings identified shall be remitted 685 to the City as either a direct payment sent to the City within thirty (30) Days after Contractor’s 686 receipt of funds or as a reduction to the Contractor’s Per-Ton Rate in accordance with Article 5, at 687 the City Representative’s sole discretion. The Contractor shall include copies of invoices or receipts 688 with the applicable Stewardship Organization with its payment or Tipping Fee Application, as 689 appropriate, regardless of whether the City is aware such funding or other resources have been 690 received by the Contractor.
691 The Contractor shall also maintain all operational and financial records related to Extended 692 Producer Responsibility Programs as provided in Section 8.13 and report such information to the 693 City in accordance with Section 4.14 or as otherwise requested by the City Representative. 694 4.23 MODIFICATIONS TO SCOPE OF SERVICE
695 A. General. City may direct Contractor to perform additional Services (including, but not limited to, 696 the performance of additional material Recovery activities and Extended Producer Responsibility 697 Programs as provided in Section 4.22) or the Contractor may propose additional Services. Per-Ton 698 Rates will be increased or decreased, in accordance with this Section, to give effect to these 699 adjustments.
700 B. Proposal for Modification of Services. Within sixty (60) Days of City request for a proposal or at any 701 time Contractor chooses to propose additional Services, Contractor will present its proposal to 702 modify existing Services. At a minimum, the proposal will contain a completed description of the 703 following:
704 1. Methodology to be employed (changes to equipment, labor needs, staffing, etc). 705 2. Equipment to be utilized (equipment number, types, capacity, age, etc). 706 3. Labor requirements (changes in number of employees by classification). 707 4. Provision for program publicity/education/marketing (if appropriate). 708 5. Estimate of the impact of the Service modification (increased Diversion Tonnage, reduced 709 costs, increased public Service, etc).
710 6. Five- (5-) year projection of the financial results of the program’s operations in a balance sheet 711 and operating statement format including documentation of the key assumption underlying 712 the projections and the support for those assumptions, giving full effect to the savings or costs 713 to existing Services.
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DRAFT July 2024 20 City of Cupertino/ _____________ Agreement 714 C. City’s Review. If the City does not review, comment, and approve or disapprove of the modification 715 to the scope of Services within ninety (90) Days of receiving the Contractor’s proposal, the proposal 716 will be deemed disapproved. The City and Contractor may mutually agree to extend the time period 717 for review due to the complexity of the scope of Service modification under consideration, the time 718 needed for the review or approval, or for other reasonable reasons. 719 The City may request the assistance of an independent third party to review the proposal. 720 Contractor shall pay the reasonable costs of that review if the modification to the scope of Services 721 is initiated by the Contractor. City shall pay those costs if the modification to the scope of Services 722 is initiated by the City. The cost of that review will be estimated in advance of the work and provided 723 to the Contractor for comment and agreement to pay. Contractor’s refusal to pay the reasonable 724 cost of review of a Contractor-initiated proposal will be grounds for City rejection of that proposal. 725 Contractor will promptly provide operating and business Records requested by City that are 726 reasonably required to verify the reasonableness and accuracy of the impacts associated with a 727 modification to the scope of Services. Contractor will fully cooperate with City’s request and provide 728 City and its agent(s) copies of or access to Contractor’s Records. 729 If Contractor and City cannot agree on terms and conditions of Services within thirty (30) Days of 730 the end of City’s review period described in this subsection, City may permit Persons other than 731 Contractor to provide those Services at a location other than the Facility. 732 D. Approval of Modification to Scope of Services. Upon City approval or determination, City will issue 733 a Notice approving the modification to the scope of Service and documenting any change to the 734 Per-Ton Rates, and approved change to Contractor’s obligations under this Agreement. The Parties 735 will prepare a written amendment to the Agreement documenting any and all changes resulting 736 from the modification to the scope of Services. No adjustment in Per-Ton Rates, change in 737 Contractor’s obligations, or change in scope of Services will become effective absent that City 738 approval or determination.
739 ARTICLE 5.
740 CONTRACTOR COMPENSATION
741 5.01 GENERAL
742 The Contractor will perform all of its Services, obligations, responsibilities, and duties under this 743 Agreement, including paying costs associated with obtaining and complying with all Permits; operating 744 the Facility in full compliance with Applicable Law; constructing the Facility ; monitoring for environmental 745 impacts; and, remedying environmental damage. In consideration of its performance of these duties, the 746 Contractor may charge and collect the Per-Ton Rates from Collection Contractor for each Ton of City’s 747 Delivered Materials that Collection Contractor delivers to the Facility, and may charge and collect from 748 Collection Contractor for each Ton of Delivered Materials delivered to the Facility by employees of City. 749 The City is responsible for payment of any and all sums due under this Agreement or consequent to 750 delivery of the Services, with the exception that the Contractor shall invoice the City for payment of any 751 Delivered Materials delivered to the Facility by employees of City performing City duties and for the 752 provision of emergency Services pursuant to Section 4.13. 265
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DRAFT July 2024 21 City of Cupertino/ _____________ Agreement 753 Contractor Compensation provided for in this Article and Section 4.20.E. shall be the full, entire, and 754 complete compensation due to Contractor pursuant to this Agreement for all labor, equipment, materials 755 and supplies, taxes, insurance, bonds, overhead, operations, profit, Government Fees, and all expenses 756 Contractor deems necessary to perform all the Services required by this Agreement in the manner and at 757 the times prescribed. Except under Section 4.20.E., nothing herein shall obligate City or Collection 758 Contractor to provide any compensation to Contractor beyond Per-Ton Rates. 759 If Contractor’s actual costs, including any fees or payments due to others, are more than the Per-Ton Rate 760 and/or more than gross receipts received under this Agreement, Contractor shall not be compensated for 761 the difference in actual costs and actual Per-Ton Rates or gross receipts except to the extent City grants 762 an extraordinary Rate adjustment request pursuant to Section 5.04 or under Section 4.20.E. If Contractor’s 763 actual costs are less than the actual Per-Ton Rates or actual gross receipts, Contractor shall retain the 764 difference.
765 The Per-Ton Rate(s) approved by City for Rate Period One is presented in Exhibit B-3. The Parties 766 acknowledge that the Per-Ton Rate provided for in this Agreement has been determined on the basis of 767 the exclusive and long-term nature of City’s obligations hereunder. 768 5.02 PER-TON RATE
769 A. General. The Per-Ton Rate shall have two components: (i) the Contractor Component; and, (ii) 770 the Governmental Fee Component; the sum of which shall equal the total Per-Ton Rate. The 771 “Contractor Component” of the Per-Ton Rate reflects the Contractor’s Compensation for the 772 Services provided under this Agreement. The Governmental Fee Component reflects Government 773 Fees and taxes assessed on a per-Ton basis in connection with providing the Services required 774 under this Agreement and represent a pass-through payment to Contractor. The applicable 775 Government Fees and the Governmental Fee Component for the initial Per-Ton Rates are 776 contained in Exhibit B-3.
777 The Per-Ton Rate for any Delivered Materials delivered to the Facility by an employee of City 778 performing City duties will equal the Per-Ton Rate. 779 The City shall be responsible for adjusting the Per-Ton Rate as described in this Article 5. 780 B. Per-Ton Rate for Rate Period One. The Per-Ton Rate for Rate Period One was proposed by 781 Contractor, finalized through negotiation with the City, and approved by City Council on or before 782 the execution of the Agreement. The Per-Ton Rate for Rate Period One will be effective from the 783 Service Commencement Date of this Agreement through February 1, 2027, and is contained in 784 Exhibit B-3.
785 5.03 PER-TON RATE ADJUSTMENTS
786 The Per-Ton Rate for all Rate Periods following Rate Period One shall be adjusted annually commencing 787 with the first adjustment that will be effective on February 1, 2027. The Per-Ton Rate adjustment will be 788 performed in accordance with this Section.
789 A. Definitions. For the purposes of this Section, the following terms are defined as follows:
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DRAFT July 2024 22 City of Cupertino/ _____________ Agreement 790 1. “Annual Percentage Change” means the Average Index Value of an index for the twelve- (12-) 791 month period ending June of the then-current Rate Period minus the Average Index Value 792 for the twelve- (12-) month period ending June of the most-recently completed Rate Period, 793 divided by the Average Index Value for the twelve- (12-) month period ending June of the 794 most-recently completed Rate Period. The Annual Percentage Change shall be rounded to the 795 nearest thousandth (0.000). The first Annual Percentage Change shall allow for an adjustment 796 of the first year Rate Period plus the initial term, from the Commencement Date to the start 797 of Rate Period one. Therefore, the first Annual Percentage Change shall be from November 798 21, 2025 to February 1, 2027. In no case shall this first Annual Percentage Change be adjusted 799 by more than 6%, nor less than 0%. The amount of the fist rate adjustment will reflect the 800 longer duration of the initial rate period relative to the standard 12-month term and will be 801 calculated proportionally for a 14-month period.
802 2. “Average Index Value” means the sum of the monthly index values during the twelve- (12-) 803 month period ending in June divided by twelve (12) (in the case of indices published monthly) 804 or the sum of the bi-monthly index values divided by six (6) (in the case of indices published 805 bi-monthly).
806 For example, if the Contractor is preparing its Rate application for Rate(s) to be effective for 807 Rate Period Two (February 2028 – January 2029), the Annual Percentage Change in CPI shall 808 be calculated as follows: [(Average CPI for July 2026 through June 2027) minus (Average CPI 809 for _July 2025 through June 2026)] divided by (Average CPI for July 2025 through June 2026)]. 810 3. “CPI” means the All Urban Consumers Index (CPI-U) compiled and published by the U.S. 811 Department of Labor, Bureau of Labor Statistics or its successor agency, using the following 812 parameters:
813 Area – San Francisco-Oakland-Hayward Metropolitan Area 814 Item – All Items
815 Base Period – Current 1982-84=100
816 Not seasonally adjusted
817 Periodicity – Bi-monthly
818 Series ID – CUUSS49BSA0
819
820 If said CPI is discontinued, it shall be replaced by the CPI which the City Representative 821 determines most closely approximates the original category as determined by the U.S. Bureau 822 of Labor Statistics.
823 B. Contractor Component. The Contractor Component of the Per-Ton Rate will be adjusted annually 824 on the basis of hundred percent (100%) of the Annual Percentage Change in the CPI; or, five percent 825 (5%), whichever is less, with a minimum adjustment of zero percent. 826 C. Governmental Fee Component. The Governmental Fee Component of the Per-Ton Rate will only 827 be adjusted upward or downward, and Government Fees added or deleted to reflect actual 828 mandated changes in Government Fees which are outside the control of Contractor. Government 829 Fees for Rate Period One are presented in the table in Exhibit B-3. 830 In making adjustments to the Governmental Fee Component, Contractor shall increase or reduce 831 the Governmental Fee Component for any Government Fee that is imposed, increased, or reduced 267
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DRAFT July 2024 23 City of Cupertino/ _____________ Agreement 832 to reflect actual changes in the fees. Contractor shall provide documentation demonstrating to the 833 City’s satisfaction any change in the governmental fees. 834 D. Total Adjusted Per-Ton Rate. The total adjusted Per-Ton Rate will be calculated as the sum of the 835 adjusted Contractor Component, as calculated in subsection B above, and the adjusted 836 Governmental Fee Component, as calculated in subsection C above. 837 E. Adjusted Per-Ton Rate for City-Hauled Solid Waste. The adjusted Per-Ton Rate for any Delivered 838 Materials delivered to the Facility by an employee of City, performing City duties, will equal the 839 adjusted Per-Ton Rate (determined in accordance with subsection D). 840 F. Per-Ton Rate Adjustment Application. Annually on August 1, Contractor will submit to City 841 Representative an application requesting the adjustment of Per-Ton Rate for the coming Rate 842 Period via email that includes a letter request that summarizes the requested Per-Ton Rate 843 adjustment and editable Microsoft Excel file that presents all supporting schedules, formulas, and 844 calculations. For example, on August 1, 2027, Contractor will submit its Rate adjustment application 845 for the adjustment of Per-Ton Rate to be effective February 1, 2028 (i.e., Rate Period Two). 846 Proposer: Application to be submitted no less than 120 days prior to the effective date for the 847 adjusted rate. Above dates to be filled in based on the actual Commencement Date. 848 Such application will include the Per-Ton Rate adjustment calculations in accordance with Section 849 5.03.A through 5.03.E and an updated Per-Ton Rate table. 850 City will evaluate Contractor’s application for mathematical accuracy and consistency with the 851 requirements of the Agreement and may require changes to the application prior to approval on 852 the basis of the application’s mathematical inaccuracy or failure to comply with the procedures 853 defined in the Agreement. Upon City Representative’s agreement, which shall not be unreasonably 854 withheld, delayed or conditioned, that the calculations are consistent with the requirements of this 855 Agreement and are mathematically accurate, the Per-Ton Rate adjustment (if any) will be approved 856 by City Representative.
857 G. No Other Adjustments. As of the Service Commencement Date, the Per-Ton Rate set forth in 858 Section 5.02 and adjusted in accordance with Sections 5.03 and 5.04 will not be increased thereafter 859 to include any of the following costs of providing Services, even if Contractor’s projections and 860 estimates thereof prove inaccurate:
861 1. Costs incurred due to Contractor's negligence or misconduct 862 2. Costs incurred due to Permit changes of which Contractor did not provide timely Notice 863 3. Any fines or penalties imposed on Contractor or the Facility unless due to Excluded Waste 864 delivered to Facility by City or Collection Contractor 865 4. Cost of remediation and cost recoveries pursuant to Applicable Law, including Comprehensive 866 Environmental Response, Compensation and Liability Act (CERCLA) and RCRA, as applicable 867 5. Costs attributable to changing the classification of the Facility under Applicable Law, unless 868 directed by City in accordance with Section 4.23
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DRAFT July 2024 24 City of Cupertino/ _____________ Agreement 869 6. Costs and expenses related to the handling of Unpermitted Waste 870 7. Increases in Contractor costs to provide Services including, but not limited to, costs for labor, 871 fuel, equipment, maintenance, and monitoring (except as Contractor’s costs are adjusted in 872 Sections 4.20.E., 5.03 and 5.04).
873 H. Dispute Resolution. All disputes arising under this Section will be resolved in accordance with 874 Section 8.17. If a dispute exists, the Per-Ton Rate may be increased retroactively but will not be 875 adjusted until the dispute has been resolved.
876 5.04 EXTRAORDINARY RATE ADJUSTMENTS
877 A. General. Except as modified under Section 4.23, or as provided in Sections 2.02 and 5.03.B, 878 Contractor acknowledges that it assumes and accepts the risk for changes in cost of providing 879 Services and/or quantities and composition of Delivered Materials delivered to the Facility, and 880 therefore the extraordinary adjustments to Per-Ton Rate shall be limited to a Change in Law, or a 881 City-directed change in scope of Services that has a material, documented impact on the 882 Contractor’s cost of providing the Processing Service as specified in Section 8.10. If a Change in Law 883 or City-directed change in scope of Services (pursuant to Section 4.23) occurs, the Contractor may 884 petition City for an adjustment to the Per-Ton Rate in excess of the annual adjustment as described 885 in Section 5.03.
886 B. Extraordinary Rate Adjustment Application. Contractor shall prepare an application for the 887 extraordinary Per-Ton Rate adjustment calculating the net financial effect on its operations (both 888 increases and decreases of costs) resulting from the Change in Law or City-directed change in scope 889 of Services, clearly identifying all assumptions related to such calculations and providing such 890 underlying documentation as is necessary to fully support the assumptions. The application shall 891 provide all information reasonably requested by City Representative specific to the nature of the 892 request being made. City Representative shall evaluate the application for reasonableness. As part 893 of that review, City Representative may request access to the financial statements and accounting 894 Records required to be maintained by the Contractor (pursuant to Section 8.13.D) in order to 895 determine the reasonableness of the Contractor’s application. Should the Contractor not grant such 896 access, then City may rely on the Contractor’s Proposal for Post-Collection Services (and 897 subsequent, related correspondence) and other information available to it as the basis for making 898 reasonable assumptions regarding what those accounting and financial Records would have shown 899 and, therefore, the reasonableness of the Contractor’s application. Alternatively, the City 900 Representative may make a determination of the validity of the request based solely on the 901 information provided by Contractor through the application process. Contractor shall pay all 902 reasonable costs incurred by City, including the reasonable costs of outside accountants, attorneys, 903 and/or consultants, in order to make a determination of the reasonableness of the requested Rate 904 adjustment.
905 In the event of such an application for extraordinary Per-Ton Rate adjustment, it is understood that 906 City or Contractor, as the case may be, shall have the burden of demonstrating the reasonableness 907 of the requested adjustment.
908 If the extraordinary Per-Ton Rate adjustment review warrants an increase in the applicable Per-Ton 909 Rate(s) outlined above to compensate Contractor, the adjustment shall cover only Allowable Costs 269
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DRAFT July 2024 25 City of Cupertino/ _____________ Agreement 910 (defined below) and such Allowable Costs shall be in the proportion of the total volume and type of 911 material that Contractor reasonably projects that City will deliver to the Facility for the Term of this 912 Agreement compared with all other customers of the Facility. 913 “Allowable Costs” shall include: incremental operating, maintenance, monitoring, reporting, and 914 capital costs, including, but not limited to, the costs of making improvements or modifications, at 915 the Facility necessary to perform under this Agreement, but only to the extent brought about by 916 Change in Law or City-directed change in scope of Services that are not otherwise reflected in the 917 calculations used to adjust the Per-Ton Rate (e.g., Contractor Component and Governmental Fee 918 Components pursuant to Section 5.03). Contractor shall Notify City in writing sixty (60) Days in 919 advance of any request for increase in the Per-Ton Rate pursuant to this Section. 920 The City shall have a ninety (90) Day review period following receipt of Contractor’s application for 921 the requested Per-Ton Rate adjustment. During this period, City may request, and Contractor shall 922 provide, supporting documentation that justifies the increase. Should the Parties be in dispute over 923 the adjusted Per-Ton Rate at the end of the ninety (90) Day period, no adjustment shall be made, 924 and the dispute shall be subject to Section 8.17 of this Agreement. Upon resolution of the dispute 925 or both Parties’ agreement on the adjustment of the Per-Ton Rate, Contractor shall be entitled to 926 the adjusted Per-Ton Rate retroactively to latter of the end of the sixty (60) Day advanced Notice 927 period or the effective date of the increased Allowable Costs. 928 5.05 PAYMENT OF GOVERNMENT FEES
929 Contractor will timely pay any and all Government Fees to the appropriate federal, State, regional, or local 930 governmental entities that levied the Government Fees and will promptly provide City with proof of 931 payments upon City direction.
932 5.06 PAYMENT OF TAXES
933 Contractor will timely pay all Government Fees, assessments, or taxes incurred as a result of the 934 Contractor’s provision of Services, including estimated taxes. Contractor will promptly provide City with 935 proof of payments upon City direction.
936 ARTICLE 6.
937 INDEMNITY AND INSURANCE
938 6.01 INDEMNIFICATION
939 A. General. Contractor shall indemnify, defend with counsel reasonably acceptable to City, and hold 940 harmless (to the full extent permitted by law) City and its officers, elected and appointed officials, 941 employees, and agents from and against any and all claims, liability, loss, injuries, damage, expense, 942 and costs (including without limitation costs and fees of litigation, including reasonable attorneys’ 943 and expert witness fees and costs) (collectively, “Damages”) of every nature arising out of 944 Contractor’s performance of this Agreement during the Term of this Agreement, regardless of when 945 the Damages are asserted, or its failure to comply with any of its obligations contained in this 946 Agreement, except to the extent such loss or damage was caused by the gross negligence or willful 270
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DRAFT July 2024 26 City of Cupertino/ _____________ Agreement 947 misconduct of City or Collection Contractor. The provisions of this Section shall survive the 948 expiration or termination of this Agreement and shall not be construed as a waiver of City’s legal or 949 equitable rights as defined herein and permitted under Applicable Law. 950 B. Excluded Waste Indemnification. Contractor acknowledges that it is responsible for compliance 951 during the entire Term of this Agreement with all Applicable Laws. Contractor shall not store, 952 Transport, use, or Dispose of any Excluded Waste except in strict compliance with all Applicable 953 Laws.
954 Contractor shall indemnify, defend with counsel acceptable to the City, protect and hold harmless 955 the City, officers, employees, and agents (collectively, “indemnitees”) from and against all claims, 956 damages, injuries, costs, , losses, demands, debts, liens, liabilities, causes of action, suits, legal or 957 administrative proceedings, interest, fines, charges, penalties, and expenses (including, without 958 limitation, attorneys’ and expert witness fees and costs incurred in connection with defending 959 against any of the foregoing or in enforcing this indemnity), (collectively, “Damages”) of any kind 960 whatsoever paid, incurred or suffered by, or asserted against, indemnitees arising from or 961 attributable to the negligence and/or willful misconduct of Contractor, in connection with or related 962 to the arrangement for disposal of any Excluded Waste under this Agreement, including, without 963 limitation, damages arising from or attributable to any operations, repair, clean-up or 964 detoxification, or other plan (regardless of whether undertaken due to governmental action). , in 965 connection with or related to the arrangement for disposal of any Excluded Waste under this 966 Agreement, including, without limitation, damages arising from or attributable to any operations, 967 repair, clean-up or detoxification, or other plan (regardless of whether undertaken due to 968 governmental action).
969 The foregoing indemnity is intended to operate as an agreement pursuant to §107(e) of CERCLA, 42 970 USC. §9607(e) and California Health and Safety Code §25364, to defend, protect, hold harmless, 971 and indemnify City from liability.
972 This provision is in addition to all other provisions in this Agreement and shall survive the expiration 973 or earlier termination of this Agreement. Nothing in this paragraph shall prevent City from seeking 974 indemnification or contribution from Persons or entities other than indemnitees, for any liabilities 975 incurred by City or the indemnitees.
976 In the event that Contractor negligently or willfully mishandles Excluded Waste in the course of 977 carrying out its activities under this Agreement that causes environmental contamination, 978 Contractor shall at its sole expense promptly take all investigatory and/or remedial action 979 reasonably required for the remediation of such environmental contamination. Prior to undertaking 980 any investigatory or remedial action, however, Contractor shall first obtain City’s approval of any 981 proposed investigatory or remedial action, which shall not be unreasonably withheld, conditioned 982 or delayed. Notwithstanding the above, if DTSC approves an investigation or remedial action plan, 983 it shall be deemed approved by the City. Should Contractor fail at any time to promptly take such 984 action required by DTSC, City may undertake such action at Contractor’s sole cost and expense, and 985 Contractor shall reimburse City for all such expenses within thirty (30) calendar days of being billed 986 for those expenses. These obligations are in addition to any defense and indemnity obligations that 987 Contractor may have under this Agreement. The provisions of this Section shall survive the 988 termination or expiration of this Agreement.
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DRAFT July 2024 27 City of Cupertino/ _____________ Agreement 989 C. Regulatory Indemnification. Contractor’s duty to defend and indemnify herein includes all fines 990 and/or penalties imposed by any regulatory agency, if the requirements of Applicable Law, including 991 but not limited to AB 939 (1989), SB 341 (2011), AB 1826 (2014), SB 1383 (2016), SB 343 (2021), SB 992 54 (2022), AB 1201 (2022), and the Advanced Clean Fleets Rule are not met by City with respect to 993 the services provided under this Agreement, and such failure is: (i) due to the failure of Contractor 994 to meet its obligations under this Agreement; or, (ii) due to Contractor delays in providing 995 information that prevents Contractor or City from submitting reports to regulators in a timely 996 manner.
997 Notwithstanding any other provision in this Agreement, Contractor’s obligations in this subsection 998 C with respect to such Applicable Law shall be subject to the provisions of Section 40059.1 of the 999 Public Resources Code, and Contractor shall not be liable for any indemnity obligations or penalties 1000 under this Agreement in respect of any such requirements except to the extent that indemnity 1001 obligations by Contractor are enforceable under said Section. 1002 D. CalPERS Eligibility Indemnification. Contractor’s employees, agents, or Subcontractors providing 1003 service under this Agreement shall not: (i) qualify for any compensation and benefit under the 1004 California Public Employees Retirement System (“CalPERS”); (ii) be entitled to any benefits under 1005 CalPERS; (iii) enroll in CalPERS as an employee of City; (iv) receive any employer contributions paid 1006 by City for CalPERS benefits; or, (v) be entitled to any other CalPERS-related benefit that would 1007 accrue to a City employee. Contractor’s employees, agents, or Subcontractors hereby waive any 1008 claims to benefits or compensation described in this Section 9.1. This Section 9.1 applies to 1009 Contractor notwithstanding any other agency, State or Federal policy, rule, regulation, law, or 1010 ordinance to the contrary.
1011 If Contractor’s employees, agents, or Subcontractors providing services under this Agreement claim, 1012 or are determined by a court of competent jurisdiction or CalPERS to be eligible for enrollment in 1013 CalPERS of the City, Contractor shall indemnify, defend, and hold harmless City for the payment of 1014 any employer and employee contributions for CalPERS benefits on behalf of the employee as well 1015 as for payment of any penalties and interest on such contributions which would otherwise be the 1016 responsibility of the City.
1017 Contractor’s Compensation under this Agreement shall be the full and complete compensation to 1018 which Contractor and Contractor’s officers, employees, agents, and Subcontractors are entitled for 1019 performance of any work under this Agreement. Neither Contractor nor Contractor’s officers, 1020 employees, agents, and Subcontractors are entitled to any salary or wages, or retirement, health, 1021 leave, or other fringe benefits applicable to City employees. The City will not make any Federal or 1022 State tax withholdings on behalf of Contractor. The City shall not be required to pay any workers’ 1023 compensation insurance on behalf of Contractor.
1024 Contractor agrees to defend and indemnify the City for any obligation, claim, suit, or demand for 1025 tax, retirement contribution including any contribution to CalPERS, social security, salary or wages, 1026 overtime payment, or workers’ compensation payment which the City may be required to make on 1027 behalf of: (i) Contractor; (ii) any employee of Contractor; or, (iii) any employee of Contractor 1028 construed to be an employee of the City, for work performed under this Agreement. 1029 E. Reserved
1030 F. Reserved
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DRAFT July 2024 28 City of Cupertino/ _____________ Agreement 1031 6.02 INSURANCE
1032 A. Policies
1033 1. Types and Amounts; Deductibles and Self-Insured Retentions. As of the Effective Date, 1034 Contractor will secure and maintain, and enter into agreements to cause its Subcontractors, 1035 if any, to secure and maintain or provide that Subcontractors are insureds under Contractor's 1036 policies, in full force and effect the types and amounts of insurance coverage, together with 1037 related specified deductibles and endorsements, listed in Exhibit C, Insurance, attached 1038 hereto and incorporated herein, or required by Applicable Law, whichever is greater, in form 1039 acceptable to City.
1040 If any third Person makes a claim against Contractor or any Subcontractors exceeding the 1041 amount of any deductibles, self-insured reserves, letters of credit, or bonds guaranteeing 1042 payment thereof, Contractor will promptly Notify the insurer, bond surety, or letter of credit 1043 provider and City thereof.
1044 B. Insurers. Contractor will procure insurance from insurers approved by City Risk Manager, an 1045 approved company in California and authorized to do business there, having not less than size 1046 category VIII and a rating of A or better ("A-VIII") by A.M. Best Company, Inc. 1047 C. Notices to City of Cancellation, etc. General and Auto Liability policies must bear endorsements in 1048 substantially the form provided in Exhibit C providing that coverage will not be canceled or not 1049 renewed, or otherwise materially decreased below the coverage required in Exhibit C except after 1050 prior written Notice, to City thirty (30) Days in advance, or if the reason for cancellation is non1051 payment of premiums, ten (10) Days in advance. Endorsements will contain mere "best effort" 1052 modifiers or relieve the insurer from its responsibility to give City Notice. 1053 D. Evidence of Coverage. As of the Effective Date, Contractor will provide certificates of insurance and 1054 original endorsements required under this Agreement, signed by an authorized representative of 1055 the insurance company. Upon City request, Contractor will provide or cause to be provided to City 1056 documentation acceptable to City verifying that the individual signing those documents are 1057 authorized by the insurer to evidence coverage on the insurer’s behalf. At that time and thereafter 1058 simultaneously with renewal of the policies, Contractor will file with City a certificate of insurance 1059 and blanket-form endorsements, in form and substance satisfactory to City (including type and 1060 amount of coverage, effective dates and expiration dates) signed or counter-signed by an 1061 authorized representative of the insurer(s), evidencing that the coverage has not lapsed and will 1062 remain in effect at all times during the term of the policy. If Contractor fails to procure and maintain 1063 any insurance required under this Agreement, City may take out and maintain that insurance at 1064 Contractor's expense and Contractor will pay costs to City therefore. This remedy is in addition to 1065 City's right to declare an Event of Default and terminate the Agreement. Upon request of City, the 1066 Contractor will cause its Subcontractors (if any) to provide proper evidence of insurance coverage 1067 required under this Agreement, satisfactory to City. Contractor will maintain procedures to assure 1068 City it is monitoring all insurance requirements under this Agreement, including those of its 1069 Subcontractors.
1070 E. Contractor Compliance. Contractor will comply with all requirements of policies and the insurers. 1071 Carrying insurance will not relieve Contractor from any obligations under this Agreement. Nothing 1072 in this Agreement may be construed as limiting in any way the extent to which the Contractor may 273
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DRAFT July 2024 29 City of Cupertino/ _____________ Agreement 1073 be held responsible for payments of damages to Persons or property resulting from Contractor's or 1074 any Subcontractors’ performance of Services.
1075 ARTICLE 7.
1076 DEFAULT BY CONTRACTOR AND TERMINATION
1077 7.01 EVENTS OF DEFAULT
1078 All provisions of the Agreement are considered material. Each of the following shall constitute an event 1079 of default.
1080 A. Fraud or Deceit. Contractor, its Affiliates, or any other Person employed by or with an ownership 1081 interest in Contractor, its Affiliates, or attempts to practice, any fraud or deceit upon the City. 1082 B. Insolvency or Bankruptcy. Contractor becomes insolvent, unable, or unwilling to pay its debts, or upon 1083 entry of an order for relief in favor of Contractor in a bankruptcy proceeding. 1084 C. Failure to Maintain Coverage. Contractor fails to provide or maintain in full force and effect the 1085 Workers' Compensation, liability, or any other insurance coverage as required by this Agreement. 1086 D. Violations of Regulation. Contractor receives any material violation notices, citations, orders or 1087 filings of any regulatory body having authority over Contractor relative to this Agreement that are 1088 not corrected, provided that Contractor may contest any such orders or filings by appropriate 1089 proceedings conducted in good faith, in which case no breach or default of this Agreement shall be 1090 deemed to have occurred.
1091 E. Violations of Applicable Law. Contractor has been found by a court of proper jurisdiction to be in 1092 material violation of Applicable Law (other than criminal law) directly related to the performance 1093 of this Agreement, provided that Contractor may contest any such allegation or finding by 1094 appropriate proceedings conducted in good faith, in which case no breach or default of this 1095 Agreement shall be deemed to have occurred.
1096 F. Failure to Perform Direct Services.
1097 1. General. Contractor fails to Accept Delivered Materials at the Approved Facility(ies) or ceases 1098 to provide Processing Services as required under this Agreement for a period of two (2) 1099 consecutive Working Days or more, for any reason within the control of Contractor. 1100 2. Suspension or Termination of Service. There is any termination or suspension of the 1101 transaction of business by Contractor related to this Agreement lasting more than two (2) 1102 calendar days.
1103 3. Labor Unrest. Pursuant to Section 7.07, Contractor fails to perform services as required under 1104 this Agreement for more than two (2) Working Days due to labor unrest, including but not 1105 limited to strike, work stoppage or slowdown, sickout, picketing, or other concerted job 1106 action conducted by the Contractor’s employees or directed at the Contractor or an Affiliate; 1107 or any labor action initiated by Contractor, including but not limited to a lock-out. 274
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DRAFT July 2024 30 City of Cupertino/ _____________ Agreement 1108 4. Facility Disruption. The Contractor is unable to use any of the Approved or Alternative 1109 Facilities under this Agreement for more than thirty (30) Days in a consecutive twelve (12) 1110 month period.
1111 G. Failure to Use Approved Facilities. Except in emergency, Contractor fails to deliver City Delivered 1112 Materials to the appropriate Approved Processing or Disposal Facility for each material type. 1113 H. Failure to Pay or Report. Contractor fails to make any payments to City required under this 1114 Agreement including payment of City Reimbursements or Liquidated Damages, or Contractor fails 1115 to pay Approved Facility operators as provided under this Agreement, and/or refuses to provide 1116 City with required information, reports, and/or records in a timely manner as provided for in the 1117 Agreement.
1118 I. Acts or Omissions. Any other act or omission by Contractor which violates the terms, conditions, 1119 or requirements of this Agreement, or Applicable Law and which is not corrected or remedied within 1120 the time set in the written notice of the violation or, if Contractor cannot reasonably correct or 1121 remedy the breach or violation within the time set forth in such notice, if Contractor should fail to 1122 commence to correct or remedy such violation within the time set forth in such notice or as agreed 1123 with such regulatory body and diligently effect such correction or remedy thereafter. 1124 J. False, Misleading, or Inaccurate Statements. Any representation or disclosure made to the City by 1125 Contractor in connection with or as an inducement to entering into this Agreement, or any future 1126 amendment to this Agreement, which proves to be false or misleading in any material respect as of 1127 the time such representation or disclosure is made, whether or not any such representation or 1128 disclosure appears as part of this Agreement; and, any Contractor-provided report containing a 1129 material misstatement, misrepresentation, data manipulation, or an omission of fact or content 1130 explicitly defined by the Agreement, excepting non-numerical typographical and grammatical 1131 errors.
1132 K. Seizure or Attachment. There is a seizure of, attachment of, or levy on some or all of Contractor’s 1133 operating equipment, including without limitation its equipment, maintenance, or office facilities, 1134 or Approved Facility(ies), owned/operated by Contractor, by Affiliates, and/or by Subcontractors, 1135 or any part thereof.
1136 L. Criminal Activity. Contractor, its officers, managers, or employees are found guilty of Criminal 1137 Activity related directly or indirectly to performance of this Agreement or any other agreement held 1138 with the City.
1139 M. Assignment without Approval. Contractor transfers or assigns this Agreement without the express 1140 written approval of the City unless the assignment is permitted without City approval pursuant to 1141 Section 8.05.
1142 N. Failure to Perform Any Obligation. Contractor fails to perform any material obligation established 1143 under this Agreement.
1144 City shall provide Contractor written notice of default within seven (7) calendar days of the City’s 1145 first knowledge of the Contractor’s default.
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DRAFT July 2024 31 City of Cupertino/ _____________ Agreement 1146 7.02 RIGHT TO TERMINATE UPON EVENT OF DEFAULT
1147 Contractor shall be given three (3) Business Days from written notification by City to cure any default 1148 which, in the City Representative’s sole opinion, creates a potential public health or safety threat. 1149 Contractor shall be given three (3) Business Days from written notification by City to cure any default 1150 arising under subsections C, E, F.1, F.2, I, J, and K in Section 7.01. 1151 Contractor shall be given thirty (30) calendar days from written notification by City to cure any other 1152 default (which is not required to be cured within three (3) Business Days); provided, however, that the 1153 City shall not be obligated to provide Contractor with a notice and cure opportunity if the Contractor has 1154 committed the same or similar breach/default within a twenty-four (24) month period. 1155 7.03 CITY’S REMEDIES IN THE EVENT OF DEFAULT
1156 Upon Contractor’s default, City has the following remedies:
1157 A. Waiver of Default. City may waive any event of default or may waive Contractor’s requirement to cure 1158 a default event if City determines that such waiver would be in the best interest of the City. City’s 1159 waiver of an event of default is not a waiver of future events of default that may have the same or 1160 similar conditions.
1161 B. Suspension of Contractor’s Obligation. City may suspend Contractor’s performance of its obligations 1162 if Contractor fails to cure default in the time frame specified in Section 7.02 until such time the 1163 Contractor can provide assurance of performance in accordance with Section 7.08. 1164 C. Liquidated Damages. City may assess Liquidated Damages for Contractor’s failure to meet specific 1165 performance standards pursuant to Section 7.06 and Exhibit E. 1166 D. Termination. In the event that Contractor should default, and subject to the right of the Contractor 1167 to cure, in the performance of any provisions of this Agreement, and the default is not cured for 1168 any default within three (3) Business Days if the default creates a potential public health or safety 1169 threat or arises under Section 7.01.C., E, F.1, F.2, I, J, or K, or otherwise thirty (30) calendar days 1170 after receipt of written notice of default from the City, then the City may, at its option, terminate 1171 this Agreement. In the event City decides to terminate this Agreement, the City shall serve upon 1172 Contractor twenty (20) calendar days written notice of its intention to terminate. In the event City 1173 exercises its right to terminate this Agreement, the City may, at its option, upon such termination, 1174 either directly undertake performance of the services or arrange with other Persons to perform the 1175 services with or without a written agreement. This right of termination is in addition to any other 1176 rights of City upon a failure of Contractor to perform its obligations under this Agreement. 1177 Contractor shall not be entitled to any further revenues from Processing operations authorized 1178 hereunder from and after the date of termination.
1179 E. Other Available Remedies. City’s election of one (1) or more remedies described herein shall not 1180 limit the City from any and all other remedies at law and in equity including injunctive relief, etc. 276
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DRAFT July 2024 32 City of Cupertino/ _____________ Agreement 1181 7.04 POSSESSION OF RECORDS UPON TERMINATION
1182 In the event of termination for an event of default, the Contractor shall furnish City Representative with 1183 immediate access to Records related to its services under this Agreement. 1184 7.05 CITY'S REMEDIES CUMULATIVE; SPECIFIC PERFORMANCE 1185 City's rights to terminate the Agreement under Section 7.02 and to access the Contractor's Records under 1186 Section 7.04 are not exclusive, and City's termination of the Agreement and/or the imposition of 1187 Liquidated Damages shall not constitute an election of remedies. Instead, these rights shall be in addition 1188 to any and all other legal and equitable rights and remedies which City may have. 1189 By virtue of the nature of this Agreement, the urgency of timely, continuous, and high-quality service; the 1190 lead time required to effect alternative service; and, the rights granted by City to the Contractor, the 1191 remedy of damages for a breach hereof by Contractor is inadequate and City shall be entitled to injunctive 1192 relief (including but not limited to specific performance). 1193 7.06 PERFORMANCE STANDARDS AND LIQUIDATED DAMAGES
1194 A. General. The Parties find that as of the time of the execution of this Agreement, it is impractical, if 1195 not impossible, to reasonably ascertain the extent of damages incurred by City as a result of a 1196 breach by Contractor of its obligations under this Agreement. The factors relating to the 1197 impracticability of ascertaining damages include, but are not limited to, the fact that: (i) substantial 1198 damage results to members of the public who are denied services or denied quality or reliable 1199 service; (ii) such breaches cause inconvenience, anxiety, frustration, and deprivation of the benefits 1200 of the Agreement to individual members of the general public for whose benefit this Agreement 1201 exists, in subjective ways and in varying degrees of intensity which are incapable of measurement 1202 in precise monetary terms; (iii) that exclusive services might be available at substantially lower costs 1203 than alternative services and the monetary loss resulting from denial of services or denial of quality 1204 or reliable services is impossible to calculate in precise monetary terms; and, (iv) the termination of 1205 this Agreement for such breaches and other remedies are, at best, a means of future correction and 1206 not remedies that make the public whole for past breaches. 1207 B. Service Performance Standards; Liquidated Damages for Failure to Meet Standards. The Parties 1208 further acknowledge that consistent, reliable Processing services are of utmost importance to City 1209 and that City has considered and relied on Contractor's representations as to its quality of service 1210 commitment in awarding the Agreement to it. The Parties recognize that some quantified standards 1211 of performance are necessary and appropriate to ensure consistent and reliable service and 1212 performance. The Parties further recognize that if Contractor fails to achieve the performance 1213 standards or fails to submit required documents in a timely manner, City and its residents and 1214 businesses will suffer damages, and that it is, and will be, impractical and extremely difficult to 1215 ascertain and determine the exact amount of damages that City will suffer. Therefore, without 1216 prejudice to City’s right to treat such non-performance as an event of default under this Section, 1217 the Parties agree that the Liquidated Damages amounts established in Exhibit E of this Agreement 1218 and the Liquidated Damage amounts therein represent a reasonable estimate of the amount of 1219 such damages considering all of the circumstances existing on the Effective Date of this Agreement, 1220 including the relationship of the sums to the range of harm to City that reasonably could be 1221 anticipated and the anticipation that proof of actual damages would be costly or impractical. 277
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DRAFT July 2024 33 City of Cupertino/ _____________ Agreement 1222 Contractor agrees to pay (as Liquidated Damages and not as a penalty) the amounts set forth in 1223 Exhibit E, Performance Standards and Liquidated Damages. 1224 Before assessing Liquidated Damages, City shall give Contractor notice of its intention to do so. The 1225 notice will include a brief description of the incident(s) and non-performance. City may review (and 1226 make copies at its own expense) all information provided by Contractor relating to incident(s) 1227 and/or non-performance. City may, within thirty (30) Business Days after issuing the notice, request 1228 a meeting with Contractor. City may present evidence of non-performance in writing and through 1229 testimony of its employees and others relevant to the incident(s) and non-performance. City 1230 Representative shall provide Contractor with a written explanation of their determination on each 1231 incident(s) and non-performance prior to authorizing the assessment of and non-performance prior 1232 to authorizing the assessment of Liquidated Damages under this Section 7.06. Within ten (10) 1233 Business Days of receipt of such notice of intention to assess Liquidated Damages, or within forty 1234 (40) Business Days if the intended assessment results in a material impact, as defined in Section 1235 8.10, no Liquidated Damages may be imposed on Contractor until Contractor has been given a 1236 reasonable opportunity to respond to allegations and to meet and confer with the City 1237 Representative. The City Representative’s decision shall be final subject to Contractor’s ability to 1238 pursue judicial relief in accordance with Section 8.17. 1239 C. Amount. City may assess Liquidated Damages for each Working Day or event, as appropriate, that 1240 Contractor is determined to be liable in accordance with this Agreement in the amounts specified 1241 in Exhibit E. Liquidated Damages shall be subject to annual adjustment on each July 1 equal to the 1242 Annual Percentage Change in the CPI-U as defined in Article 5. 1243 D. Timing of Payment. Contractor shall pay any Liquidated Damages assessed by City within thirty (30) 1244 Business Days of the date the Liquidated Damages are assessed. If they are not paid within the thirty 1245 (30) Business Day period after written notice to Contractor and a ten (10) day period to cure, City 1246 may proceed against the performance bond required by the Agreement, order the termination of 1247 the rights or granted by this Agreement, or all of the above. 1248 7.07 EXCUSE FROM PERFORMANCE
1249 A. General. Notwithstanding any other provision in this Agreement, each Party shall be excused from 1250 performing its respective obligations hereunder and from any obligation to pay Liquidated Damages 1251 if it is prevented from so performing by reason of floods, earthquakes, other acts of nature, war, 1252 civil insurrection, riots, banking shutdown, supply chain disruption, pandemic, acts of any local, 1253 State, or Federal government (including judicial action), and other similar catastrophic events which 1254 are beyond the control of and not the fault of the Party claiming excuse from performance 1255 hereunder (each a “Force Majeure Event”).
1256 B. Third Party Labor Unrest. Performance is excused to the limited extent that: In the case of labor 1257 unrest or job action directed at a third party over whom Contractor has no control, the inability of 1258 Contractor to provide services in accordance with this Agreement due to the unwillingness or failure 1259 of the third party to: (i) provide reasonable assurance of the safety of Contractor's employees while 1260 providing such services; or, (ii) make reasonable accommodations with respect to point of delivery, 1261 time of Acceptance, or other operating circumstances to minimize any confrontation with pickets 1262 or the number of Persons necessary to perform Transfer, Transport, Processing, or Disposal 1263 services. The foregoing excuse shall be conditioned on Contractor's cooperation in performing 278
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DRAFT July 2024 34 City of Cupertino/ _____________ Agreement 1264 Transfer, Transport, Processing, and/or Disposal services at different times and in different locations 1265 (as provided for in Section 4.12). If the Collection Contractor is unable to use any of the Approved 1266 or Alternative Facilities under this Agreement for more than thirty (30) Days in a consecutive twelve 1267 (12) month period for any reason, including, but not limited to third-party labor unrest, and such 1268 inability prevents Contractor from performing its obligations under this Agreement through the use 1269 of Alternative Facilities as provided for in Section 4.12, such circumstance shall be considered an 1270 event of default in accordance with Section 7.01.F. 1271 C. Contractor Labor Unrest. In the event of labor unrest, including but not limited to strike, work 1272 stoppage or slowdown, sickout, picketing, or other concerted job action conducted by the 1273 Contractor’s employees or directed at the Contractor or an Affiliate, the Contractor shall not be 1274 excused from performance and such event shall not be considered a Force Majeure event under 1275 this Section. Contractor may direct Delivered Materials to an Alternative Facility as provided in 1276 Section 4.12. In such case, Contractor shall continue to provide consistent, reliable, and 1277 uninterrupted levels of performance during the pendency thereof. Any labor action initiated by 1278 Contractor, including but not limited to a lock-out, shall not be grounds for any excuse from 1279 performance and Contractor shall perform all obligations under this Agreement during the 1280 pendency of such Contractor-initiated labor action. In the event that any labor unrest related to 1281 Contractor’s operations or facility(ies) causes those facilities to be partially or completely 1282 inaccessible by the Collection Contractor and thereby creates increased costs for the City and/or 1283 Collection Contractor related to delivery to Alternative Facilities, Contractor shall be liable for any 1284 and all such reasonable costs. In the event of such increased costs, City shall make a determination 1285 of the allowable costs under the Collection Agreement with the City as well as any direct costs 1286 incurred by the City during the pendency of such disruption. Contractor shall pay to City or, at City’s 1287 direction, Collection Contractor the amount of such increased reasonable costs as determined by 1288 the City within forty-five (45) calendar days of receiving the City’s determination. 1289 D. Notice. The Party claiming excuse from performance shall, within two (2) business days after such 1290 Party has notice of such cause, give the other Party notice of the facts constituting such cause and 1291 asserting its claim to excuse under this Section. If either Party validly exercises its rights under this 1292 Section, the Parties hereby waive any claim against each other for any damages sustained thereby. 1293 E. Default and Termination. The partial or complete interruption or discontinuance of Contractor's 1294 services caused by one (1) or more Force Majeure Events shall not constitute a default by Contractor 1295 under this Agreement, except as otherwise specified in Section 7.01.F.4. Notwithstanding the 1296 foregoing, however, if Contractor is excused from performing its obligations hereunder for any of 1297 the causes listed in this Section for a period of thirty (30) calendar days or more, City shall 1298 nevertheless have the right, in its sole discretion, to terminate this Agreement by giving ten (10) 1299 Business Days’ notice to Contractor provided Contractor does not fully resume performance of its 1300 obligations hereunder within such ten (10) Business Days, in which case the provisions of Section 1301 7.04 shall apply.
1302 7.08 RIGHT TO DEMAND ASSURANCES OF PERFORMANCE
1303 The Parties acknowledge that it is of the utmost importance to City and the health and safety of all those 1304 members of the public residing or doing business within City who will be adversely affected by interrupted 1305 waste management service, that there be no material interruption in services provided under this 1306 Agreement.
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DRAFT July 2024 35 City of Cupertino/ _____________ Agreement 1307 If Contractor: (i) is the subject of any labor unrest including work stoppage or slowdown, sick-out, 1308 picketing, or other concerted job action; (ii) appears in the reasonable judgment of City to be unable to 1309 regularly pay its bills as they become due; or, (iii) is the subject of a civil or criminal judgment or order 1310 entered by a Federal, State, regional, or local agency for violation of an Applicable Law, and City believes 1311 in good faith that Contractor's ability to perform under the Agreement has thereby been placed in 1312 substantial jeopardy, City may, at its sole option and in addition to all other remedies it may have, demand 1313 from Contractor reasonable assurances of timely and proper performance of this Agreement, in such form 1314 and substance as City believes in good faith is reasonably necessary in the circumstances to evidence 1315 continued ability to perform under the Agreement. If Contractor fails or refuses to provide satisfactory 1316 assurances of timely and proper performance in the form and by the date required by City, such failure or 1317 refusal shall be an event of default for purposes of Section 7.01. 1318 7.09 COOPERATION AND DISPUTES BETWEEN CONTRACTORS
1319 Contractor shall fully comply with its obligations to provide services under this Agreement including 1320 Acceptance of Delivered Materials by the Collection Contractor in a manner that meets the requirements 1321 of this Agreement and Applicable Law. Collection Contractor shall also fully comply with its obligations to 1322 deliver Delivered Materials to the approved Facility(ies). In the event of disputes between the Collection 1323 Contractor and the Contractor, either party may provide written notice of the dispute to the City and any 1324 other party involved in the dispute. If Contractor initiates a written notice of dispute, such notice shall 1325 include a summary of the dispute, the section(s) of the Agreement or agreements the asserted dispute 1326 arises from, an estimate of the financial implications to Contractor asserted, and a proposed resolution. 1327 Contactor agrees to timely meet and confer directly with the Collection Contractor or Approved 1328 Facility(ies) in good faith to resolve the dispute for thirty (30) calendar days following the initial notice to 1329 the City and the other involved party. A longer period may be established if mutually agreed upon 1330 between the parties. If at the end of the thirty (30) day period, Contractor and the Collection Contractor 1331 or Contractor and Approved Facility(ies) have met and conferred in good faith but have not resolved the 1332 dispute, either party to the dispute may notify the City and the City shall facilitate the dispute resolution 1333 procedure in accordance with Section 8.17 as well as any applicable provisions of the involved party’s 1334 contract with the City. In the event of a dispute, Contractor shall continue performance of Contractor’s 1335 obligations under this Agreement and shall attempt to continue to resolve that dispute in a cooperative 1336 manner, including but not limited to negotiating in good faith. 1337 7.10 ACTS NECESSARY TO PERFORM SERVICE
1338 The City’s failure to specifically require an act necessary to perform any of the services required under 1339 this Agreement and comply with Appliable Law does not relieve Contractor of its obligation to perform 1340 such act, or the service(s) dependent on such act, or to comply with Applicable Law at all times throughout 1341 the Term of this Agreement. Further, any suggestions or recommendations, whether verbal or in writing, 1342 made by the City to Contractor shall not be relied upon by Contractor to the extent such suggestions or 1343 recommendations may compromise or inhibit Contractor’s performance under this Agreement or ability 1344 to comply with Applicable Law. Contractor assumes liability and responsibility for actions and inactions to 1345 perform services under this Agreement in accordance with Applicable Law and expressly waives any claims 1346 against the City or use of City’s actions or inactions as a legal defense for Contractor’s failure to perform 1347 or comply with Applicable Law in the performance of this Agreement except with respect to Excluded 1348 Waste.
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DRAFT July 2024 36 City of Cupertino/ _____________ Agreement 1349 In the event of any ambiguity as to the interpretation of the Agreement or the requirements of Contractor 1350 under this Agreement, Contractor shall be responsible for seeking clarity and approval from the City prior 1351 to engaging in actions to resolve ambiguities not otherwise explicitly stated in the Agreement. To the 1352 extent that the Contractor engages or fails to engage in performing an act in violation of this Agreement 1353 or Applicable Law and fails to obtain explicit written permission from the City in advance, the Contractor 1354 shall be solely liable and the City shall not be responsible for any payment, compensation adjustments, or 1355 administrative support arising from Contractor’s actions or inactions. To the extent the Contractor’s non1356 compliance results in increased costs to the City, City shall notify the Contractor, identifying the dollar 1357 value of such cost impacts, and Contractor shall, within forty-five (45) calendar days of written notice from 1358 the City, remit such costs to the City in the form of a direct payment sent or delivered to the City or paid 1359 to the City via an electronic payment method. The City retains the right to pursue any remedies specified 1360 in this Article in the event of non-compliance, at the City Representative’s sole discretion. 1361 ARTICLE 8.
1362 OTHER AGREEMENTS OF THE PARTIES
1363 8.01 RELATIONSHIP OF PARTIES
1364 The Parties intend that Contractor will perform the Services required by this Agreement as an 1365 independent contractor engaged by City and not as an officer or employee of City nor as a partner of or 1366 joint venturer with City. No employee or agent of Contractor will be or will be deemed to be an employee 1367 or agent of City. Contractor will have the exclusive control over the manner and means of conducting 1368 Services, and all Persons performing those Services, except for City’s right to change the scope of Services 1369 in accordance with Section 4.20. Contractor is solely responsible for the acts and omissions of its officers, 1370 employees, Subcontractors, and agents, none of whom is deemed an officer, employee, Subcontractor, 1371 or agent of City. Neither Contractor nor its officers, employees, Subcontractors, and agents will obtain any 1372 rights to retirement benefits, workers' compensation benefits, or any other benefits that accrue to City 1373 employees, and Contractor expressly waives any claim it may have or acquire to those benefits. 1374 8.02 COMPLIANCE WITH LAW
1375 A. Compliance. Contractor will perform, and will cause any contractors or Subcontractors to perform, 1376 all Services in accordance and compliance with Applicable Law, whether or not referenced 1377 specifically in the text of this Agreement and regardless of whether specified Service obligations 1378 may be stated less stringently than Applicable Law. If any provision of this Agreement is more 1379 stringent than Applicable Law, Contractor must comply with that provision. 1380 The Contractor acknowledges that City, by this Agreement, has stated necessary and reasonable 1381 rules and regulations regarding aspects of Solid Waste handling Services covered by this Agreement. 1382 Contractor agrees to comply with any and all of those rules and regulations, subject to the definition 1383 of "Uncontrollable Circumstances" in Section 8.12 and subject to possible adjustments in the Per1384 Ton Rates for Uncontrollable Circumstances, including Changes in Law. 1385 B. Referenced Provisions. Reference in this Agreement, including Exhibit A, to particular provisions or 1386 requirements of Applicable Law will not be construed to limit Contractor's obligation to comply with 1387 all provisions of Applicable Law. Those references are deemed to include reference to implementing 1388 rules and regulations. The references are intended to facilitate Contractor’s satisfaction of its 281
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DRAFT July 2024 37 City of Cupertino/ _____________ Agreement 1389 performance obligations and City’s administration and specific enforcement of this Agreement, and 1390 may not be construed to imply lack of obligation to comply with other provisions or requirements 1391 of Applicable Law not referred to or cited in this Agreement. If any Applicable Law specifically 1392 referenced or cited in this Agreement is modified, amended, or repealed, that reference or citation 1393 will be deemed to refer to that amendment or modification, or to any re-codified or substituted 1394 Applicable Law.
1395 C. Permits. Contractor will obtain and maintain all Permits in accordance with Section 4.02. 1396 D. Fines and Penalties. Contractor is solely responsible for timely payment of any and all fines and 1397 penalties imposed on Contractor related directly or indirectly to the Services provided under the 1398 Agreement. Contractor will not seek reimbursement from City, Collection Contractor, residents, or 1399 businesses for any such fines and penalties except if due to Excluded Waste delivered by City or 1400 Collection Contractor.
1401 8.03 GOVERNING LAW AND VENUE
1402 This Agreement will be governed by, construed and enforced in accordance with the laws of the State of 1403 California, without giving effect to the State’s conflict of laws rules. Venue will be in the Santa Clara County 1404 Superior Court, and no other place. Contractor waives any right it may have pursuant to Code of Civil 1405 Procedure section 394, to file a motion to transfer any action arising from or relating to this Agreement 1406 to a venue outside of the County.
1407
1408 8.04 FURTHER ASSURANCES
1409 Contractor will promptly execute and deliver any instruments and perform any acts as may be necessary 1410 or reasonably requested by the other in order to give full effect to this Agreement. 1411 8.05 ASSIGNMENT
1412 A. Assignment by Contractor.
1413 1. Permitted Assignments. Subject to the terms and conditions of this Section 8.05, Contractor 1414 shall have the right to Assign this Agreement to any other company that is owned and 1415 controlled by Zanker Road Resource Management, LLC or its Affiliates, provided that such 1416 company is qualified to do business in California, and assumes in writing all of Contractor’s 1417 obligations under this Agreement prior to or concurrently with such Assignment. Contractor 1418 shall not otherwise Assign its rights nor delegate or otherwise transfer its obligations under 1419 this Agreement to any other Person.
1420 2. Assignment Defined. For the purpose of this Section when used in reference to Contractor, 1421 “Assign” and “Assignment” shall be as defined in Exhibit A. 1422 Contractor acknowledges that this Agreement involves rendering a vital service to City’s 1423 residents and businesses, and that City has selected Contractor to perform the Services 1424 specified herein based on (i) effective and responsible fashion, at all times in keeping with 1425 applicable Environmental Laws, regulations, and best management practices, and (ii) 1426 Contractor’s obligations to City under this Agreement. The City has relied on each of these 282
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DRAFT July 2024 38 City of Cupertino/ _____________ Agreement 1427 factors, among others, in choosing Contractor to perform the Services to be rendered by 1428 Contractor under this Agreement.
1429 3. Contractor Request for Assignment. If Contractor requests City’s consideration of and consent 1430 to an Assignment, City may reasonably deny or approve such requests except as to Section 1431 8.05.A.1., which shall be approved. No request by Contractor for consent to any Assignment 1432 need be considered by City unless and until Contractor has met the following requirements:
1433 a. Contractor shall undertake to pay City its reasonable expenses for attorney’s fees and 1434 investigation costs necessary to investigate the suitability of any proposed assignee, 1435 and to review and finalize any documentation required as a condition for approving any 1436 such Assignment.
1437 b. Contractor shall furnish City with audited financial statements of the proposed 1438 assignee’s operations for the immediately preceding three (3) operating years. 1439 c. Contractor shall furnish City with satisfactory proof: (i) that the proposed assignee has 1440 at least ten (10) years of Solid Waste management experience on a scale equal to or 1441 exceeding the scale of operations conducted by Contractor under this Agreement; (ii) 1442 that in the last five (5) years, the proposed assignee has not suffered any significant 1443 citations or other censure from any federal, State, or local agency having jurisdiction 1444 over its Solid Waste management operations due to any significant failure to comply 1445 with State, federal, or local Environmental Laws and that the assignee has provided City 1446 with a complete list of such citations and censures; (iii) that the proposed assignee has 1447 at all times conducted its operations in an environmentally safe and conscientious 1448 fashion; (iv) that the proposed assignee conducts its Solid Waste management practices 1449 in accordance with sound Solid Waste management practices in full compliance with all 1450 federal, State, and local laws regulating the collection and Disposal of Solid Waste 1451 including Unpermitted Waste; and, (v) of any other information required by City to 1452 ensure the proposed assignee can fulfill the terms of this Agreement in a timely, safe, 1453 and effective manner.
1454 d. Under no circumstances shall City be obligated to consider any proposed Assignment 1455 by City if Contractor is in default at any time during the period of consideration. 1456 8.06 BINDING ON SUCCESSORS
1457 The provisions of this Agreement will inure to the benefit of and be binding on the successors and 1458 permitted assigns of the Parties.
1459 8.07 PARTIES IN INTEREST
1460 Nothing in this Agreement, whether expressed or implied, is intended to confer any rights on any Persons 1461 other than the Parties to it and their representatives, successors, and permitted assigns. There are no 1462 intended third-party beneficiaries.
1463 8.08 SERVICES PERFORMED AT CONTRACTOR’S SOLE EXPENSE 1464 Contractor will perform Services solely for the Contractor Compensation expressly provided for herein. 283
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DRAFT July 2024 39 City of Cupertino/ _____________ Agreement 1465 8.09 NOTICES AND COMMUNICATION
1466 All Notices, requests, and approvals must be sent in writing to the Persons below, which will be considered 1467 effective on: the date of personal delivery; the date of delivery confirmed by a reputable overnight delivery service; the fifth (5th 1468 ) Day after deposit in the United States Mail, postage prepaid, registered or 1469 certified; or the next Working Day following electronic submission: If to City:
1470 City of Cupertino
1471 Attention: City Manager
1472 10300 Torre Avenue
1473 Cupertino, California, 95014
1474
1475 CC: Director of Public Works
1476
1477 If to Contractor:
1478 Zanker Road Resource Management, LLC
1479 Attention: CEO and General Counsel
1480 610 E. Gish Rd.
1481 San Jose, CA 95112
1482
1483 Parties may change their address upon Notice to the other Party. 1484 8.10 REPRESENTATIVES OF THE PARTIES
1485 References in this Agreement to “City” shall mean the City of Cupertino and all actions to be taken by the 1486 City except as provided below. City may delegate, in writing, authority to the City Representative and/or 1487 to other City officials and may permit such officials, in turn, to delegate in writing some or all of such 1488 authority to subordinate officers. Contractor may rely upon actions taken by such delegates if they are 1489 within the scope of the authority properly delegated to them. 1490 Contractor shall, by the Effective Date, designate in writing the Contractor’s Contract Manager. The 1491 Contractor’s Contract Manager shall be the representative of Contractor in all matters related to the 1492 Agreement and Contractor shall inform the City in writing of such designation and of any limitations upon 1493 their authority to bind Contractor. The City may rely upon action taken by Contractor’s Contract Manager 1494 as actions of Contractor unless they are outside the scope of the authority delegated to them by 1495 Contractor as communicated to the City.
1496 In the event of dispute between the City Representative and the Contractor regarding the interpretation 1497 of or the performance of services under this Agreement, the City Representative’s determination shall be 1498 conclusive except where such determination results in a material impact to the Contractor’s revenue 1499 and/or cost of operations. In the event of a dispute between the City Representative and the Contractor 1500 results in such material impact to the Contractor, the provisions of Section 8.17 shall apply. For the 1501 purposes of this Section 8.10, “material impact” is an amount equal to or greater than fifty thousand 1502 dollars ($50,000) per year.
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DRAFT July 2024 40 City of Cupertino/ _____________ Agreement 1503 8.11 DUTY OF CONTRACTOR NOT TO DISCRIMINATE
1504 In the performance of all work and Services under this Agreement, Contractor will not discriminate against 1505 any Person on the basis of that Person's race, color, religion (including religious dress and grooming 1506 practices), sex/gender (including pregnancy, childbirth, breastfeeding, or related medical conditions), sex 1507 stereotype, gender identity/gender expression/transgender (including whether or not the Person is 1508 transitioning or has transitioned), sexual orientation, national origin, ancestry, age (40 and above), 1509 physical or mental disability, medical condition, genetic information/characteristics, marital 1510 status/registered domestic partner status, military or veteran status, or any other basis protected by 1511 federal, State, or local law or ordinance or regulation. Contractor will not discriminate based on the 1512 perception that anyone has any of these characteristics or is associated with a Person who has or is 1513 perceived as having any of these characteristics. Contractor will comply with all Applicable Law regarding 1514 nondiscrimination, including those prohibiting discrimination in employment. 1515 8.12 FORCE MAJEURE
1516 A. Performance Excused. Neither Party is deemed in breach or default of its duties, obligations (other 1517 than a payment obligation at the time due and owing), responsibilities, or commitments under this 1518 Agreement to the extent that the breach or default is due to an Uncontrollable Circumstance, 1519 provided the Party exerted Reasonable Business Efforts to prevent the occurrence and mitigate the 1520 effects of the Uncontrollable Circumstance.
1521 1. Uncontrollable Circumstance(s) means any act, event, or condition, whether affecting (i) 1522 Services or (ii) either Party, that is beyond the reasonable control of the Party relying thereon 1523 and not the result of willful or negligent action or inaction of that Party (other than the 1524 contesting in good faith or the failure in good faith to contest that action or inaction), which 1525 materially and adversely affects the ability of either Party to perform any obligation under 1526 this Agreement, comprised of:
1527 a. an act of nature, including landslide, lightning, earthquake, fire, flood, (other than 1528 reasonably anticipated weather conditions for the geographic area of City), explosion, 1529 banking shutdown, supply chain disruption, pandemic, sabotage, terrorism, acts of a 1530 public enemy, war, blockade or insurrection, riot, or civil disturbance. 1531 b. the failure of any appropriate federal, State, or local public agency, or private utility having 1532 operational jurisdiction in the area in which the Facility is located to provide and 1533 maintain utilities, services, water, sewer, or power transmission lines thereto. 1534 c. a Change in Law other than a Change in Law excluded in item 2 below. 1535 d. strikes, work stoppages, or other labor disputes or disturbances of Persons other than 1536 Contractor or any Affiliates performing Services.
1537 2. Uncontrollable Circumstances excludes, without limitation:
1538 a. either Party's own breach of its obligations under this Agreement. 1539 b. adverse changes in the financial condition of either Party or any Change in Law with respect 1540 to any taxes based on or measured by net income, or any unincorporated business, 1541 payroll, franchise, or employment taxes.
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DRAFT July 2024 41 City of Cupertino/ _____________ Agreement 1542 c. strikes, work stoppages, or other labor disputes or disturbances of Contractor or any 1543 Affiliates performing Services, or Contractor’s or Affiliates’ inability to hire adequate 1544 numbers of personnel who are competent and skilled in the work to which they are 1545 assigned, or the organization of any Contractor’s or any Affiliates’ employees under a 1546 collective bargaining agreement.
1547 d. the failure of the Contractor to secure patents, licenses, trademarks, and the like necessary 1548 for Services.
1549 e. as to the Contractor, the failure of any Service assets to perform in accordance with any 1550 warranties, unless caused by Uncontrollable Circumstances or defect. 1551 f. Changes in Law mandated by State or federal Applicable Law. 1552 B. Notice. The Party experiencing an Uncontrollable Circumstance and relying thereon will give Notice 1553 thereof as soon as is reasonable given the Uncontrollable Circumstance to the other Party, including 1554 describing performance under this Agreement for which it seeks to be excused; the expected 1555 duration of the Uncontrollable Circumstance; the extent Services may be curtailed; any requests or 1556 suggestions to mitigate the adverse effects of the Uncontrollable Circumstance; or, any consequent 1557 adjustment of the Per-Ton Rates in accordance with Sections 5.03 or 5.04. 1558 C. City’s Rights. Notwithstanding that Contractor’s failure to timely and fully provide Services due to 1559 Uncontrollable Circumstances does not constitute an Event of Default, following the continuance 1560 of the failure for twenty (24) hours, City may, in its sole discretion, secure alternative services. 1561 Following the continuance of that failure for thirty (30) Days unless an alternative is agreed, City 1562 may terminate the Agreement in accordance with Section 7.02. 1563 D. Use of Alternative Facility. Contractor shall use an alternative facility in accordance with Section 1564 4.12 if Uncontrollable Circumstances prevent it from using the Facility for all or a portion of City’s 1565 Solid Waste. If, as a result of Uncontrollable Circumstances, the Collection Contractor is unable to 1566 deliver all City’s Solid Waste at the Facility for one (1) month or more or if City has incurred ten 1567 thousand dollars ($10,000) or more in additional Transportation costs to arrange for delivery of 1568 City’s Solid Waste to an alternative facility, City may, in its sole discretion, suspend or terminate the 1569 Agreement in accordance with Section 7.02, but is not obligated to do so. 1570 8.13 MAINTENANCE OF RECORDS
1571 A. Location of Records. Contractor will maintain Records at the Facility, or at an alternative location 1572 as approved by City.
1573 B. Contractor’s Accounting Records. In order to effectuate the adjustments to the Per-Ton Rates 1574 contemplated by Sections 5.03 and 5.04, Contractor must maintain accurate, detailed financial and 1575 operational information in a consistent format and to make that information available to City in a 1576 timely fashion. This Section is intended to effectuate these requirements. Contractor will maintain 1577 accurate and complete accounting Records containing the underlying financial and operating data 1578 relating to and showing the basis for computation of all costs associated with providing Services. 1579 The accounting Records will be prepared in accordance with Generally Accepted Accounting 1580 Principles (GAAP), which will be consistently applied. The Parties acknowledge that the Contractor’s 286
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DRAFT July 2024 42 City of Cupertino/ _____________ Agreement 1581 accounting procedures may not produce accounting Records that separate the financial and 1582 operational data related to specific Services provided to City, but rather the accounting Records are 1583 consolidated financial and operational data for all Services provided by Contractor or at Contractor’s 1584 Facility.
1585 C. Retention of Records. Contractor will retain all Records required to be maintained by this 1586 Agreement for a minimum of five (5) years following the end of the Term. 1587 Contractor will retrieve Records specifically directed to be retained in accordance with this 1588 Agreement and make them available to City within ten (10) Days of City’s direction. 1589 Contractor will retrieve Records that are material, in the sole opinion of City, to determining the 1590 cost of compliance with changes in Government Fees or regulations; verifying payment of 1591 Government Fees or taxes; determining cost impact related to modifications to scope of Services or 1592 new waste management programs or economic incentives; or determining an adjustment to the 1593 Per-Ton Rate as provided for in this Agreement, and make them available to City within ten (10) 1594 Days of City’s direction. If Contractor is not required to maintain those Records under this 1595 Agreement, then City and Contractor will meet and confer in good faith to reach agreement on 1596 reasonable assumptions that are necessary to make determinations at issue. 1597 D. Delivery of Financial Information. The Parties agree that Contractor shall submit financial 1598 information that provides sufficient information, in City’s opinion, for performance of the review 1599 necessary for determination as to whether an extraordinary adjustment to the Per-Ton Rate(s) is 1600 warranted as provided in Section 5.04.
1601 8.14 RIGHT TO INSPECT RECORDS
1602 Upon reasonable Notice and without interference with Contractor’s operations, City, its auditors, and 1603 other agents selected by City, will have the right, at its sole cost, during regular business hours as described 1604 in Section 4.06, to conduct on-site inspections of Records and to make and retain copies of any Records 1605 that are reasonably necessary to: (1) determine the cost of compliance with changes in Government Fees 1606 or regulations (in accordance with Section 5.03); (2) verify payment of Government Fees or taxes (in 1607 accordance with Sections 5.05 and 5.06); (3) determine cost of modifications to scope of Services (in 1608 accordance with Section 4.20); (4) determine cost of new programs or economic incentives (in accordance 1609 with Section 4.20); or, (5) verify Contractor’s reported aggregate Facility capacity commitments (in 1610 accordance with Section 4.14.C). Contractor will cooperate with City, its auditors, and other agents 1611 selected by City; will make those Records available to City; and, will provide City copies of those Records 1612 (which City may retain) at City’s request (with the exception that Contractor is not obligated to provide 1613 copies of agreements with entities related to the review of the aggregate Facility capacity under Item 5 of 1614 this Section). If City so requests, Contractor will make specified personnel available to assist City 1615 Representatives in accessing Records.
1616 8.15 COMPILATION OF INFORMATION FOR STATE LAW PURPOSES 1617 Contractor will compile information on amounts of Solid Waste delivered to the Facility and Disposed and 1618 other information, which City may reasonably request in order to meet its obligations under the Act and 1619 other State regulations.
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DRAFT July 2024 43 City of Cupertino/ _____________ Agreement 1620 8.16 RIGHT TO DEMAND ASSURANCES OF PERFORMANCE
1621 A. If Contractor:
1622 1. is the subject of any labor unrest including work stoppage or slowdown, sick-out, picketing, 1623 or other concerted job action that affects Contractor’s performance under this Agreement. 1624 2. appears in the judgment of City to be unable to regularly pay its bills as they become due. 1625 3. is the subject of a civil or criminal proceeding brought by a federal, State, regional, or local 1626 agency for Violation of an Applicable Law with respect to Services. 1627 4. is, in the City’s reasonable opinion, in substantial jeopardy of non-performance under this 1628 agreement, or
1629 5. if City disagrees with Contractor’s estimate of Facility capacity required to meet Contractor’s 1630 warranty in accordance with Section 9.01 or of remaining capacity, considering Contractor’s 1631 obligations to both City and other Persons, as contained in the Annual Report or otherwise, 1632 then following dispute resolution in accordance with Section 8.17 that concludes either of 1633 Contractor’s estimates is erroneous, at its option and in addition to all other remedies it may 1634 have, City may demand from Contractor written assurances of timely and proper 1635 performance of this Agreement. Assurances include procuring a bond or letter of credit 1636 guarantying or in size sufficient to cover payment of losses and related investigations, claim 1637 administration, and defense expenses. If Contractor fails or refuses to provide reasonable 1638 assurances by the date required by City no less than fifteen (15) Days after Notice, that failure 1639 or refusal will constitute an Event of Default in accordance with Section 7.01. 1640 8.17 DISPUTE RESOLUTION
1641 In the event of dispute between the City and the Contractor regarding the interpretation of or the 1642 performance of services under this Agreement which results in a material impact to the Contractor’s 1643 revenue and/or cost of operations, as defined in Section 8.10, the provisions of this Section 8.17 shall 1644 apply. The representatives of the Parties who have primary responsibility for operation and administration 1645 of this Agreement will engage in best efforts to resolve the dispute informally. If the Parties are unable to 1646 resolve a dispute informally, the Party seeking redress may submit an informal written claim to the City, 1647 specifying the nature of the claim, the applicable provisions of the Agreement, a summary narrative of 1648 the events leading to the claim, and the remedy sought to resolve the claim. Within 30 days thereafter, 1649 the City Representative will arrange to meet and confer in person or by videoconference with Contractor’s 1650 General Counsel and COO, in a further attempt to informally resolve the claim. If, within 30 days following 1651 the initial attempt to meet and confer, the claim is not resolved, the Parties agree to submit the dispute 1652 to mediation with an experienced third-party neutral in an effort to resolve the claim by compromise, 1653 with each Party to share equally in the mediator’s fees and each Party to bear its own legal fees, if any. 1654 City and Contractor will mutually agree to a mediator. Mediation will be scheduled to ensure the mutual 1655 availability of the selected mediator and all of the individuals that each Party requires to represent its 1656 interests. The Mediation shall be completed within sixty (60) days of the written requests of a Party unless 1657 both Parties agree to extend the timeframe. To the maximum extent permitted by law, all offers, 1658 promises, conduct, and statements, whether oral or written, made in the course of the mediation by any 1659 of the Parties, their agents, employees, experts, or attorneys, or by the mediator or any employees of the 1660 mediation services, are confidential, privileged, and inadmissible for any purpose, including impeachment, 288
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DRAFT July 2024 44 City of Cupertino/ _____________ Agreement 1661 in any arbitration or other proceeding involving the Parties, provided that evidence that is otherwise 1662 admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in 1663 the mediation. All applicable statutes of limitation and defenses based upon the passage of time shall be 1664 tolled until the end of the sixty (60) Day period referred to above. The Parties will take such action, if any 1665 required to effectuate such tolling. Good faith compliance with the informal dispute resolution provisions 1666 set forth in this Section is a condition precedent to filing a claim pursuant to the California Government 1667 Code or to otherwise initiating legal proceedings with regard to the dispute. The provisions of this Section 1668 will survive expiration or termination of the Agreement. 1669 8.18 CRIMINAL ACTIVITY OF CONTRACTOR
1670 A. Notice of Convictions or Pleas. The Contractor will immediately Notify City upon the occurrence of 1671 any Convictions or Pleas with respect to Contractor or Contractor’s Contract Manager. 1672 B. Contractor Cure. Upon the occurrence of any Convictions or Pleas, the Contractor will :
1673 1. as soon as permitted under Applicable Law, remove from office the offending Contract 1674 Manager who is an individual, or, with respect to a Contract Manager that is the Contractor 1675 or an Affiliate, the individual or individuals responsible for the Criminal Activity. 1676 2. immediately eliminate the participation by that Contract Manager who is an individual or, 1677 with respect to a Contract Manager that is the Contractor or Affiliate the individual or 1678 individuals responsible for the Criminal Activity, in any position of influence related to the 1679 Services.
1680 3. replace the offending Contract Manager in their capacity as Contract Manager relative to this 1681 Agreement.
1682 4. not hire or transfer from any Affiliate any employee, officer, or director of an Affiliate who is 1683 the subject of any Criminal Activity to a position as Contract Manager and will not allow its 1684 Affiliates to do so.
1685 C. City Remedies. The City, in its sole discretion, may terminate the Agreement upon thirty (30) Days’ 1686 Notice to the Contractor, or may impose those other sanctions (which may include financial 1687 sanctions, temporary suspensions, or any other condition deemed appropriate short of 1688 termination) as it will deem proper, if the following events are continuing at the end of those thirty 1689 (30) Days:
1690 1. the Contractor or any Affiliate fails to comply with their obligation under subsection B. 1691 2. the Criminal Activity concerns and is related to this Agreement. 1692 Contractor must be given the opportunity to present to City Representative evidence in mitigation 1693 during the preceding thirty (30) Day Notice period and City will consider that evidence. 289
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DRAFT July 2024 45 City of Cupertino/ _____________ Agreement 1694 8.19 COOPERATION AND DISPUTES BETWEEN CONTRACTOR AND COLLECTION 1695 CONTRACTOR
1696 Contractor will fully comply with its obligations to provide Service to the Collection Contractor and 1697 cooperate to its fullest extent with the Collection Contractor and City. In the event of disputes between 1698 Contractor and Collection Contractor, Contractor will attempt to resolve the dispute directly with the 1699 Collection Contractor. As a last resort, Contractor may request assistance from City in resolving the 1700 dispute. In the event of a dispute, Contractor will continue performance of Contractor’s obligations under 1701 this Agreement and will attempt to continue to resolve that dispute in a cooperative manner, including, 1702 but not limited to, negotiating in good faith.
1703 ARTICLE 9.
1704 REPRESENTATIONS AND WARRANTIES
1705 9.01 MADE BY CONTRACTOR
1706 By acceptance of this Agreement, Contractor represents and warrants that:
1707 A. Existence and Powers. Contractor is a limited liability company duly organized in Delaware and 1708 validly existing, and in good standing under the laws of the State of California, is qualified to transact 1709 business in the State and has full legal right, power, and authority to enter into and perform its 1710 obligations under this Agreement.
1711 B. Due Authorization and Binding Obligation. Contractor has the authority to enter into and perform 1712 its obligations under this Agreement. Contractor has taken all actions required by law or otherwise 1713 necessary to authorize the execution of this Agreement. The Person(s) signing this Agreement on 1714 behalf of Contractor have authority to do so, and this Agreement constitutes the legal, valid, and 1715 binding obligation of Contractor enforceable against Contractor under its terms. 1716 C. Truth and Accuracy of Information. The information supplied by Contractor in all written submittals 1717 made in connection with Contractor’s Services, including Contractor’s Proposal and any other 1718 supplementary information submitted to the City, and which the City has relied on in awarding and 1719 entering this Agreement, is true, accurate, and complete, and does not contain material omissions 1720 or misleading statements. Contractor will inform the City Representative of any change in that 1721 information within one (1) week of discovering any untruth or inaccuracy. 1722 D. Contractor’s Due Diligence. Contractor has made an independent investigation and examination 1723 (satisfactory to it) of the conditions and circumstances surrounding the Agreement and the work to 1724 be performed hereunder. Relying solely upon its own investigation, advice, and counsel, Contractor 1725 has taken such matters into consideration in entering this Agreement to provide Services in 1726 exchange for the Per-Ton Rates provided for under the terms of this Agreement. 1727 E. Ability to Perform. Contractor possesses the business, professional, and technical expertise to 1728 Process, and Divert Delivered Materials, and Contractor possesses the equipment, facilities, and 1729 employee resources required to perform its obligations under this Agreement. 1730 F. Voluntary Use of Facilities. Contractor, without constraint and as a free-market business decision 1731 in accepting this Agreement, agrees to use the Facility(ies) it has proposed, or other location 290
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DRAFT July 2024 46 City of Cupertino/ _____________ Agreement 1732 approved by City, for the purposes of Processing, and Divert all Delivered Materials and for Disposal 1733 of Residue. Such decision by Contractor in no way constitutes a restraint of trade notwithstanding 1734 any Change in Law regarding flow control limitations or any definition thereof. 1735 G. No Warranty Regarding Volumes or Material Types. Contractor recognizes that City expressly 1736 disclaims any warranties, either express or implied, as to the quantity, composition, volume, type, 1737 merchantability or fitness for any particular purpose of Delivered Materials as delivered and 1738 Accepted, and Processed by Contractor. Contractor acknowledges that the quantity and 1739 composition of Delivered Materials will vary over the Term. 1740 H. Capacity. Contractor warrants that as of the Commencement Date it has Processing capacity at the 1741 Facility(ies) to Process all Delivered Materials delivered to the Facility(ies). Contractor shall maintain 1742 such capacity throughout the Term.
1743 I. Permits and Approvals. Contractor warrants that all licenses, Permits, qualifications, and approvals 1744 that are legally required or otherwise necessary for Contractor to perform its obligations under this 1745 Agreement shall be secured on or before the Commencement Date of this Agreement. Contractor 1746 further warrants that it shall, at its sole cost and expense, keep in effect or obtain at all times during 1747 the Term all licenses, Permits, and approvals that are legally required for Contractor to perform its 1748 obligations under this Agreement.
1749 J. Covenant Not to Sue. For the Term of this Agreement, Contractor agrees that neither Contractor, 1750 its officers, employees, agents, Subcontractors, nor its Affiliates, will file any lawsuit against City 1751 that alleges any claims related to, arising out of, or in connection with City’s Request for Proposals 1752 process for the Contractor’s Services, including the award of any agreement or contract thereunder. 1753 K. Iran Contracting Act Certification. Contractor represents and warrants that it is in compliance with 1754 and has completed all requirements necessary to comply with the Iran Contracting Act (Public 1755 Contract Code Sec. 2200).
1756 L. No Default. Contractor shall not be in breach or default under this Agreement or any other 1757 agreement with the City.
1758 M. Compliance with Laws.
1759 1. Contractor shall not discriminate against, or engage in the harassment of, any City employee or 1760 volunteer or any employee of Contractor or applicant for employment because of an 1761 individual’s race, religion, color, sex, gender identity, sexual orientation, ethnic or national 1762 origin, ancestry, citizenship status, uniformed service member status, marital status, family 1763 relationship, pregnancy, age, cancer or HIV/AIDS-related medical condition, genetic 1764 characteristics, and physical or mental disability (whether perceived or actual). This 1765 prohibition shall apply to all of Contractor’s employment practices and to all of Contractor’s 1766 activities as a provider of Services to the City.
1767 2. Contractor shall comply with all federal, State and City laws, statutes, ordinances, rules and 1768 regulations and the orders and decrees of any courts or administrative bodies or tribunals in 1769 any manner affecting the performance of the Agreement. 291
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DRAFT July 2024 47 City of Cupertino/ _____________ Agreement 1770 9.02 RESERVED
1771 9.03 RESERVED
1772 ARTICLE 10.
1773 MISCELLANEOUS PROVISIONS
1774 10.01 EXHIBITS
1775 If any provisions contained in the text of Articles 1 through 10 are inconsistent or conflict with any Exhibits 1776 to this Agreement, then the provisions of the text will govern. 1777 10.02 INTEGRATION
1778 This Agreement contains the entire agreement between the Parties with respect to the rights and 1779 responsibilities of the Parties under this Agreement, including the enforcement and administration of this 1780 Agreement. This Agreement, including any subsequent amendments hereto pursuant to Section 10.05, 1781 completely and fully supersedes all prior understandings and agreements between the Parties with 1782 respect to those rights and responsibilities.
1783 10.03 SECTION HEADINGS
1784 Any captions or headings following the Exhibit, Section, subsection, paragraph, and Article numbers and 1785 preceding the operative text of this Agreement is for convenience of reference only and do not control or 1786 affect the scope, intent, meaning, construction, interpretation, or effect of this Agreement. 1787 10.04 INTERPRETATION AND CONSTRUCTION
1788 A. Drafting. This Agreement must be interpreted and construed reasonably and neither for nor against 1789 either Party, regardless of the degree to which either Party participated in its drafting. Contractor 1790 acknowledges that it determined to participate in the procurement of this Agreement upon its own 1791 choice and initiative and, during the course of that procurement, City solicited Contractor’s 1792 comments, exceptions, and proposals with respect to provisions in the Agreement. The Parties have 1793 negotiated this Agreement at arm’s length and with advice of their respective attorneys, and no 1794 provision herein is construed against City solely because it prepared this Agreement in its executed 1795 form.
1796 B. Gender and Plurality. Words of any gender include correlative words of any other genders. Words 1797 importing the singular number mean and include the plural number, and vice versa, unless the 1798 context demands otherwise.
1799 C. Font. Any underlined, italicized, bold-faced, upper captioned, or other font style are for ease of 1800 reading and contract administration only and do not imply relative importance or unimportance of 1801 any provision of this Agreement.
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DRAFT July 2024 48 City of Cupertino/ _____________ Agreement 1802 D. References to Parts. References to Sections and Articles refer to Sections and Articles of this 1803 Agreement, unless specified otherwise. References to Exhibits refer to Exhibits attached to this 1804 Agreement. Reference to “subsections” refers to the subsection contained in the same Section in 1805 which the reference occurs, unless otherwise provided. 1806 E. Examples. Examples are for purpose of illustration only. If any example is ambiguous or is 1807 inconsistent or conflicts with the text that it illustrates, the text governs. 1808 F. Specifics No Limitation on Generalities. The mention of any specific duty or Liability imposed upon 1809 the Contractor may not be construed as a limitation or restriction of any general Liability or duty 1810 imposed upon the Contractor by this Agreement or Applicable Law. 1811 10.05 AMENDMENT
1812 The Parties may change, modify, supplement, or amend this Agreement only upon written agreement 1813 duly authorized and executed by both Parties. . However, the Plans attached to this agreement as Exhibits 1814 B-1 and B-2 may be modified or edited by the City Representative and Contractor Representative, upon 1815 their mutual agreement and evidenced in writing, unless the Agreement or Applicable Law specifically 1816 requires approval by City Council.
1817 10.06 SEVERABILITY
1818 A. If any clause, sentence, provision, subsection, Section, or Article of this Agreement or Exhibit to this 1819 Agreement (an “Agreement Provision”) is ruled unconstitutional, illegal, invalid, non-binding, or 1820 unenforceable by any court of competent jurisdiction, then the Parties will:
1821 1. promptly meet and negotiate a substitute for those Agreement Provision and any related 1822 amendments, deletions or additions to other provisions of this Agreement which together 1823 effect the Parties’ original intent to the greatest extent allowable under Applicable Law. 1824 2. if necessary or desirable to accomplish preceding item (1), apply to the court that made that 1825 ruling for a judicial construction of the substituted Agreement Provision and any 1826 amendments, deletions, or additions to this Agreement. Contractor will pay City half of the 1827 reasonable Direct Costs of that application within twenty (20) Days of City’s request if 1828 Contractor or a third Person other than City instituted proceedings resulting in the ruling. 1829 B. If the unconstitutional, illegal, invalid, non-binding, or unenforceable Agreement Provision does not 1830 affect any of the remaining provisions of this Agreement, such Agreement Provision or portion 1831 thereof will be excluded from the Agreement and the remaining provisions of the Agreement will 1832 remain in full force and effect.
1833 10.07 COSTS OF ENFORCING AGREEMENT
1834 If City initiates legal action, files a complaint or cross-complaint, or pursues arbitration, appeal, or other 1835 proceedings to enforce its rights or a judgment in connection with this Agreement, the prevailing party 1836 will be entitled to reasonable attorney fees and costs. 293
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DRAFT July 2024 49 City of Cupertino/ _____________ Agreement 1837 10.08 AUTHORITY
1838 City warrants that the officers listed below have been duly authorized by City to execute this Agreement 1839 on behalf of City. Contractor warrants that the individuals listed below have been duly authorized by the 1840 Contractor to execute this Agreement on behalf of the Contractor. 1841 10.09 COUNTERPARTS
1842 This Agreement, including dated signatures on amended Exhibits and attachments to those Exhibits, may 1843 be executed in counterparts, each of which will be deemed to be an original. 1844 IN WITNESS WHEREOF, the Parties have caused the Agreement to be executed as of the latter of the date 1845 written below.
1846 ZANKER ROAD RESOURCE MANAGEMENT, LLC CITY OF CUPERTINO 1847
1848
1849 ____________________________ ________________________ 1850
1851 By: ________________________ By: ________________________ 1852 (print name) (print name)
1853
1854 Date: Date:
1855
1856
1857
1858 ATTEST: ATTEST:
1859
1860
1861 ____________________________ _________________________ 1862
1863 By: ________________________ By: Kirsten Squarcia
1864 Corporate Officer (print name) City Clerk
1865
1866
1867
1868 APPROVED AS TO FORM:
1869
1870
1871 ______________________
1872
1873 Cupertino City Attorney
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DRAFT July 2024 A-1 City of Cupertino/ _____________ Agreement EXHIBIT A: DEFINITIONS
AB 341 means California Assembly Bill 341, the California Jobs and Recycling Act of 2011 (Chesbro, Chapter 476, Statutes of 2011) as amended, supplemented, superseded, and replaced from time to time, and all implementing regulations.

AB 939 means California Assembly Bill 939 (Sher, Chapter 1095, Statutes of 1989) the California Integrated Waste Management Act of 1989 (California Public Resources Code Sections 40000 et seq.), as amended, supplemented, superseded, and replaced from time to time, and all implementing regulations.

AB 1201 means California Assembly Bill 1201 (Ting, Chapter 504, Statutes of 2021) amending Sections 42356, 42356.1, and 42357 of, and amending the heading of Chapter 5.7 (commencing with Section 42355) of Part 3 of Division 30 of, the California Public Resources Code, relating to solid waste, as amended, supplemented, superseded, and replaced from time to time, and all implementing regulations.

AB 1826 means California Assembly Bill 1826, the Organic Waste Recycling Act of 2014 (Chesbro, Chapter 727, Statutes of 2014) modifying Division 30 of the California Public Resources Code), as amended, supplemented, superseded, and replaced from time to time, and all implementing regulations.

Accept, Accepted, or Acceptance (or any variation thereof) means and refers to Delivered Materials that have been Transported to the Facility or an Alternative Facility and have been received by the Contractor for Processing, in accordance with Permits and Applicable Law.

Act means the California Integrated Waste Management Act of 1989 set forth in PRC Section 40000, et seq.

Advanced Clean Fleets Rule means 13 CCR Sections 2013, 2013.1, 2013.2, 2013.3, 2013.4, 2014,2014.1, 2014.2, 2014.3, 2015, 2015.1, 2015.2, 2015.3, 2015.4, 2015.5, 2015.6, and 2016 as amended, supplemented, superseded, and replaced from time to time.

Affiliate means all businesses (including corporations, limited and general partnerships, and sole proprietorships) which are directly or indirectly related to Contractor by virtue of direct or indirect Ownership interests or common management shall be deemed to be “Affiliated with” Contractor and included within the term “Affiliates” as used herein. An Affiliate shall include a business in which Contractor Owns a direct or indirect Ownership interest, a business which has a direct or indirect Ownership interest in Contractor, and/or a business which is also Owned, controlled, or managed by any business or individual which has a direct or indirect Ownership interest in Contractor. For purposes of determining whether an indirect Ownership interest exists, the constructive Ownership provisions of Section 318(a) of the Internal Revenue Code of 1986, as in effect on the date of this Agreement, shall apply; provided, however, that (i) “ten percent (10%)” shall be substituted for “fifty percent (50%)” in Section 318(a)(2)(C) and in Section 318(a)(3)(C) thereof; and, (ii) Section 318(a)(5)(C) shall be disregarded.

For purposes of determining Ownership under this paragraph and constructive or indirect Ownership under Section 318(a), Ownership interest of less than ten percent (10%) shall be disregarded and percentage interests shall be determined on the basis of the percentage of voting interest or value which the Ownership interest represents, whichever is greater.

Agreement means this Agreement between City and Contractor, including all exhibits, schedules, and attachments, which are incorporated in this Agreement by reference, as this Agreement may be amended and supplemented.
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DRAFT July 2024 A-2 City of Cupertino/ _____________ Agreement Alternative Daily Cover or ADC has the same meaning as in Section 20690 of Title 27 of the California Code of Regulations.

Alternative Facility(ies) means the Facility proposed by Contractor and approved by City to Accept and Process City’s Delivered Materials should the Facility be unable to Accept Delivered Material as provided in Section 4.12 of the Agreement.

Alternative Intermediate Cover or AIC has the same meaning as in Section 20700 of Title 27 of the California Code of Regulations.

Annual Report means the report described in Section 4.14.

Applicable Law means all Federal, State, County, and local laws, regulations, rules, orders, judgments, degrees, permits, approvals, or other requirement of any governmental agency having jurisdiction over the Collection, Transportation, Processing, and Disposal of Recyclable Materials, Organic Materials, C&D Debris, disaster debris, and Solid Waste that are in force on the Effective Date and as may be enacted, issued, or amended during the Term of this Agreement. The Parties acknowledge that, as of the date of this Agreement, the Governor has recently signed legislation or taken executive actions including, but not limited to, AB 1201, SB 54, SB 343, and the Advanced Clean Fleets Rule, for which development of regulatory requirements or related rule making is in process as of the Effective Date.

Approved Facility(ies) means the GreenWaste Zanker Resource Recovery Facility located at 675 and 705 Los Esteros Rd., San Jose, CA 95134, the GreenWaste San Jose Material Recovery Facility located at 625 Charles St., San Jose, CA 95112, and Potrero Hills Landfill located at 3675 Potrero Hills Ln., Suisun City, CA 94585 proposed by Contractor and approved by City to Accept and Process or Dispose of City’s Delivered Materials under this Agreement.

Assign (Assignment) means:

1. selling, exchanging, or otherwise transferring effective control of management of the Contractor (through sale, exchange, or other transfer of outstanding stock or otherwise);

2. issuing new stock or selling, exchanging, or otherwise transferring twenty percent (20%) or more of the then outstanding common stock of the Contractor;

3. any dissolution, reorganization, consolidation, merger, re-capitalization, stock issuance or reissuance, voting trust, pooling agreement, escrow arrangement, liquidation, or other transaction which results in a change of Ownership or change of control of Contractor;

4. any Assignment by operation of law, including insolvency or bankruptcy, making Assignment for the benefit of creditors, writ of attachment of an execution, being levied against Contractor, appointment of a receiver taking possession of any of Contractor’s tangible or intangible property, or transfer occurring in the event of a probate proceeding;

5. any combination of the forgoing (whether or not in related or contemporaneous transactions) which has the effect of any that transfer or change of Ownership or change of control of Contractor.

Calendar Year means a successive period of twelve (12) months commencing on January 1 and ending on December 31.
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DRAFT July 2024 A-3 City of Cupertino/ _____________ Agreement CALGreen means the California the California Green Building Standards Code, as originally adopted under Cupertino Municipal Code Section 16.58.010, as it may be amended.

CCR means California Code of Regulations.

CERCLA means the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. Section 9600 et. Seq.).

Change in Law means the occurrence of any event or change in Applicable Law as follows:

1. the adoption, promulgation, repeal, modification, amendment, or other change in Applicable Law or change in judicial or administrative interpretation thereof occurring after the Effective Date, other than laws with respect to taxes based on or measured by net income, or any unincorporated business, payroll, franchise taxes levied by any tax board (other than franchise fees levied by City) or employment taxes; or,

2. any order or judgment of any federal, State, or local court, administrative agency, or governmental body issued after the Effective Date:
a. the order or judgment is not also the result of the willful misconduct or negligent action or inaction of the Party relying thereon or of any third party for whom the Party relying thereon is directly responsible; and,
b. the Party relying thereon, unless excused in writing from so doing by the other Party, will make or have made, or will cause or have caused to be made, Reasonable Business Efforts to contest the order or judgment (it being understood that contesting in good faith an order or judgment will not constitute or be construed as a willful misconduct or negligent action of the Party); or

3. the imposition by a governmental authority or agency of any new or different material conditions in connection with the issuance, renewal, or modification of any Permit after the date of this Agreement; or

4. the failure of a governmental authority or agency to issue or renew, or delay in the issuance or renewal of, or the suspension, interruption, or termination of, any Permit after the date of this Agreement; provided the failure to issue or the suspension or termination of any Permit is not the result of negligent action or inaction of the Party relying thereon or any third party for whom the Party relying thereon is directly responsible.

City means the City of Cupertino acting through its City Council or its authorized officers or employees.

City Reimbursements means all fees payable to the City identified and referenced in Article 7 of this Agreement. Contractor acknowledges that City Reimbursements are a cost of doing business not eligible for profit in the City. Both Parties acknowledge that all City Reimbursements are an allowable cost of business similar to any license or permit required by the Contractor to perform the services required under this Agreement and will be recovered by Contractor through the Per-Ton Rates.

City Representative means the City’s Director of Public Works, who is responsible for the administrative management of this Agreement, or their designee.
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DRAFT July 2024 A-4 City of Cupertino/ _____________ Agreement Clean Wood means wood that is not painted, stained, coated, pressure treated, or chemical treated.

Clean Wood may include dimensional lumber, pallets, crates, chop sticks, toothpicks, stir sticks, and wooden utensils. Clean Wood excludes creosote, lumber treated with chromated copper arsenate (CCA), melamine coated furniture, and manufactured wood products such as plywood, particle board, oriented strand board, medium density fiberboard and Treated Wood Waste as defined by CalRecycle and DTSC.

Clean Wood is a subset of Organic Materials.

Closure means closure of the Facility or portions of the Facility in accordance with Applicable Law, including all planning, design, regulatory approvals, plan implementation, construction, and monitoring.

Collection Agreement means the Agreement for the collection of City’s discarded materials between the City and Recology Cupertino, dated December 3, 2020, as it may be amended or replaced.

Collection Contractor means the Person that City directs pursuant to the Collection Agreement to Collect and deliver Delivered Materials to the Facility.

Commencement Date means November 21, 2025, the date that C&D Material Processing Services provided by the Contractor will commence.

Compost, Composted, or Composting means a controlled biological decomposition of Organic Waste yielding a safe and nuisance-free Compost Product.

Compost Product means the product resulting from the controlled biological decomposition of Organic Wastes that are Source Separated from the Solid Waste stream, or which are separated at a centralized facility; or as otherwise defined in 14 CCR Section 17896.2(a)(4).

Compostable Paper means paper products that are directed or approved by the City for Collection or Processing as Organic Waste.

Construction and Demolition Materials, C&D Materials 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 Unpermitted Waste. Construction and Demolition Materials includes rocks, soils, tree remains and other Yard Trimmings that result from land clearing or land development operations in preparation for construction. For purposes of clarity, putrescible wastes are not included in Construction and Demolition Materials.

Contract Manager means the Person designated by the Contractor to be the City’s primary point of contact related to this Agreement and associated Services provided. Contractor’s Contract Manager may negotiate and bind Contractor with respect to changes in scope, dispute resolution, compensation adjustments, and Service-related matters.

Contractor means Zanker Road Resource Management, LLC, a limited liability company organized in Delaware and operating under the laws of the State of California.

Contractor Compensation means the monetary compensation received by Contractor in return for providing services in accordance with this Agreement as described in Article 5.

Contractor Component has the meaning provided in Section 5.02. 298
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DRAFT July 2024 A-5 City of Cupertino/ _____________ Agreement Conviction means a criminal conviction, permanent mandatory or prohibitory injunction, or a final judgment or order from a court or regulatory agency of competent jurisdiction with respect to Criminal Activity.

County means the County of Santa Clara.

Criminal Activity means any of the following:

1. Any criminal offense in connection with obtaining, attempting to obtain, procuring, or performing a public or private agreement related to Recyclable Materials, Organic Waste, Yard Trimmings, or Solid Waste services of any kind (including Collection, Transport, Transfer, Processing, Composting, or Disposal), including this Agreement.

2. Bribery or attempting to bribe a public officer or employee of a local, State, or federal agency.

3. Fraud, embezzlement, extortion, racketeering, false claims, false statements, forgery, falsification, or destruction of Records, obstruction of justice, knowingly receiving stolen property, theft, or misprision (failure to disclose) of a felony.

4. Unlawful disposal of Hazardous Materials, Designated Waste, or Unpermitted Waste.

5. Violation of antitrust laws, including laws relating to price-fixing, bid-rigging and sales and market allocation, and of unfair and anti-competitive trade practice laws, including with respect to inflation of waste collection, hauling, or disposal rates or fees.

Day means calendar day.

Delivered Materials means C&D Materials, either individually or collectively, to be delivered to the Facility under this Agreement by Collection Contractor, or by Stewardship Organizations or Extended Producer Responsibility Program participants. Delivered Materials do not include Excluded Waste.

Designated Waste means non-Hazardous Material that may pose special Disposal problems because of its potential to contaminate the environment. Designated Waste 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 or pursuant to applicable Permits. Designated Waste consists of those substances classified as Designated Waste by the State, in CCR Title 23, Section 2522.

Direct Costs means the sum of:

1. payroll costs directly related to the Contractor’s performance, or supervision of any obligation pursuant to the provisions of this Agreement, comprised of compensation and fringe benefits, including vacation, sick leave, Holidays, retirement, workers compensation insurance, federal and State unemployment taxes, and all medical and health insurance benefits, plus

2. the costs of materials, Services, direct rental costs and supplies, plus

3. the reasonable costs of any payments to Subcontractors necessary to and in connection with the performance under or administration and enforcement of this Agreement; plus

4. any other cost or expense which is directly or normally associated with the task performed. 299
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DRAFT July 2024 A-6 City of Cupertino/ _____________ Agreement Such Direct Costs are to be substantiated by (i) a certificate signed by the principal financial officer of the Contractor or the authorized representative of City or their designee, as the case may be, setting forth the amount of the cost and the reason why the cost is properly chargeable to City or the Contractor, as the case may be, and representing that the cost is an arm’s length and competitive price, if there are competitive prices, for the Service or materials supplied; and, (ii) if City or the Contractor requests, as the case may be, additional back-up documentation as may be available to reasonably substantiate any Direct Cost, including invoices from suppliers and Subcontractors. Direct Costs exclude Non-Allowable Costs.

Disaster Response Plan means the plan provided for in Section 4.20 and Exhibit B-2.

Disposal (or Dispose or other variation thereof) means the final disposition of Solid Waste in accordance with this Agreement at the Facility.

Diversion (Divert) means to divert from landfill Disposal or transformation through source reduction, reuse, Recycling, Composting, or other means within the meaning of the Public Resources Code Section 41780.

Edible Food means food intended for human consumption, as defined in 14 CCR Section 18982(a)(18). For the purposes of this Agreement, Edible Food is not Solid Waste or Food Scraps if it is recovered as intended. 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 portion of the California Health and Safety Code.

Effective Date means the date on which this Agreement is fully executed by both Parties.

Event of Default has the meaning provided in Section 7.01.

Excluded Waste(s) means Hazardous Substances, Hazardous Waste, Infectious Waste, Designated Waste, Unpermitted 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 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, latex paint in its original container, or Household Batteries when properly placed for Collection by a Generator as set forth in the Collection Agreement.

Extended Producer Responsibility Program or EPR Program means an environmental program or policy codified, enforced, and/or monitored by local, State, or Federal governments in which a producer’s, distributor’s, or retailer’s administrative, financial, operational, and/or physical responsibility for a product is extended to the post-consumer stage of a product’s life cycle. Extended Producer Responsibility Programs may be implemented by individual producers, collective industry organizations such as a producer responsibility organization or Stewardship Organization, or other regulated entities specified under the program. Such programs may cover individual products or categories of products, using one (1) or more funding mechanisms, as defined in the regulation(s) establishing the program.

Facility (Facilities) means GreenWaste Zanker Resource Recovery Facility located at 675 and 705 Los Esteros Rd., San Jose, CA 95134as proposed by Contractor and approved by City. 300
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DRAFT July 2024 A-7 City of Cupertino/ _____________ Agreement Food Scraps means discarded food that will decompose and or/putrefy including: (i) all kitchen and table food; (ii) animal or vegetable waste that is generated during or results from the storage, preparation, cooking or handling of food stuffs; (iii) fruit waste, grain waste, dairy waste, meat, and fish waste; and, (iv) vegetable trimmings, houseplant trimmings, and other organic waste common to the occupancy of Residential dwellings and some commercial kitchen operations.

Generator means any Person whose act or process produces Solid Waste, C&D, Organic Waste, Recyclable Materials, or Unpermitted Waste or other material that becomes part of the overall waste stream.

Goods and Services means all goods and services used in providing Services, including labor, leases, subleases, equipment, supplies, and capital related to furnishing Services; insurance, bonds, or other credit support if the insurer is an Affiliate or a captive of Contractor or any Affiliate; and, legal, risk management, general, and administrative services.

Government Fees are fees or taxes imposed by governmental entities upon the Facility without regard to the specific site characteristics or operational history of those facilities, and may include franchise fees, regulatory fees, mitigation fees, surcharges, governmental impositions, and/or taxes. “Government Fees” are not amounts imposed upon the Facility in connection with the repair, remediation, improvement, addition, or expansion of the Facility.

Governmental Fee Component has the meaning provided in Section 5.02.

Hazardous Substances, Hazardous Waste are materials that by reason of their quality, concentration, composition, or physical, chemical, or infectious characteristics may cause or significantly contribute to an increase in mortality or an increase in serious illness or pose a substantial threat or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of or otherwise mismanaged; or any waste that is regulated as a hazardous waste, toxic waste, hazardous chemical substance or mixture, or asbestos under Applicable Law, and:

1. “Hazardous Waste” pursuant to Section 40141 of the California Public Resources Code; regulated under Chapter 7.6 (commencing with Section 25800) of Division 20 of the California Health and Safety Code; all substances defined as hazardous waste, acutely hazardous waste, or extremely hazardous waste by Sections 25110.02, 25115, and 25117 of the California Health and Safety Code (the California Hazardous Waste Control Act), California Health and Safety Code Section 25100 et seq., including 23 CCR Sections 2521 and 2522; and

2. materials regulated under the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq., as amended (including amendments thereto made by the Solid Waste Disposal Act Amendments of 1980), and

3. materials regulated under the Toxic Substance Control Act, 15 U.S.C. Section 2601 et seq., as amended, and related federal, State, and local laws and regulations, including the California Toxic Substances Account Act, California Health and Safety Code Section 25300 et seq.; and

4. materials regulated under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. 9601, et seq., and

5. materials regulated under any future additional or substitute federal, State, or local laws and regulations pertaining to the identification, transportation, treatment, storage, or disposal of toxic substances or hazardous waste, and
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DRAFT July 2024 A-8 City of Cupertino/ _____________ Agreement

6. Any substance the presence of which at the Facility is prohibited by Applicable Law.

If two (2) or more governmental agencies having concurrent or overlapping jurisdiction over hazardous waste adopt conflicting definitions of “hazardous waste”, for purposes of collection, transportation, Processing, and/or disposal, the broader, more restrictive definition is employed for purposes of this Agreement.

Holidays are defined as Easter, Thanksgiving, Christmas, New Year's Day.

Indemnities or Indemnification means all defense, hold harmless, and indemnification requirements under this Agreement.

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 the California Health and Safety Code Section 25117.5.

Liabilities means all liabilities, including:

1. Actions;

2. Awards, judgments, and damages, both: (i) actual damages, whether in contract or in tort, damage for injury to or death of any Person, and damage to property; ;

3. Contribution or Indemnity claimed by Persons other than the Parties;

4. Injuries, losses, debts, liens, liabilities,

5. Costs,

6. Interest,

7. Fines, charges, penalties, forfeitures, and

8. Expenses such as attorney’s and expert witness fees, and costs incurred in connection with defending against any of the foregoing or in enforcing Indemnities.

Liquidated Damages means the amounts due by Contractor for failure to meet specific quantifiable standards of performance as described in Section 7.06 and Exhibit E.

Maximum Vehicle Turnaround Time means a thirty (30) minute average monthly vehicle Turnaround Time. The average monthly vehicle Turnaround Time shall be calculated by summing the actual vehicle Turnaround Time for each load of City’s Delivered Materials delivered by the Collection Contractor in a given month divided by the number of loads of City’s Delivered Materials delivered by the Collection Contractor in the given month.

Municipal Code means the City of Cupertino Municipal Code.

Non-Allowable Costs include the following:
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1. fines, penalties, assessments, and other amounts paid for Violations or noncompliance with Applicable Law or in settlement of claims or allegations of noncompliance with Applicable Law;

2. any costs of Indemnifications, including Indemnification, Liabilities, or any mediation, arbitration, or judicial proceeding, whether formal or informal;

3. any contributions or donations to any Person (including charitable, non-profit, service or other community groups, and elected officials), including cash, property, and services in kind;

4. lobbying costs, whether cash, property, or services in kind, such as:
a. costs incurred in any direct or indirect attempt to influence the outcome of any federal, State, or local election, referendum, initiative, or similar process by citizen electorate or vote upon resolutions, ordinances, or other action items by elected officials (including members of a city council or a county board of supervisors), through cash contributions, endorsements, publicity, or other Action; b. establishing, administering, contributing to, or paying the expense of a candidate, political party, campaign, political action committee, or other Person or organization established for the purpose of influencing the outcomes of elections or vote, including votes on resolutions, ordinances, or other actions by elected bodies such as a city council or a county board of supervisors;
c. attempts to influence (i) the introduction of federal, State, or local legislation, or (ii) the enactment or modification of any pending federal, State, or local legislation through communication with any member of employee of Congress, a State legislature, or local governing body, or by preparing, distributing, or using publicity; d. legislative liaison activities when those activities are carried on in support of, or in knowing preparation for, an effort to engage in unallowable activities; Notice (or Notify) means a notice given in accordance with Section 8.09.

Operations Plan(s) means the plan(s) submitted by the Contractor with its proposal, attached hereto as Exhibit B-1.

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.

Ownership has the meaning provided under the constructive ownership provisions of Section 318(a) of the Internal Revenue Code of 1986 except that (1) ten percent (10%) is substituted for fifty percent (50%) in Section 318(a)(2)(C) and in Section 318(a)(3)(C) thereof; (2) Section 318(a)(5)(C) is disregarded; (3) 303
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DRAFT July 2024 A-10 City of Cupertino/ _____________ Agreement ownership interest of less than ten percent (10%) is disregarded; and, (4) percentage interests is determined on the basis of the percentage of voting interest or value which the ownership interest represents, whichever is greater.

Party or Parties refers to City and Contractor, individually or together.

Per-Ton Rate means the per-unit Contractor Compensation owed Contractor by Collection Contractor for each Ton of Delivered Materials as payment for all Processing Services, provided under this Agreement.

Initial Per-Ton Rates are provided in Exhibit B-3. Beginning in Year Two, Per-Ton Rates are adjusted annually as provided in Article 5.

Permits means all federal, State, County, City, other local and any other governmental unit permits, orders, licenses, approvals, authorizations, consents, and entitlements that are required under Applicable Law to be obtained or maintained by any Person with respect to Services, as renewed or amended from time to time.

Person(s) includes an individual, firm, association, organization, partnership, corporation, trust, joint venture, the United States, the State, local governments, municipalities, special purpose districts, and other entities.

Pleas means the Contractor or any of its Contract Managers has pled “guilty” or entered a plea of “nolo contendere” or “no contest” to Criminal Activity occurring within City or relating to this Agreement.

PRC means the California Public Resources Code.

Premises means any land or building in the City where C&D Materials or Solid Waste are generated or accumulated.

Process, Processing means the controlled separation, Recovery, volume reduction, conversion, or Recycling of Solid Waste and other discarded materials including, but not limited to, organized, manual, automated, or mechanical sorting, cleansing, treating or reconstituting or use of other methods, for the purpose of making such material available for Recycling or reuse and/or marketing as a Recyclable Materials, Organic Material, or C&D product.

Rate Period means a twelve- (12-) month period, commencing February 1 and concluding January 31 with the exception of the first year which will be November 21, 2025 to January 31, 2027 as noted in 5.03.

RCRA means the Resource Conservation and Recovery Act (42 U.S.C. Section 6900 et. seq.).

Reasonable Business Efforts means those efforts a reasonably prudent business Person would expend under the same or similar circumstances in the exercise of that Person’s business judgment, intending in good faith to take steps calculated to satisfy the obligation that that Person has undertaken to satisfy.

Records means all non-privileged ledgers, book of account, invoices, vouchers, canceled checks, logs, correspondence, evidencing Per-Ton Rates, Tonnage of Solid Waste and other materials handled, satisfaction of Contractor’s obligations under this Agreement and performance of the terms of this Agreement, damages payable under this Agreement, and Events of Defaults, including, but not limited to, those Records described in Sections 4.02, 4.03, 4.04, 4.09, 4.13, 4.14, 4.17, 8.13, 8.14, 8.15, and 10.01.

Recover (or any variation thereof) means the picking, pulling, sorting, separating, classifying, and recovery of Recyclable Materials, Organic Materials, or other discarded materials from Solid Waste whether by 304
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DRAFT July 2024 A-11 City of Cupertino/ _____________ Agreement manual or mechanical means, after Acceptance of those materials and before marketing of Recovered Materials, including Recycling, material reuse and recovery, mulching, Composting, or land application.

Recovered Materials means Recyclable Materials, Organic Waste, or other materials that are Recovered.

Recyclable Materials means materials that are reused, remanufactured, or processed. Recyclable Materials includes, but is not limited to, those materials accepted under the City’s Collection Agreement.

Recycle or Recycling (or any variation thereof) means the process of sorting, cleansing, treating, and reconstituting, at a C&D Materials Processing Facility or a Secondary 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 does not include any thermal or chemical conversion methods.

Regulatory Agency means any federal, State, or local governmental agency that regulates Transfer, Transportation, and Disposal of Solid Waste, including California Department of Transportation, California Department of Motor Vehicles, EDD, U.S. Immigration and Naturalization Services, California Air Resources Board, regional water quality management districts, California Department of Toxic Substances, CIWMB, the Local Enforcement Agency, federal and State Environmental Protection Agencies, and other federal or State health and safety department, applicable to Services.

Residue means those materials which, after Processing, are Disposed rather than Recovered due to either the lack of markets for materials or the inability or infeasibility of the Processing Facility to capture and Recover the materials.

SB 54 means California Senate Bill 54, the Plastic Pollution Prevention and Packaging Producer Responsibility Act (Allen, Chapter 75, Statutes of 2022), amending Section 41821.5 of the California Public Resources Code to add Chapter 3 (commencing with Section 42040) to Part 3 of Division 30, as amended, supplemented, superseded, and replaced from time to time, and all implementing regulations.

SB 343 means California Senate Bill 343, the Environmental Advertising: Recycling Symbol: Recyclability:

Products and Packaging Act (Allen, Chapter 507, Statutes of 2021) amending Sections 17580, 17580.5 of the California Business and Professions Code, amending Sections 18015 and 42355.5 of, and adding Section 42355.51 to, the California Public Resources Code, as amended, supplemented, superseded, and replaced from time to time, and all implementing regulations.

SB 1383 means Senate Bill 1383 (Lara, Chapter 395, Statutes of 2016) adding Sections 39730.5, 39730.6, 39730.7, and 39730.8 to the California Health and Safety Code, and adding Chapter 13.1 (commencing with Section 42652) to Part 3 of Division 30 of the California Public Resources Code, 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 implementing regulations developed by CalRecycle and adopted on November 3, 2020 that created Chapter 12 of 14 CCR, Division 7 and amended portions of regulations of 14 CCR and 27 CCR.

Secondary Processing Facility means any downstream facility that receives Delivered Materials and further Processes such material to recover additional material for Recycling and/or to prepare the material for use in a final product and/or for marketing as an input for a new product. A Secondary Processing Facility includes any downstream facility that receives Delivered Materials for further Processing prior to final decomposition into a Compost product or to ready the material for sale as Mulch.

A Secondary Processing Facility may be the same/initial facility at which Delivered Materials were received or Processed or any additional facility(ies) such materials are Transported to. 305
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DRAFT July 2024 A-12 City of Cupertino/ _____________ Agreement Self Haul means the collection and Transportation of Solid Waste or C&D Materials by Persons other than the Collection Contractor, including the Generator thereof and the owner or occupant of residential or commercial Premises located in City where materials were generated.

Service or Services mean all obligations of Contractor under and in accordance with this Agreement.

Solid Waste means and includes all putrescible and non-putrescible solid, semisolid, and liquid wastes, including garbage, trash, refuse, rubbish, ashes, industrial wastes, dewatered, treated, or chemically-fixed sewage sludge which is not Hazardous Waste, demolition and construction wastes, discarded home and industrial appliances, manure, vegetable or animal solid and semisolid wastes, biosolids, and other discarded solid and semisolid wastes, as defined in California Public Resources Code §40191 as that section may be amended from time to time. For the purposes of this Agreement, “Solid Waste” does not include abandoned vehicles and parts thereof, Hazardous Waste, or low-level radioactive waste, medical waste, Recyclable Materials, Construction and Demolition Materials, or Organic Waste.

Source Separated means the segregation, by the Generator, of materials by material type designated for separate Collection for Recycling, Composting, recovery, or reuse.

Standard Industry Practice means (1) the then-current development and operations practices and standards of the California Solid Waste management industry with respect to Recovery, Diversion, Transfer, Transport, and Disposal services that are in full compliance with Applicable Law, and (2) the then-current development, operations, Closure, and Post-Closure practices and Solid Waste Association of North America (or any successor organization) Manager of Facility Operations standards in meeting Contractor’s obligations under this Agreement for Recovery, Diversion, and Disposal services.

State means the State of California.

Stewardship Organization means a Person(s) that is approved or designated under Applicable Law or by a relevant governing body, including, but not limited to, CalRecycle, the California Air Resources Board, the County, or the City, to manage, coordinate, fund, or otherwise oversee one or more Extended Producer Responsibility Programs, and that is selected by the City. The applicable Stewardship Organization for each Extended Producer Responsibility Program under this Agreement shall be designated or approved by the City Representative, at their sole discretion.

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. Notwithstanding any other provision in this Agreement, Vendors providing materials, supplies, or professional services to Contractor shall not be considered Subcontractors for any purpose under this Agreement (except as explicitly provided in Section 4.01C of this Agreement).

Term is defined in Section 2.02.

Third-Party C&D Materials Processing Accreditor means a City-approved private, non-profit, or government entity that reviews, assesses, verifies, and accredits a C&D Materials Processing Facility(ies) on its ability to ensure effective diversion of C&D Materials from landfills, by providing a certification after assessment, and requiring regular re-certification.

Ton (or any variation thereof) means a unit of weight equal to 2,000 pounds.

Transfer (or Transferring or other variations thereof) means transferring collected material from Collection vehicles to larger long-haul vehicles.
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DRAFT July 2024 A-13 City of Cupertino/ _____________ Agreement Transport (or Transportation) means the act of conveying Delivered Materials from one (1) location to another.

Turnaround Time means the duration of time for each vehicle (i.e., load) of City’s Delivered Materials delivered by Collection Contractor that elapses from the vehicle’s arrival time upon entry to the Facility property until the vehicle’s departure time when it exits the Facility property.

Uncontrollable Circumstances has the meaning provided in Section 8.12.

Unpermitted Waste means wastes or other materials that the Facility may not receive under their Permits, including:

1. All materials that the Facility is not permitted to accept, excluding white goods with chlorinated fluorocarbons and capacitors removed, and other materials that Contractor accepts and safely handles, Recycles, or Disposes.

2. Friable asbestos, unless otherwise approved by applicable regulatory agencies, consisting of materials that can be crumbled with pressure and are therefore likely to emit fibers, being a naturally occurring family of carcinogenic fibrous mineral substances, which may be a Hazardous Material if it contains more than one percent (1%) asbestos.

3. Hazardous Materials.

4. Untreated Infectious Waste or untreated medical wastes (as defined by Chapter 6.1, Division 20 of the State Health and Safety Code) that have disease transmission potential and are classified as Hazardous Wastes by the State Department of Health Services, including untreated pathological and surgical wastes, untreated medical clinic wastes, untreated wastes from biological laboratories, syringes, needles, blades, tubing, bottles, drugs, patient care items such as linen or personal or food service items from contaminated areas, chemicals, personal hygiene wastes, and carcasses used for medical purposes or with known infectious disease.

5. Liquid wastes that are not spadeable including cannery and food Processing wastes, landfill leachate and gas condensate, boiler blowdown water, grease trap pumpings, oil and geothermal field wastes, septic tank pumpings, rendering plant byproducts, and those liquid wastes that may be Hazardous Wastes.

6. Radioactive wastes under Chapter 7.6 (commencing with Section 25800) of Division 20 of the State Health and Safety Code, and any waste that contains a radioactive material, the storage or disposal of which is subject to any other State or federal regulation.

This definition will be promptly amended to reflect any applicable changes in Permits or Applicable Law.

Violation means any Notice, assessment, or determination of non-compliance with Applicable law from any Regulatory Agency to Contractor, whether or not a fine or penalty is included, assessed, levied, or attached.

Working Days (or Work Day or other variations thereof) means Days during which City offices are open to do business with the public.
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DRAFT July 2024 A-14 City of Cupertino/ _____________ 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 Waste) resulting from normal yard and landscaping maintenance. Yard Trimmings are a subset of Organic Waste. 308
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DRAFT July 2024 B-1 City of Cupertino/ _____________ Agreement EXHIBIT B: CONTRACTOR’S PLANS AND RATE PERIOD

ONE RATES
B-1 OPERATIONS PLAN
See Exhibit B-1 Operations Plan attached.

B-2 DISASTER PLAN
See Exhibit B-2 Disaster Plan attached.

B-3 RATE PERIOD ONE PER-TON RATES
Following are the initial Rate Period One Per-Ton Rates as described in Article 5.

Per-Ton Rate for Rate Period One
(Effective November 21, 2025)
Per-Ton Rate
Contractor Component
Total Contractor Component
Mixed C&D Processing $90.56
Governmental Fee Component

1. City of San Jose Solid Waste Enforcement Fee $0.22

2. County Solid Waste Enforcement Fee $1.22
Total Governmental Fee Component $1.44
Total Per-Ton Rate $92.00
Per-Ton Rate
Contractor Component
Total Contractor Component
Inerts C&D Processing $64.29
Governmental Fee Component

1. City of San Jose Solid Waste Enforcement Fee $0.22

2. County Solid Waste Enforcement Fee $1.22
Total Governmental Fee Component $1.44
Total Per-Ton Rate Inerts C&D $65.00
* All government taxes and fees are assessed on a per-Ton basis for all Tons delivered unless otherwise noted, and the amounts shown above are the fees as of the Effective Date. 309
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DRAFT July 2024 Page D-1 City of Cupertino/ _____________ Agreement EXHIBIT C: INSURANCE
A. General Liability Insurance Services Office form number GL 0002 covering Comprehensive General Liability and Insurance Services Office form number GL 0404 covering Broad Form Comprehensive General Liability; or Insurance Services Office Commercial General Liability coverage ("occurrence" form CG 0001). $10,000,000 combined single limit per occurrence for bodily injury, personal injury, and property damage. An excess liability policy may be used to obtain required limit.

The Commercial General Liability Business policy must contain blanket-form endorsements in substantially the following form, or the policy form must include:

1. Thirty (30) Days’ prior written Notice shall be given to the City in the event of cancellation, reduction in coverage below the requirements of this Exhibit, or non-renewal of this policy.

Such Notice shall be sent to:

City of Cupertino
Attention: Public Works Director
10300 Torre Avenue
Cupertino, California 95014

2. The City, its officers, employees, and agents are additional insureds on this policy. The City requires form CG2010 1004.

3. This policy will be considered primary insurance as respects any other valid and collectible insurance maintained by the City, including any self-insured retention or program of selfinsurance, and any other such insurance will be considered excess insurance only.

4. Inclusion of the City as an insured shall not affect City's rights as respects any claim, demand, suit, or judgment brought or recovered against the Contractor. This policy shall protect Contractor and City in the same manner as though a separate policy had been issued to each, but this shall not operate to increase the Contractor's Liability as set forth in the policy beyond the amount shown or to which the Contractor would have been liable if only one (1) Party had been named as an insured.

B. Automobile Liability Insurance Services Office form number CA 0001 covering Automobile Liability, code 1 "any auto", and endorsement CA 0025 (occurrence form). $10,000,000 combined single limit per accident for bodily injury and property damage. An excess liability policy may be used to obtain required limit.

The Automobile Liability policy must contain the same endorsements as required for Comprehensive General Liability and CA 99 48 Broadened Auto Pollution Liability and MCS 90 upset and overturn coverage.

C. Workers Compensation and Employers Liability Insurance. Workers’ compensation limits as required by State Labor Code Section 2700. Employers Liability Insurance in the amount of $1,000,000 per accident.

The Workers' Compensation policy must contain a blanket-form endorsement in substantially the following form:
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EXHIBIT D: GUARANTY AGREEMENT
DRAFT July 2023 D-2 City of Cupertino/ _____________ Agreement The insurer must waive all rights of subrogation against City, its officers, employees, and volunteers for losses arising from work performed by the Contractor for City, except for the sole negligence of City.

D. Environmental Impairment Liability in the amount of $10,000,000 covering Liability arising from the release of pollution at the Facility. The Environmental Impairment Liability policy must contain the same endorsements as required for Comprehensive General Liability. 311
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Draft July 2024 E-1 City of Cupertino/ _____________ Agreement EXHIBIT E: PERFORMANCE STANDARDS AND LIQUIDATED DAMAGES The following table lists the events that constitute breaches of the Agreement's standard of performance warranting the imposition of Liquidated Damages. The table describes the incident(s) or event(s) that trigger Liquidated Damages, the methods by which occurrences will principally be tracked by Contractor or City, and the dollar amounts of Liquidated Damages that the City may assess for Contractor’s failure to meet the performance requirements specified in this Agreement. In the event that the City Representative determines that Contractor has failed to meet the performance standard by this Agreement and described below, the City may assess Liquidated Damages pursuant to Section 7.06 of the Agreement.
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Draft July 2024 E-2 City of Cupertino/ _____________ Agreement Event of Non-Performance Definition Liquidated Damage Amount Failure to meet vehicle turnaround
guarantees specified in Section 4.08.

Contractor shall operate the Approved Facilities such
that vehicle turnaround times do not exceed the
maximum vehicle turnaround time identified in Section

4.08.B
For Collection Contractor vehicles:
$100 per vehicle delayed.

Failure to receive vehicles during
operating hours specified in Section

4.06. Failure of the Contractor to open the Approved Facility to the Collection Contractor during operating days and
hours specified in Section 4.06.
$1,000 per hour that the Approved Facility
is not open to receive the Collection
Contractor.

Failure of Contractor to separately
receive, store, Transfer, or otherwise
manage different streams of materials
received at the Approved Facility(ies)
in a manner that does not result in
contamination.

Failure of Contractor to separately receive, store,
Transfer, or otherwise manage Recyclable Materials,
Yard Waste, Food Scraps, Organic Materials, or C&D
Debris that were Source Separated by the Generator
or Person delivering the material and that were
delivered to the Approved Facility in a manner that
does not result in contamination.
$100 per Ton for each Ton of material
that has been combined, mixed, or
contaminated with another material
stream rather than separately managed,
where the total Tons per incident shall be
the combined Tonnage of the two (2) or
more material streams or contaminants
that were combined or mixed.

Failure of Contractor to achieve
regulatory compliance performance
standards of Section 4.03.

For each material Notice of Violation that any part of
Contractor’s Approved Facility(ies) receives from any
regulatory body related to Contractor responsibilities
as it pertains to operation of the Approved Facility(ies) as outlined in this Agreement and more fully specified
in Section 7.01.D.
$5,000 per month or portion thereof until the
uncontested, material Notice of Violation is
resolved.

Failure of Contractor to perform
required SB 1383 material sampling or
to properly conduct the sampling,
sorting, or measurements.

Failure of Contractor to perform the SB 1383 material
sampling, sorting, or measurements required under SB
1383.
$500 per sample not collected in a given
quarter or per sample in which the
sampling, sorting, or measurements were
not properly conducted.

Timeliness of submissions of reports to
the City.

Failure to submit any report on time to the City (any
report shall be considered late until such time as a
materially correct and complete report is received by
the City).
$500 per day for each day a report is late.
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Draft July 2024 E-3 City of Cupertino/ _____________ Agreement Failure to make Records available
upon request.

Failure of Contractor to make reports and Records
collected and retained by the Contractor accessible to
the City or its authorized representatives within ten
(10) Business Days of making a reasonable records
request.
$500 per day for each day that the
requested Records are not available to the
City.

Failure of the Contractor to notify the
City of intent to use Subcontractor(s).

Failure of Contractor to notify the City anytime that a Subcontractor is used to perform any obligations of the Agreement.
$1,000 per incident that the Contractor fails
to notify the City of its intent to use a
Subcontractor.

Failure of Contractor to provide an
accurate written response to
information requested by the City.

Failure of Contractor to provide a complete and
accurate written response to the City’s reasonable
request within the timeframe specified in the
Agreement (which shall not be less than ten (10)
Business Days if no timeframe is specified in the
Agreement).
$500 per day for each day that the
requested information is late.

Delivery to Non-Approved Facility Each individual occurrence of delivering City-Delivered Materials to a facility other than the Approved
Facility(ies) designated for each material type under
Article 4 of this Agreement.
$500 per failure
Disposal of materials Collected for
Diversion
Each individual occurrence of Disposal of Delivered
C&D Materials without Processing.
$1,000/Load
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Draft July 2024 E-4 City of Cupertino/ _____________ Agreement Failure to Provide Adequate Capacity Failure to provide adequate primary and alternate capacity to accept and Process City Delivered
Materials.
$1,000/Day
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DRAFT July 2024 E-4 City of Cupertino/ _____________ Agreement By placing Designee’s initials at the places provided, each Party specifically confirms the accuracy of the statements made above and the fact that each Party has had ample opportunity to consult with legal counsel and obtain an explanation of Liquidated Damage provisions at the time that the Agreement was made.

Contractor City
Initial Here:_________ Initial Here: _________
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City of Cupertino
GreenWaste Proposal for Construction and Demolition Debris Processing and Solid Waste Disposal 16 evaluators to verify the accuracy and reliability of the recycling/diversion rates, and implements a rigorous
set of protocols, guidelines, and tools to
professionally audit and certify the diversion reports
of C&D recyclers throughout the nation. RCI
increases certainty and builds confidence in the C&D
recycling marketplace for municipalities, the public,
construction project owners, architects, and the environmental community.

Facility Documents
GreenWaste has provided the following attachments:
» Appendix C Solid Waste Facility Permit GreenWaste Zanker Resource Recovery Facility Site 1 » Appendix D Solid Waste Facility Permit GreenWaste Zanker Resource Recovery Facility Site 2 » Appendix E List of Current Contracts
» Appendix F RCI Certification GreenWaste Zanker Resource Recovery Facility Operations Conditions
Operations Information
GreenWaste has completed all operational information required on Form 4.b. of Attachment A.

Operations Plan
In addition to the information provided in the technical proposal form (Attachment A), below is an Operations Plan describing GreenWaste’s plan to provide C&D materials processing services in accordance with the RFP, Article 4 of the Draft Agreement, and Applicable Law:
a. Material Receipt and Acceptance
GreenWaste ensures to meet the requirements of Sections 4.01, 4.03, and 4.19 of the Draft Agreement, including but not limited to receiving, accepting, and safely processing C&D materials. » Acceptance of Delivered Materials. GreenWaste will receive, accept, and safely and lawfully process the City’s Delivered Materials at the Zanker facility. GreenWaste understands that its failure to take all actions it deems necessary to perform the Services does not relieve GreenWaste of its obligations to perform such act or the Services. » Scope Limitations and Exclusions. GreenWaste understands that the award of this Agreement will not preclude the categories of Recyclable Materials, Organic Materials, C&D Materials, and Solid Waste listed in section 4.01 of the Draft Agreement from being Collected by Persons other than the Collection Contractor and Transferred, Transported, Processed, or Disposed by Persons other than GreenWaste, provided that nothing in the Agreement is intended to or will be construed to excuse any Person from obtaining any authorization from the City, which is otherwise required by law. » Securing Permits. GreenWaste currently has and will maintain all Permits required under Applicable Law to perform Services. GreenWaste will provide City proof of Permits and will demonstrate compliance with the terms and conditions of Permits promptly upon request of City. In its Annual Report or more frequently, as necessary, GreenWaste will inform City of any Permit-related or regulatory concerns and GreenWaste’s plans to, and status of, Exhibit B-1 Construction and Demolition Debris Processing Operations Plan 317
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GreenWaste Proposal for Construction and Demolition Debris Processing and Solid Waste Disposal 17 securing the issuance, revision, modification, extension, or renewal of Permits. Promptly upon City direction, GreenWaste will provide City with copies of Permits and any applications or other correspondence that GreenWaste submits in connection with securing Permits.
» Complying with Permits. GreenWaste will at all times provide Services in compliance with all Permits, including any mitigation measures related to the operation and maintenance of the Facility. GreenWaste is solely responsible for paying any fines or penalties imposed for noncompliance with or Violation of Permits or failure to obtain Permits. » Service Standards. GreenWaste will perform Services in accordance with Applicable Law, Standard Industry Practice, and specifications and other requirements of this Agreement. b. Load Checking/Unpermitted Waste
Below are GreenWaste’s procedures for identifying and addressing unpermitted waste in accordance with Draft Agreement section 4.05.
» Inspection. GreenWaste will use Standard Industry Practices to detect and reject Unpermitted Waste and Excluded Waste in a uniform and non-discriminatory manner and will not knowingly Accept Unpermitted Waste or Excluded Waste at the Facility. All inbound material is weighed and inspected upon entry of the facility at the scale house. Scale house weighmasters are trained to inspect and classify material based off material description codes. Weighmasters will reject loads containing unpermitted waste. GreenWaste will comply with the inspection procedure contained in its Permit requirements and in accordance with the Operations Plan. GreenWaste will promptly modify that procedure to reflect any changes in Permits or Applicable Law.
» Unpermitted Wastes and Excluded Wastes Handling and Costs. GreenWaste will arrange for or provide handling, Transportation, and delivery to a Recycling, Processing, or Disposal Facility permitted in accordance with Applicable Law of all Unpermitted Wastes or Excluded Wastes detected at the Facility that are not delivered by the Collection Contractor.

GreenWaste understands it is solely responsible for making those arrangements or provisions and all costs thereof.
» Remedies for Rejected Materials. If GreenWaste identifies Unpermitted Waste or Excluded Wastes delivered by Collection Contractor, GreenWaste may reject it and require Collection Contractor remove it. Further, the City’s agreement with the Collection Contractor will require the Collection Contractor to collect, transport, and dispose of that Unpermitted Waste or Excluded Wastes and/or to remediate any contamination resulting there from at Collection Contractor expense, but GreenWaste may not require City to take those actions or pay those costs. GreenWaste understands nothing in the Agreement will excuse GreenWaste from the responsibility of handling Unpermitted Waste or Excluded Wastes that GreenWaste inadvertently accepts in a lawful manner and of arranging for the disposition of that Unpermitted Waste or Excluded Wastes in accordance with Applicable Law.
» Notification. If GreenWaste rejects Unpermitted Waste or Excluded Wastes delivered by the Collection Contractor, GreenWaste will immediately Notify the City verbally and then follow verbal notifications with Notice identifying the date and time of occurrence; material type; material weight or volume; characterization of material; GreenWaste’s reason for rejection of the delivered material; and the vehicle that delivered the material. 318
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GreenWaste Proposal for Construction and Demolition Debris Processing and Solid Waste Disposal 18 » C&D Contamination Monitoring. GreenWaste will Notify City and the Collection Contractor each time a load of C&D Materials has a contamination level of fifteen percent (15%) or more. The contamination Notice will include the date and time the load was delivered, the vehicle identification number, and photos of the contamination in the load, and any other related information that may be useful for the Collection Contractor in identifying the types of contaminants and developing strategies to reduce contamination and to target information in the Collection Contractor’s education and outreach efforts to City. c. Safety
GreenWaste ensures to provide all services in a safe manner, in accordance with Applicable Law and the insurance requirements of Draft Agreement Article 6. GreenWaste has policies which include an Injury and Illness Prevention Program (“IIPP”), Life Saving Rules (“LSRs”), Heat Illness Prevention Program (both indoor and outdoor), Workplace Violence Prevention, Energy Isolation (“LOTO”), Confined Space Entry, Yellow Iron Policy, Hot Work etc. to ensure the safety of our employees. LSRs apply to all levels of the GreenWaste organization. When GreenWaste and visitors are at GreenWaste facilities or property, they must comply with these rules in addition to their own company’s safety policies as well as appliable laws and regulations. GreenWaste ensures work procedures and training are followed to safely complete tasks. These policies are meant to work with and meet or exceed all applicable local, state, and federal laws in which GreenWaste operates and where the employee is performing work.

At GreenWaste, safety is a core value embedded in our commitment to integrity and teamwork. We focus on ensuring that our operations and facilities are safe for both our employees and our customers. Our dedication to safety is reflected in our compliance with all relevant federal, state, and local laws and regulations, including Occupational Safety and Health Administration (“OSHA”) and CalOSHA.

Under the leadership of our CEO, who champions our safety culture, and our VP of Safety, who guides the success of our safety program, we are continuously evaluating and optimizing our safety initiatives. Safety is a standalone KPI for all employees, and our safety culture encourages active participation, suggestions, and solutions to address potential safety concerns or risks from 319
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GreenWaste Proposal for Construction and Demolition Debris Processing and Solid Waste Disposal 19 all levels of management and staff. Our investment in safety reinforces our position as a responsible and trusted partner.

At GreenWaste, we have implemented a wide range of injury prevention strategies and programs.

These include the development of Life Saving Rules, the “Good Catch” program for reporting near misses, communication strategies for distributing safety talks and lessons learned, and the implementation of a robust root cause analysis process. We have clear and concise safety policies, procedures, and manuals, and we utilize technology such as AI-powered cameras, Radio Frequency Identification (“RFID”) proximity sensors, radar detection, and infrared camera systems for fire detection and suppression.

Our operational safety improvements include working with manufacturers on materials that offer more resistance to cuts and punctures and adjusting work schedules to accommodate extreme weather conditions such as heavy rain or high heat. Through these initiatives, we promote best management practices to create a safe and comfortable working environment for our valued team members.
» Injury Prevention. GreenWaste takes a proactive approach to injury prevention, placing the safety of our employees as our top priority. We have established written policies and procedures that include our Injury and Illness Prevention Plan (IIPP), Life Saving Rules, Heat Illness Prevention, Energy Isolation (LOTO), Confined Space Entry, Personal Protective Equipment (PPE), and Hot Work, among others. Safety inspections are conducted periodically at our various sites to identify and eliminate potential hazards or risks. PPE is worn to minimize exposure to hazards that can cause serious workplace injuries and illnesses. We continue to collaborate with manufacturers, vendors, and employees to optimize the use and effectiveness of PPE.

GreenWaste employs two state-of-the-art technology systems to avoid collisions between people and heavy equipment, SensorZone and Vision Track. SensorZone is a tag-based proximity warning system utilizing RFID technology. The system creates a configurable detection zone around a machine, triggering an alarm if the zone is breached by a tagwearing worker. The unique triple alert system warns the operator, the worker, and those in the surrounding area, fostering shared responsibility for site safety and promoting positive behavioral change. With its cloud-based insights platform, SensorZone provides real-time information on site safety, allowing GreenWaste to understand key safety leading indicators and identify areas for improvement.

Vision Track utilizes visual cameras and AI technology to identify pedestrians and sounds an audible alert to both the driver (interior alarm) and the pedestrian (exterior speaker). » Safety and Incident Reporting. In the event of an injury or illness, GreenWaste utilizes the Safety Incident Management System (“SIMS”) to report and track incidents in compliance with company, regulatory, and industry requirements, including CalOSHA. This system enables us to actively learn from every incident, identify underlying root causes, and prevent future safety incidents. SIMS solutions also establish a consistent and practical approach to safety across the company, providing real-time actionable insights to improve overall safety performance. When an event, incident, or near miss has the potential for a Serious Injury or Fatality (“SIF”) or life-altering injury or illness, TapRoot Cause Analysis is used to 320
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GreenWaste Proposal for Construction and Demolition Debris Processing and Solid Waste Disposal 20 improve performance by analyzing and addressing problems to prevent major accidents and equipment failures. LSRs are designed to inform GreenWaste employees about potential hazards in our operations and the essential rules to prevent injuries and accidents.

These rules were developed based on an extensive analysis of potential hazards at all operations. By adhering to these rules, we work to ensure the safety and well-being of our employees, helping to guarantee that everyone can return home unharmed. Employee engagement and accountability are key components of our safety culture. If any employee has a question about the rules, they are encouraged and expected to speak up. » Employee Engagement. At GreenWaste, we value our employees' voices and have created multiple engagement platforms to ensure their ideas and views are heard. The Good Catch Program allows employees to report good catches or near misses, either anonymously or by name. Employees can submit reports via QR code or a form, which are then entered into our online system for appropriate teams to address and prevent safety incidents. Training and development are crucial to ensuring that employees understand their responsibilities and job duties while performing their tasks safely and efficiently. We offer in-house training, safety videos, and certified external trainers to teach employees how to perform their daily functions correctly. Employees are always encouraged to speak up if they are uncertain about a task. We also have RedFlag, an anonymous hotline, which encourages employees to report concerns or misconduct without fear of retaliation, fostering a safer and more transparent workplace.
» Communication and training. SafeTV is an employee engagement platform that provides health and safety moments, HR news, and other helpful information. It includes custom announcements and videos with company-wide messaging, and content is updated weekly to ensure employees have access to the latest information. » Potential Hazard Identification and Continuous Improvement. We use ProcessMap software to document inspections that identify potential hazards, including unsafe conditions or acts. Findings are shared with other sites to correct potential hazards, thereby making the workplace safer.
d. Traffic Control and Direction
GreenWaste will construct and maintain roads, leading from the facility entrance to the scale house and then to the designated point of unloading. Employees will direct on-site traffic to the appropriate unloading areas. Traffic will be directed in accordance with GreenWaste’s existing safety policies, to ensure a safe working environment for all users, visitors, and employees of the Zanker facility. GreenWaste will facilitate safe and efficient traffic flow through the use and maintenance of existing roadways and signs, as well as designated personnel. GreenWaste will use commercial efforts to maintain a Maximum Vehicle Turnaround Time (“MVTT”) of thirty (30) minutes for Collection Contractor’s delivery of Delivered Materials to the Zanker facility. Impacts to MVTT which are outside of GreenWaste’s control, such as untarping and unloading time, will not count towards the thirty (30) minutes.
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GreenWaste Proposal for Construction and Demolition Debris Processing and Solid Waste Disposal 21 e. Scale Operation
GreenWaste ensures to comply with the requirements of Draft Agreement Section 4.09; maintaining motor vehicles scales and associated equipment and software, obtaining vehicle tare weights for collection company vehicles with periodic updating, arranging for use of substitute scales, testing and calibrating scales, weighing and recording weights for all inbound vehicles delivering materials, weighing and recording weights for all outbound vehicles transporting recovered materials to market or secondary processing, and residue to the approved disposal facility, paying disposal rates, and maintaining scale records. » Maintenance and Operation. GreenWaste will maintain at least two (2) State-certified motor vehicle scales at the Zanker facility in accordance with Applicable Law. GreenWaste will link all scales to a centralized computer recording and billing system that will be compatible with GreenWaste’s systems and account for tracking all incoming and outgoing materials.

GreenWaste will operate those scales during the Zanker facility’s receiving hours established in the Draft Agreement.
» Vehicle Tare Weights. When Collection Contractor places new vehicles into Service, GreenWaste will promptly weigh the new vehicle and determine its unloaded (tare) weight.

GreenWaste will record tare weight, hauler name, and vehicle identification number. Within ten (10) Working Days of weighing, GreenWaste will provide City and Collection Contractor with a report listing vehicle tare weight information. GreenWaste will have the right to request re-determination of tare weights of vehicles twice each Calendar Year. If there is reasonable suspicion or evidence that tare weights are not accurate, Collection Contractor may request re-determination of tare weights, in which case GreenWaste will promptly redetermine tare weights for requested vehicles up to four (4) times per Calendar Year.

GreenWaste may update tare weights (at its own initiative) more frequently. » Substitute Scales. If any scales are inoperable, being tested, or otherwise unavailable, GreenWaste will use Reasonable Business Efforts to weigh vehicles on the remaining operating scales. To the extent that all the scales are inoperable, being tested, or otherwise unavailable, GreenWaste will substitute portable scales until the permanent scales are replaced or repaired. GreenWaste will arrange for any inoperable scale to be repaired as soon as possible and, in any event, within seventy-two (72) hours (excluding Holidays) of the failure of the permanent scale. If repairs to the permanent scale are projected to take more than twelve (12) hours, GreenWaste will immediately obtain a temporary substitute scale(s).
» Estimates. Pending substitution of portable scales or during power outages, GreenWaste will estimate the Tonnage of City’s Delivered Materials delivered to the Zanker facility by utilizing the arithmetic average of each vehicle's recorded Tons of the Delivered Materials delivered on its preceding three (3) deliveries, on the same Day of the week, to the Zanker facility. All information required by Section 4.09.G of the Draft Agreement will continue to be recorded for each delivery of Delivered Materials to the Zanker facility and each Transported load of Delivered Materials during any period the scales are out of Service. 322
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GreenWaste Proposal for Construction and Demolition Debris Processing and Solid Waste Disposal 22 » Testing. GreenWaste tests and calibrates all scales in accordance with Applicable Law, but at least every twelve (12) months. Upon City request, GreenWaste will promptly provide City with copies of test results. GreenWaste will further test and calibrate any or all scales within three (3) Working Days of City direction. If test results indicate that the scale or scales complied with Applicable Law, City will reimburse GreenWaste the Direct Costs of the tests.

If the test results indicate that the scale or scales did not comply with Applicable Law, GreenWaste will bear the costs thereof and will at its own cost adjust and correct, consistent with the results of that test, all weight measurements recorded and Per-Ton Rates calculated, charged, and paid, as the case may be, from the date of City’s direction. » Weighing Standards and Procedures. GreenWaste will use the Zanker facility’s entry scale(s) located at the scale house to weigh vehicles and charge Per-Ton Rates.

GreenWaste scale house personnel will be responsible for inspecting the Solid Waste delivered to the Zanker facility. GreenWaste will charge the Per-Ton Rates based on the Tonnage of City’s Delivered Materials delivered by the Collection Contractor to the Zanker facility. GreenWaste will weigh and record inbound weights of all Collection Contractor’s vehicles when the vehicles arrive at the Zanker facility and weigh and record outbound weights of vehicles for which GreenWaste does not maintain tare weight information.

GreenWaste will provide each driver with a receipt showing the date, time, and quantity of City’s Delivered Materials that the vehicle delivered to the Zanker facility and the Per-Ton Rate charged, therefore.
» Records. GreenWaste will maintain scale Records and reports that provide information including date of receipt, inbound time, inbound and outbound weights of vehicles, vehicle identification number, jurisdiction of origin of materials received, type of material, hauler identification and/or classification, type, weight, and destination of outbound materials. f. Material Processing
All material will enter the Facility via the Inbound Scales. Once the material is weighed, material is then directed to a designated tipping floor area based on material classification. Materials such as dirt, inerts, Construction and Demolition Material, furniture, appliances, e-waste, tires, as well as landscape and gardening debris will receive a material classification. The Facility Scale House operators are trained on material description codes to identify incoming materials. There is a second point of Quality control that verifies material was identified correctly before tipping. We will designate specific areas for each type of material to prevent contamination and facilitate streamlined processing and accurate diversion reporting.

The Advanced C&D Processing System at Site 2 will be the operation primarily used to process the City’s materials, and in case of breakdown of the line, materials may be directed over to the Demolition Recycling Operation at Site 1.

What follows are procedures for material processing at the Advanced C&D Processing System » All material will enter the Zanker facility via the scale houses. Once the material is classified as mixed C&D and weighed, the material is then directed to a designated location on the tipping floor area for the Advanced C&D Processing System. 323
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GreenWaste Proposal for Construction and Demolition Debris Processing and Solid Waste Disposal 23 » After customers have disposed of their load, the materials will be pushed with a wheeled loader to a pre-sort excavator near the start of the Advanced C&D Processing System and will remove large pieces of metal, concrete, and non-recyclable products, such as carpeting and fabric. After material is pre-sorted, the excavator then loads the material into a Komptech Terminator 5000 SE Shredder at the rate of 60 tons per hour. » These shredded materials are conveyed to a Komptech 10300 Ballistic Separator where the materials will be separated into three fractions. The smaller fraction from the ballistic separator 5-inch minus, will travel up a conveyer and past a belt magnet to remove the ferrous metals. Materials larger the 5 inches remain on the top of the ballistic separator and are separated into 2D (two dimensional) and 3D (three dimensional) stream of materials. » The 2D materials will drop to a transfer conveyor where recoverable materials such as wood, papers, metals, etc. can be recovered by sorters. The operation uses a positive sort, thus only removing commodities that have a market. Residuals are conveyed to the end of the line, where they fall into a bunker. These materials are then directed for disposal. » The 5-inch minus fraction will then fall onto a debris roll screen, removing the 2 inch minus fraction. These 2” minus materials are then conveyed to a trommel screen where the ¼” minus is removed. These materials will fall into a bunker below, then the fines will be marketed to farmers within California as a soil amendment. The 2”x5” fraction (mainly wood waste and concrete) are then conveyed into a larger Air Drum Separator that divides the material by density.
» The Air Drum Separator separates the lights from the heavies. The lighter material will fall off the end of the conveyor belt into a bunker and will be used as alternative daily cover. The heavier materials from the air separator that consist of concrete, brick, tile, asphalt, glass, rock, and ceramics will fall into a bunker below the air separator and then are directed to the Zanker Concrete Crushing Operation to be reprocessed and made into a base rock product. A second, larger Air Drum Separator divides material by density. The lighter fraction consisting of wood, insulation, roofing felt, etc. drops on a conveyor and is directed to a bunker and will be used as alternative daily cover.

What follows are procedures for material processing at the Demolition Recycling Operation:
» All material will enter the Zanker facility via the scale houses. Once the material is classified as mixed C&D and weighed, the material is then directed to a designated location on the tipping floor area for the Demolition Recycling System. » Prior to loading the in-feed conveyor, an excavator will remove large pieces of metal, concrete, and non-recyclable products, such as carpeting and fabric. An Excavator operator will then feed the material into a hopper which conveys the materials into a large finger screen that removes the five inch minus fraction materials. » The larger materials pass over the screen and head up to a sorting station, where concrete, metals and residuals are removed. The remaining material on the sort line is lumber, which is directed to facility’s wood recycling operations.
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GreenWaste Proposal for Construction and Demolition Debris Processing and Solid Waste Disposal 24 » The smaller fraction from the large finger screen five inch minus materials are conveyed past a magnet that removes ferrous metals, and into a debris roll screen, which removes the two inch minus fraction.
» This material is then transported to a stockpile, where they are shipped to another landfill to use as cover material.
» The larger fraction of materials from the debris roll screen, mainly wood waste and concrete, are then conveyed into two Nihot Air Separators that separate the material by density. The Demolition Recycling Operation has 4 Nihot Air Separators to ensure proper separation.
» The lighter material from the separation, usually wood waste, falls on another conveyor and in front of sorting stations, where employees remove contamination, such as plastics. This leaves mainly wood waste on the conveyors.
» The heavier materials, mainly concrete, fall on a sorting conveyer. This conveyer passes in front of an employee, who removes non-wanted items, thus the concrete is clean enough to be used in our base rock production.

The commodities produced from materials recovered from Construction and Demolition Debris and inerts are approximately 95% (by weight) marketed locally, thus marketing efforts are focused on final users of the products rather than brokers. GreenWaste’s markets the following products recovered from processing activities:

Product Domestic Export Notes
Wood Wastes - Cogeneration Fuel 100% 0% Remaining after mulch production
Wood Wastes - Soil Amendments 100% 0% Produced from 100 percent recycled wood and tree
trimmings
Wood Wastes - Mulch 100% 0% Produced from recovered
wood
Asphalt Shingles - Cleaned 100% 0% Working to develop
specifications to use in new
roads
Carpet/Carpet Pad 100% 0% Non-contaminated and dry
PCC and carpet pad
Processed Fines 100% 0% Screened from ADC materials
Contain high ratio of gypsum
Sand, Gravel and Base Rock 100% 0% Produced from crushed concrete and asphalt
concrete products
Screened Soil 100% 0% Used in soil blends at the
materials yard
Tires 100% 0% Recycled into other
rubberized products
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GreenWaste Proposal for Construction and Demolition Debris Processing and Solid Waste Disposal 25 Regarding carpet please note, to be recycled, it must be brought into the Zanker facility in the following conditions:
» Carpet must be dry.
» Carpet must be free of debris.
» Carpet must have tack strips, nails, trash, and dirt removed. » Carpet must be cut into manageable sections.
» Carpet must be separated from pad.
» Carpet must be rolled.
» Carpet pad must be rolled or folded.
» Carpet tile must be stacked.

Other end markets include ADC, Aluminum, Brass, Copper, Dirt, Drywall, Ferrous Metals, Lab Glass, Pallets, Porcelain, Scrap Metals, Stones and Bricks.

What follows are materials categorized as residue. Non-recyclable items may include pressuretreated wood, laminated wood, painted wood, sawdust, insulation, PVC pipes, film plastics and other packing materials, asphalt roofing, roofing felt, roofing insulation, fiberglass insulation, vinyl flooring, ceiling tiles, stucco, soil, asphalt, windows, doors, carpeting, carpet padding, furniture, cabinets, sinks, furniture and Styrofoam, crushed materials, mattresses, rubber tiles, ground rubber materials, textiles and linen, couches, chairs, desks, office partitions, signs, foam board, cabinets, wet materials, Visqueen, composite type materials and or materials contained in trash bags. g. Post-Processing
After the initial processing, GreenWaste further refines wood chips and fines. The wood chips are colored with a non-toxic dye, safe for children and pets, to create a variety of mulches available at the GreenWaste Zanker Landscape Materials Yard. These mulches are ideal for both residential and commercial landscaping, offering an environmentally friendly and safe option for all applications. GreenWaste also blends wood fines with compost, organic matter, and specific nutrients to create a range of soil amendments tailored to various needs. These products are designed for Bay Area farmers looking to enrich their fields, contractors seeking sustainable landscaping solutions, and residential gardeners aiming to enhance their gardens' health and vitality. GreenWaste provides sustainable products that improve soil quality and contribute to a circular economy, turning waste into valuable resources for the community. h. Disposal and Residue
» Diversion Tracking. At our facility, we determine and track the overall diversion rate through a systematic process that begins with the weighing of all incoming and outbound trucks at the scale house. Each incoming load is assigned a material description classification, which is linked to a specific processing line. Each processing line has a pre-established diversion rate that reflects its efficiency in diverting material from disposal. We closely monitor the performance of each processing line by tracking the amount of residue generated at each stage. This data is then compiled and reported monthly, detailing the incoming tonnage and the outbound residue. These monthly reports are submitted to the Recycling Certification 326
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GreenWaste Proposal for Construction and Demolition Debris Processing and Solid Waste Disposal 26 Institute (RCI), an independent third party that verifies the accuracy of our diversion rates.

By maintaining detailed records of both incoming materials and outbound residues, we ensure that our diversion rates are accurate and that we are effectively tracking end markets. This rigorous approach allows us to optimize our operations and uphold our commitment to responsible waste management.
» Residue Disposal. GreenWaste will transport and dispose of residue with acceptable levels of prohibited contaminants in accordance with Section 4.02 of the Draft Agreement.

Residue from GreenWaste’s Processing of Delivered Materials will be Transported and Disposed of by GreenWaste at Disposal Facility(ies) selected by GreenWaste. Residue delivered for Disposal will not include any Excluded Waste. GreenWaste will pay for the Transportation and Disposal costs of all Residue.
i. Recovered Material Marketing
GreenWaste ensures to market C&D Materials that are delivered for Processing. GreenWaste’s marketing strategy will promote the highest and best use of materials presented in the waste management hierarchy established by AB 939. Where commercially reasonable, the marketing strategy will include the use of local, regional, and domestic markets for C&D Materials.

GreenWaste will use and build on its existing network of vendors to sell commodities and achieve the highest market value for each commodity. GreenWaste will remove contamination and market the cleanest possible outbound products, ensuring the highest quality end products. GreenWaste maintains complete and accurate marketing records, including tonnage of marketed material, price, revenue received, purchasers and specified end-uses. j. Alternative Facility
GreenWaste will utilize alternative facilities, if needed, in accordance with the requirements and limitations in Draft Agreement Section 4.12.
» Alternative Facility for Reasons other than Uncontrollable Circumstances. If GreenWaste does not process City’s Delivered Materials at the Zanker facility for reasons other than Uncontrollable Circumstances, then following City approval given in City’s sole discretion, GreenWaste will: (i) receive, Accept, and process City’s Delivered Materials at another facility owned by it or an Affiliate at a price not to exceed the Per-Ton Rate in effect under the Draft Agreement and pay City for any additional Transportation costs incurred by City or Collection Contractor in delivering City’s Delivered Materials to the other facility, or (ii) arrange for City’s Delivered Materials to be processed at another facility not Owned by it or an Affiliate, in which case GreenWaste will pay any difference in the per-ton rate charged at that processing location compared to the Per-Ton Rate plus any additional Transport costs incurred by City or Collection Contractor in delivering the all tons of Delivered Materials to the processing facility.
» Alternative Facility for Uncontrollable Circumstances. If GreenWaste does not process City’s Delivered Materials at the Zanker facility due to Uncontrollable Circumstances, then promptly upon City direction GreenWaste will, to the extent it is legally able to do so in accordance with Applicable Law, receive, Accept, and process Delivered Materials at another processing facility owned by it or an Affiliate at a per-ton rate not to exceed the PerTon Rate in effect under this Agreement. GreenWaste is not obligated to pay for any additional Transport costs incurred by City or Collection Contractor in delivering City’s 327
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GreenWaste Proposal for Construction and Demolition Debris Processing and Solid Waste Disposal 27 Delivered Materials to the other facility. GreenWaste understands that if City does not so direct GreenWaste, City may in its sole discretion terminate this Agreement as provided in accordance with Section 7.02 of the Draft Agreement
» Alternative Facility(ies). In the event of Contract Award, GreenWaste understands it will propose, and City will approve use of the Alternative Facility(ies). GreenWaste understands it will be solely responsible for ensuring continued availability of City-approved Alternative Facility(ies) throughout the Term of the agreement.
k. Allocation Method
GreenWaste will allocate recovered materials and disposal/residue tonnages to the City versus to other facility users as provided in Draft Agreement Section 4.02.E. GreenWaste is able to track specific jurisdiction’s data through Green Halo, which enables GreenWaste to track the generation, diversion, and disposal of waste materials.
» Residue Tracking and Reporting. GreenWaste will develop and use a method of tracking and allocating Residue in such a manner that GreenWaste can demonstrate its achievement of standards for Residue levels and Diversion levels specified in Section 4.02.B of the Draft Agreement. The Residue level calculation method will be reviewed and approved by City. At a minimum, GreenWaste will separately track, and report tons diverted by product type and tons of Residue Disposed. GreenWaste will report Residue levels and Diversion levels pursuant to Section 4.14. of the Draft Agreement.

Diversion
a. Diversion Information
GreenWaste is committed to exceeding CALGreen requirements by consistently achieving a diversion rate of over 65% and meticulously maintaining records that can be provided to the City upon request. GreenWaste takes pride in our
rigorous tracking and verification processes for
diversion and tonnage data, ensuring accuracy and
transparency, as described in the Operations Plan h.

Disposal and Residue section above. Over the past
three years, GreenWaste has monitored operations
and made adjustments aimed at increasing our diversion rate, which have resulted in measurable improvements. We have completed a rigorous recertification process for both of our GreenWaste Zanker Resource Recovery Facilities (Site 1 and Site 2) through the Recycling Certification Institute.

This certifies not only our facilities as a whole, but also the individual processing lines, allowing us to offer diversion reporting for both source-separated C&D materials and commingled C&D materials processed at these locations. Additionally, GreenWaste is dedicated to finding sustainable end uses for processed C&D materials. This includes identifying the types and total tons of materials that are used as ADC or Alternative Intermediate Cover (“AIC”), as outlined in Section 3.2 of the Draft Agreement. Please refer to Operations Plan – f. Materials Processing section above for details on end markets.
12-month average ADC tonnage from
the Demolition Recycling Operations:
49,557
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GreenWaste Proposal for Construction and Demolition Debris Processing and Solid Waste Disposal 28 b. Diversion Rates
GreenWaste has included the following in Sheet 4.a. of Attachment A:
» The Zanker facility’s overall facility diversion rate (including ADC/AIC), as well as its diversion rate in which material used as ADC and AIC is considered disposal and not included as diversion, as further described in Section 3.2 of the Draft Agreement. » The certification body that has certified both of the reported C&D diversion rates described above.

Expansion and/or Permit Modifications
The Zanker facility has no proposed or planned facility changes, expansion plans and/or permit modification processes that impact the services outlined in response to this RFP.

Additional Features
GreenWaste is offering the City of Cupertino Bulky item processing services at the rate proposed on Appendix L C&D Materials Processing Services Pricing Sheet. Bulky Items will be processed through the DM Reduction System at Zanker Resource Recovery Facility - Site 2. In the event the City brings in material that is classified as Bulky Items, those materials will be processed through the DM Reduction System and receive a diversion rate of 40% with ADC and 9% without ADC. The diversion rate will vary as inbound material composition determines the diversion rate. The current 12-month diversion rate is 47.15% with ADC and 17.73% Without ADC DM Reduction System: This processing line processes bulky items like furniture and white goods using the DM Reduction System. Appliances like refrigerators are removed on the tip pad and are processed by certified recyclers for Freon and mercury removal. Remaining bulky items are processed in an electric SSI Shredder. The shredded material undergoes separation through magnets and a trommel screen, producing 1" minus ADC materials and 4" minus fines. The heavies (glass, metals, wood) are marketed as ADC, while lights (paper, plastic) are disposed of in a landfill or further processed for maximum recovery. Materials larger than 4 inches go to a sort line where recoverable items are weighed and sent to recyclers. Residuals are sent to a nearby landfill.

All processed materials are recorded to meet Recycling Certifications Institutes' 3rd party certification requirements, with a current diversion rate of 40%.

Other Technical Information
Regulatory Compliance
GreenWaste has provided, Appendix G Regulatory Compliance Attachment, which includes a list of contact names for regulatory agencies that monitor compliance for the Zanker facility, with applicable local, State, and federal laws and regulations, including the name(s) of the regulatory agency, contact person’s title, and telephone number.
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Emergency Services
GreenWaste has implemented a comprehensive Disaster Preparedness Plan to address major accidents, disruptions and natural calamities that may affect its facilities, including the Zanker facility and the GreenWaste MRF. The plan is designed to ensure continuity of operations, protect personnel, and minimize disruptions to the City and surrounding cities during disaster events.

GreenWaste's disaster response procedures are designed to ensure that even in the face of significant disruptions, the company can continue to provide essential services and support the City and surrounding cities during their recovery efforts.

Facility Protection and Preparedness
GreenWaste takes proactive steps daily to protect its facilities from potential disasters. These actions include:
» Conducting preventive maintenance routines to ensure equipment reliability. » Performing regular site inspections and addressing all open items promptly. » Keeping facility records and manuals up to date and readily accessible. » Ensuring all door locks are serviceable.
» Verifying the integrity of facility fencing and gates. » Ensuring facility lights and surveillance cameras are in working order.

Response to Facility Damage
In the event that a disaster damages a facility, the GreenWaste Crisis Management Team (“CMT”) will be immediately notified by phone or through local authorities. The CMT's ability to respond will be adapted to the scale of the disaster, and all reasonable efforts will be made to implement the Disaster Preparedness Plan. Coordination with State Emergency Centers and local authorities will be essential in gaining access to the facilities, with waivers and direction provided based on the type of disaster.

After notification of the disaster, the CMT will conduct a thorough damage assessment as soon as it is safe. The assessment will guide the development of a response plan, including whether to deploy additional teams or logistics support. Depending on the severity of the damage, GreenWaste may:
» Move critical operations to an alternative location.
» Focus on restoring equipment to working order if the facility is stable. » Reroute circuits to bypass the facility if it is unusable. » Prohibit access to the facility if it is determined to be unsafe or destroyed.

Security measures will be coordinated with federal, state, and local authorities to protect the facility from loitering, vandalism, and theft after a disaster. If necessary, GreenWaste may contract an outside security firm for additional support.

Handling Disaster Materials
Should the City or surrounding cities deliver disaster materials to the Zanker facility, GreenWaste is prepared to accept and handle these materials in accordance with established practices. All disaster materials will be transferred to a landfill for disposal, and GreenWaste may subcontract with additional disposal facilities depending on the volume of materials received.

Exhibit B-2 Disaster Plan
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Documentation and Continuous Improvement
All phases of the facility recovery operation will be meticulously documented and reported through the GreenWaste SIMS Portal, powered by ProcessMAP. This includes incident claims, timelines, response actions, investigation details, root causes, and corrective action items. Reports will be used to assess the effectiveness of the response plan and identify opportunities for improvement in disaster preparedness.
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49988410.1

AGREEMENT
between the

CITY OF CUPERTINO
and
INTERNATIONAL DISPOSAL CORP. OF CALIFORNIA, INC.
for

SOLID WASTE DISPOSAL SERVICES
June 2025
Attachment B
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49988410.1
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DRAFT July 2024 i City of Cupertino/ _____________ Agreement 49988410.1

2.01 Effective Date ....................................................................................................... 2

2.02 Term And Extensions ............................................................................................. 2

2.03 Survival of Certain Provisions.................................................................................. 3 ARTICLE 3. OBLIGATIONS OF CITY........................................................................... 3

3.01 Facility Designation................................................................................................ 3

3.02 City Direction of Material........................................................................................ 3

4.01 Acceptance of Delivered Materials; Limitations and Exclusions; Subcontractors............ 4

4.02 Facility Service Specifications.................................................................................. 6

4.03 Permits................................................................................................................. 7

4.04 Ownership of Delivered Materials ............................................................................ 8

4.05 Rejection of Unpermitted and excluded Waste.......................................................... 8

4.06 Days and Hours of Operation.................................................................................. 9

4.07 Equipment and Supplies......................................................................................... 9

4.08 Traffic Control and Direction................................................................................... 9

4.09 Scale Operation................................................................................................... 10

4.10 Personnel ........................................................................................................... 11

4.11 Safety ................................................................................................................ 12

4.12 Alternative Facility(ies)......................................................................................... 12

4.13 Invoicing and Monthly Report............................................................................... 12

4.14 Reporting ........................................................................................................... 13

4.15 Due Diligence...................................................................................................... 14

4.16 Closure and Post-Closure of Facility....................................................................... 14

4.17 Right to Enter Facility and Observe Operations....................................................... 15

4.18 Reserved ............................................................................................................ 15

4.19 Service Standards................................................................................................ 15

4.20 Climate and Disaster Resiliency............................................................................. 15

4.21 Generation, Characterization, and Pilot Studies....................................................... 16

4.22 Extended Producer Responsibility Programs ........................................................... 17

4.23 Modifications to Scope of Service .......................................................................... 18 ARTICLE 5. CONTRACTOR COMPENSATION............................................................. 19

5.01 General .............................................................................................................. 19

5.02 Per-Ton Rate ...................................................................................................... 20

5.03 Per-Ton Rate Adjustments.................................................................................... 20

5.04 Extraordinary Rate Adjustments............................................................................ 23

5.05 Payment of Government Fees............................................................................... 24

5.06 Payment of Taxes................................................................................................ 24 ARTICLE 6. INDEMNITY AND INSURANCE .............................................................. 24

6.01 Indemnification ................................................................................................... 24

6.02 Insurance ........................................................................................................... 27 334
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DRAFT July 2024 ii City of Cupertino/ _____________ Agreement 49988410.1
ARTICLE 7. DEFAULT BY CONTRACTOR AND TERMINATION .................................. 29