Gallon Equivalent factors for each cart size are calculated as the ratio of gallon size divided by 35 and are shown in the table below. In 2018, the total number of 35-Gallon Equivalents was calculated at 59,280.
Trash Cart Size 35-Gallon
Equivalents
20-gallon 0.57
35-gallon 1.00
60/65-gallon 1.86
95/101-gallon 2.79
For the Commercial Sector, the annual cubic yards are calculated as twelve (12) times the total commercial cubic yards per month on September 30. For the 2018 rate calculation, this number was 30,708 times 12, yielding 368,500 annual cubic yards.
For the Industrial Sector, the annual tons are the total industrial of Solid Waste (Trash), Dry Waste and C&D as shown in Step 2 (33,098.54 tons)
FORMULAS:
Residential Sector
Total Number of 20-gallon Trash carts TIMES 0.57 PLUS
Total Number of 35-gallon Trash carts PLUS
Total Number of 60/65-gallon Trash carts TIMES 1.86 PLUS Total Number of 95/101-gallon Trash carts TIMES 2.79 EQUALS Residential Sector Unit Basis
Commercial Sector
Total Number of Commercial Cubic Yards per Month TIMES 12 EQUALS Commercial Sector Unit Basis
Industrial Sector
Industrial Sector Total Tons of Trash, Dry Waste and C&D EQUALS Industrial Sector Unit Basis
167
Exhibit B to May-June JEPA Draft
2018 SAMPLE CALCULATION:
Residential Sector
8,486 20-gallon carts X 0.57 = 4,849 35-Gallon Equivalents + 47,197 35-gallon carts X 1 = 47,197 35-Gallon Equivalents + 3,000 60/65-gallon carts X 1.86 = 5,571 35-Gallon Equivalents + 597 95/101-gallon carts X 2.79 = 1,663 35-Gallon Equivalents = 59,280 35-Gallon Equivalents as Residential Unit Basis
Commercial Sector
30,708 cubic yards X 12 = 368,500 Annual Cubic Yards as Commercial Sector Unit Basis Industrial Sector
33,098.54 tons as the Industrial Sector Unit Basis
Step 4: Calculate the Post-Collection Rate Per Sector
DESCRIPTION:
For the Residential Sector, the base Post-Collection Rate is calculated for the 35-Gallon Trash cart as the Residential Sector Revenue Requirement, divided by the Residential Sector Unit Basis, divided by 12 months. The Post-Collection Rates for the 20-Gallon, 65-Gallon and 95/101-Gallon Trash carts are calculated based on the percentage increase in the 35-Gallon Post-Collection Rate for the coming rate year times the 20-Gallon, 60/65-Gallon and 95/101-Gallon Post-Collection Rates in the current rate year.
For the Commercial and Industrial Sectors, the Post-Collection Rate is simply the Revenue Requirement for each sector divided by the Unit Basis for each sector.
FORMULAS:
Residential Sector
Residential Sector Revenue Requirement DIVIDED BY
Residential Sector Unit Basis DIVIDED BY
12 EQUALS
Coming Rate Year 35-Gallon Post-Collection Rate
168
Exhibit B to May-June JEPA Draft
Coming Rate Year 35-Gallon Post-Collection Rate DIVIDED BY Current Rate Year 35-Gallon Post-Collection Rate MINUS
Percentage Increase in the 35-Gallon Post-Collection Rate
20-Gallon, 60/65-Gallon, and 95/101-Gallon Current Rate Year Post-Collection Rates TIMES Percentage Increase in the 35-Gallon Post-Collection Rate EQUALS Coming Rate Year 20-Gallon, 60/65-Gallon and 95/101-Gallon Post-Collection Rates Commercial Sector
Commercial Sector Revenue Requirement DIVIDED BY
Commercial Sector Unit Basis EQUALS
Commercial Per-Cubic Yard Post-Collection Rate
Industrial Sector
Industrial Sector Revenue Requirement DIVIDED BY
Industrial Sector Unit Basis EQUALS
Industrial Per Ton Post-Collection Rate
2018 SAMPLE CALCULATION:
Residential Sector
$6,337,578.32 / 59,280 35-Gallon Equivalents / 12 = $8.91 Coming Rate Year 35-Gallon Post- Collection Rate
$8.91 / $8.52 Current Rate Year 35-Gallon Post-Collection Rate = 104.56% Annual Increase in 35-Gallon Post-Collection Rate
$4.86 Current Year 20-Gallon Post-Collection Rate X 104.56% = $5.08 Coming Rate Year 20- Gallon Post-Collection Rate
$15.85 Current Year 60/65-Gallon Post-Collection Rate X 104.56% = $16.57 Coming Rate Year 60/65-Gallon Post-Collection Rate
169
Exhibit B to May-June JEPA Draft
$23.78 Current Year 95/101-Gallon Post-Collection Rate X 104.56% = $24.86 Coming Rate Year 95/101-Gallon Post-Collection Rate
Commercial Sector
$3,561,051.74 / 368,500 = $9.66 Commercial Per Cubic-Yard Post-Collection Rate A commercial customer with a two-yard container, picked up once per week, pays $83.72 per month in Post-Collection Rates based on:
$9.66 Commercial Per Cubic Yard Post-Collection Rate X 2 cubic yards per week X 52 weeks per year / 12 months = $83.72 per month in Commercial Post-Collection Rates Industrial Sector
$4,639,330.83 / 33,098.54 = $140.17 Industrial Per Ton Post-Collection Rate An industrial customer with a thirty (30) yard container with contents weighing 5 tons would pay $700.85 each time the container is serviced based on:
$140.17 Industrial Per Ton Post-Collection Rate X 5 = $700.85 in Industrial Post-Collection Rates
170
Appendix D
AGREEMENT
between the
WEST CONTRA COSTA INTEGRATED WASTE
MANAGEMENT AUTHORITY
and
WEST COUNTY RESOURCE RECOVERY, INC.;
WEST CONTRA COSTA SANITARY LANDFILL, INC.;
GOLDEN BEAR TRANSFER SERVICES, INC.;
RICHMOND SANITARY SERVICE, INC.; AND,
KELLER CANYON LANDFILL COMPANY, INC.
for
POST-COLLECTION RECYCLING, AND DISPOSAL
SERVICES
October 10, 2013
171
Appendix D
i
TABLE OF CONTENTS 1
RECITALS, DETERMINATIONS, AND FINDINGS .................................................... - 1 - 3 ARTICLE 1 DEFINITIONS .......................................................................................... - 4 - 4 ARTICLE 2 TERMS OF AGREEMENT ...................................................................... - 5 - 5
2.1 Effective Date .............................................................................................. - 5 - 6
2.2 Term ............................................................................................................ - 5 - 7
2.3 Survival of Certain Provisions ..................................................................... - 5 - 8
2.4 Conditions to Effectiveness of Agreement................................................... - 6 - 9 ARTICLE 3 OBLIGATIONS OF THE AUTHORITY .................................................... - 9 - 10
3.1 Facility Designation ..................................................................................... - 9 - 11
3.2 No Tonnage Obligation or Limit on Waste Prevention ................................ - 9 - 12 ARTICLE 4 OBLIGATIONS OF CONTRACTOR...................................................... - 10 - 13
4.1 Scope of Services ..................................................................................... - 10 - 14
4.2 Permits ...................................................................................................... - 14 - 15
4.3 Facility Specifications ................................................................................ - 14 - 16
4.4 Ownership of Authority Materials .............................................................. - 16 - 17
4.5 Rejection of Unpermitted Waste at Landfill ............................................... - 16 - 18
4.6 Approved Facility and HHW Facility Days and Hours of Operation ........... - 17 - 19
4.7 Equipment and Supplies ........................................................................... - 17 - 20
4.8 Traffic Control and Direction ...................................................................... - 17 - 21
4.9 Scale Operation ........................................................................................ - 17 - 22
4.10 Personnel .................................................................................................. - 19 - 23
4.11 Safety ........................................................................................................ - 19 - 24
4.12 Alternative Facilities .................................................................................. - 19 - 25
4.13 Invoicing .................................................................................................... - 20 - 26
4.14 Quarterly and Annual Reports ................................................................... - 20 - 27
4.15 Change in Applicable Law Affecting Rates................................................ - 22 - 28
4.16 Closure and Post-Closure of Landfill ......................................................... - 22 - 29
4.17 Right to Enter Facility and Observe Operations ........................................ - 23 - 30
4.18 Provision of Emergency Services .............................................................. - 23 - 31
4.19 Service Standards ..................................................................................... - 24 - 32
4.20 Modifications to Scope of Service ............................................................. - 24 - 33
4.21 Triennial Review of 75% Recycling Goal................................................... - 26 - 34 ARTICLE 5 CONTRACTOR COMPENSATION ....................................................... - 28 - 35
5.1 General ..................................................................................................... - 28 - 36
5.2 Initial Rate ................................................................................................. - 28 - 37
5.3 Annual Adjustments to the Rate ................................................................ - 32 - 38
5.4 Establishment of Post-Collection Rate ...................................................... - 37 - 39
5.5 Other Adjustments to Compensation ........................................................ - 38 - 40 ARTICLE 6 INDEMNITY, INSURANCE, AND PERFORMANCE BOND .................. - 40 - 41 172
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ii
6.1 Defense and Indemnification ..................................................................... - 40 - 42
6.2 Insurance Policies ..................................................................................... - 42 - 43
6.3 Performance Surety .................................................................................. - 44 - 44 ARTICLE 7 DEFAULT BY CONTRACTOR AND TERMINATION ........................... - 45 - 45
7.1 Contractor Default ..................................................................................... - 45 - 46
7.2 Right to Suspend or Terminate Agreement ............................................... - 47 - 47
7.3 Right to Perform ........................................................................................ - 48 - 48
7.4 All Other Available Remedies .................................................................... - 48 - 49
7.5 Authority's Remedies Cumulative.............................................................. - 49 - 50
7.6 Waiver ....................................................................................................... - 49 - 51 ARTICLE 8 OTHER AGREEMENTS OF THE PARTIES ......................................... - 50 - 52
8.1 Relationship of Parties .............................................................................. - 50 - 53
8.2 Compliance with Law ................................................................................ - 50 - 54
8.3 Governing Law .......................................................................................... - 50 - 55
8.4 Further Assurances ................................................................................... - 51 - 56
8.5 Assignment ............................................................................................... - 51 - 57
8.6 Binding on Successors .............................................................................. - 53 - 58
8.7 Parties in Interest ...................................................................................... - 53 - 59
8.8 Services Performed At Contractor’s Sole Expense ................................... - 53 - 60
8.9 Notices and Communication ..................................................................... - 53 - 61
8.10 Authority Contract Manager ...................................................................... - 54 - 62
8.11 Duty of Contractor Not To Discriminate ..................................................... - 55 - 63
8.12 Force Majeure ........................................................................................... - 55 - 64
8.13 Maintenance of Records ........................................................................... - 55 - 65
8.14 Right to Inspect Records ........................................................................... - 56 - 66
8.15 Compilation of Information for State Law Purposes .................................. - 57 - 67
8.16 Right to Demand Assurances of Performance .......................................... - 57 - 68
8.17 Dispute Resolution .................................................................................... - 58 - 69
8.18 Criminal Activity of Contractor ................................................................... - 60 - 70
8.19 Liquidated Damages ................................................................................. - 61 - 71
8.20 Guaranty of Contractor's Performance ...................................................... - 62 - 72
8.21 Exercise of Discretionary Actions .............................................................. - 63 - 73
8.22 Jurisdiction, Venue .................................................................................... - 63 - 74
8.23 Costs and Expenses ................................................................................. - 63 - 75
8.24 Golden Bear Franchise Agreement ........................................................... - 63 - 76 ARTICLE 9 REPRESENTATIONS AND WARRANTIES OF CONTRACTOR ......... - 65 - 77
9.1 Accuracy of Representations .................................................................... - 65 - 78
9.2 Representations and Warranties Regarding Negotiation of Agreement .... - 65 - 79 ARTICLE 10 MISCELLANEOUS PROVISIONS ...................................................... - 67 - 80
10.1 Exhibits...................................................................................................... - 67 - 81
10.2 Section Headings ...................................................................................... - 67 - 82
10.3 Interpretation and Construction ................................................................. - 67 - 83
10.4 Amendment ............................................................................................... - 68 - 84 173
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iii
10.5 Severability ................................................................................................ - 68 - 85
10.6 Costs of Enforcing Agreement .................................................................. - 68 - 86
10.7 Authority .................................................................................................... - 69 - 87
10.8 Counterparts ............................................................................................. - 69 - 88 89 90
TABLE OF EXHIBITS 91
92 EXHIBIT 1 Definitions 93
EXHIBIT 2.4.6 Enhanced Collection Services and Collection Franchise Agreement Amendment 94 EXHIBIT 4.1.4 Dry Material Processing 95
EXHIBIT 4.1.9 Public Education and Outreach 96
EXHIBIT 4.14 Reporting 97
EXHIBIT 6.2 Insurance 98
EXHIBIT 8.19 Liquidated Damages 99
EXHIBIT 8.19.A Performance Standards 100
EXHIBIT 8.20 Guaranty Agreement 101
EXHIBIT 10 Corporate Secretary’s Certificate 102
103
174
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This Agreement is entered into by and between the West Contra Costa Integrated Waste Management 104 Authority (Authority) and West County Resource Recovery, Inc., West Contra Costa Sanitary Landfill, 105 Inc., Golden Bear Transfer Services, Inc., Richmond Sanitary Service, Inc. (“RSS”) and Keller Canyon 106 Landfill Company, Inc. (operating subsidiaries of Republic Services, Inc. and hereinafter collectively 107 referred to as "Contractor") (together, the “Parties”) for the Transfer, Transport, Recycling, Composting, 108 and Disposal (Post-Collection Services) of Solid Waste, Recyclable Materials, Dry Materials, Organic 109 Materials, and Construction and Demolition Materials from the cities of Hercules, Pinole, Richmond, and 110 San Pablo (collectively the Member Agencies of the Authority and hereinafter referred to as "Member 111 Agencies") and certain portions of the unincorporated areas of the County of Contra Costa pursuant to 112 a franchise collection agreement between RSS and the County (that historically have been within the 113 Authority’s service area including: East Richmond Heights, North Richmond, Montalvin Manor, Tara Hills, 114 and El Sobrante) (together the Member Agencies and County are hereinafter collectively referred to as 115 “Franchise Agencies”). 116
RECITALS, DETERMINATIONS, AND FINDINGS 117
This Agreement is entered into with reference to the following facts, circumstances, determinations and 118 findings made by the Board Members of the Authority: 119 WHEREAS; the Legislature of the State of California, by enactment of the California Integrated Waste 120 Management Act of 1989 (Act) (California Public Resources Code Section 40000 et seq.), has declared 121 that it is in the public interest to authorize and require local agencies to make adequate provisions for 122 Solid Waste management within their jurisdiction; and 123 WHEREAS; the State of California has found and declared that the amount of refuse generated in 124 California, coupled with diminishing Disposal capacity and potential adverse environmental impacts 125 from landfilling and the need to conserve natural resources, have created an urgent need for State and 126 local agencies to enact and implement an aggressive integrated waste management program. The State 127 has, through enactment of the Act, directed the responsible State agency, and all local agencies, to 128 promote Diversion and to maximize the use of feasible waste reduction, re-use, Recycling, and 129 Composting options in order to reduce the amount of refuse that must be Disposed; and 130 WHEREAS, the Authority and Member Agencies entered into a Joint Exercise of Powers Agreement 131 dated April 2, 1991, (“JPA Agreement”), which JPA Agreement was amended by the parties thereto in 132 March 6, 1995; and 133
WHEREAS, on January 1, 1994, the Authority and West County Resource Recovery, Inc. entered into a 134 Service Agreement for Operation of an Integrated Resource Recovery Facility (“IRRF Service 135 Agreement”); and 136
WHEREAS, Contractor, by means of the services and facilities of Golden Bear Transfer Station, Keller 137 Canyon Landfill, West Contra Costa Sanitary Landfill and West County Resource Recovery, provides Post-138 Collection Services to the Authority through certain agreements between Contractor and the Authority; 139 and 140
175
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WHEREAS, these contracts for Post Collection Services are expiring effective December 31, 2013; and. 141 WHEREAS, In October 2012, the Authority solicited Requests for Qualifications and Statements of 142 Interest from companies in the solid waste and recycling industry for the provision of these Post-143 Collection Services. Contractor submitted its response and after consideration of the numerous 144 proposals received, on December 12, 2012, the Authority Board of Directors directed Authority staff to 145 negotiate with Contractor for the provision of these services; and 146 WHEREAS; the Authority further declares its intent to approve and maintain reasonable rates for the 147 Post-Collection Services described in this Agreement; and 148 WHEREAS; the Authority selects Contractor to provide for the Post-Collection Services, after 149 undertaking a competitive request for proposals process and having determined that Contractor’s 150 proposal provides the best overall value for the Authority rate payers, and that Contractor has the 151 requisite experience, qualifications, reputation, and capacity to carry out such services; and 152 WHEREAS; local agencies like the Authority and the Franchise Agencies have generally been held liable 153 under federal superfund laws for costs of cleaning up of Hazardous Waste sites that accepted Solid 154 Waste generated within municipalities’ jurisdictions. Therefore the Authority is prudent to provide for 155 terms and conditions of its Solid Waste Disposal in accordance with this Agreement; and 156 WHEREAS; pursuant to its police powers, obtaining a long-term commitment for Disposal of Solid Waste 157 generated within the Authority in accordance with this Agreement is in the best interests of the public 158 health, safety and wellbeing of the citizens throughout the Authority and is fiscally prudent; and 159 WHEREAS; through enactment of the Act, the State of California also recognizes the important health 160 and safety consideration to long-term planning for local governments adequate Disposal needs. The 161 State requires local governments to make adequate provision for at least fifteen (15) years of Solid 162 Waste Disposal capacity to preserve the health, safety and wellbeing of the public; and 163 WHEREAS; this Agreement also advances the objectives of the federal government to encourage 164 environmentally sound Solid Waste management (Resource Conservation and Recovery Act of 1976 165 (RCRA), 42, U.S.C. Section 6941 et. seq.); and 166
WHEREAS; the Keller Canyon Landfill is designated to be the principal Landfill for Solid Waste generated 167 throughout the Authority; and 168
WHEREAS; the Parties agree that the goal of the non-disposal services performed under this Agreement 169 is to further the recycling programs and recycling activities in support the achievement of the recycling 170 rate goal of 75% established by AB 341. The parties agree that the 75% goal is a target and not a 171 guaranteed rate; and 172
WHEREAS; this Agreement helps the Authority achieve the following goals: 173 (1) Securing rate stability over the long term and financial protection from environmental Liabilities; 174 176
Appendix D
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(2) Establishing service and performance standards to help assure that the Authority and all Franchise 175 Agencies meet their respective obligations under law and to protect and preserve the health, 176 safety, and financial assets of its citizens; 177
(3) Giving the Authority tools to monitor Contractor’s compliance with Service terms, administer Solid 178 Waste, Recyclable Materials, Organic Materials, and C&D Material management programs, and 179 enforce the Authority’s rights; and, 180
NOW, THEREFORE , in consideration of the mutual promises, covenants, guaranties, and conditions 181 contained in this Agreement and for other good and valuable consideration, the Parties agree as 182 follows: 183
184
177
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ARTICLE 1 185
DEFINITIONS 186
Unless the context otherwise requires, capitalized terms used in this Agreement shall have the meanings 187 specified in Exhibit 1 to this Agreement, which is attached hereto and incorporated by reference. 188 189
178
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ARTICLE 2 190
TERMS OF AGREEMENT 191
2.1 Effective Date 192
This Agreement becomes effective on the date that the latter of the Parties executes the Agreement or 193 the date that all of the Member Agencies have executed an amendment to their Collection Franchise 194 Agreement(s) at a minimum substantially in the form in exhibit 2.4.6, whichever is later. Except as 195 specifically provided herein, Contractor shall make all necessary preparations required to provide all 196 Services under this Agreement. 197
2.2 Term 198
The Term of this Agreement shall commence on January 1, 2014 and is set to expire on June 30, 2025. 199 Separately, and with respect to the County of Contra Costa, the term of the Agreement shall be until 200 October 13, 2023 and the County may, at its sole option, extend its participation in the Agreement 201 through the full term without any further changes required to the Agreement by providing no less than 202 thirty (30) days advanced notice in writing. The Parties may agree to extend this Agreement. 203
2.3 Survival of Certain Provisions 204
The following provisions shall survive the expiration or termination of this Agreement: 205 1) All representations and warranties; 206
2) All Indemnities and insurance requirements; 207
3) Obligations to pay any due and payable monetary amounts, or claims for those amounts, 208 including damages, any Disposal Rates, and payment of any amounts accrued and payable upon 209 termination of the Agreement in accordance with Section 7.2; 210 4) Obligations to submit and maintain Records and any reports for periods (or portions thereof) 211 concluded prior to the expiration or termination of this Agreement; and, 212 5) Any other rights and obligations of the Parties stated elsewhere in this Agreement which pertain 213 to operations conducted during the term of this Agreement including, but not limited to, the following: 214
4.2 Permits
4.3 Approved Processing Facility Specifications
4.4 Ownership of Authority Materials
4.13 Invoicing
4.14 Quarterly Report
4.16 Closure and Post-Closure of Landfill
6.1 Defense and Indemnification
6.2 Insurance Policies
179
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8.02 Compliance with Law
8.08 Services Performed At Contractor’s Sole Expense
8.13 Maintenance of Records
8.14 Right to Inspect Records
8.15 Compilation of Information for State Law Purposes
8.17 Dispute Resolution
8.22 Jurisdiction, Venue
8.23 Cost and Expenses
2.4 Conditions to Effectiveness of Agreement 215
2.4.1 New Agreement Supersedes all Others 216
Except as noted in this paragraph 2.4.1, this Agreement executed between Contractor and the Authority 217 shall completely and fully supersede and invalidate any and all prior or existing contracts, agreements 218 and any amendments or understandings between the Authority and Contractor (or specific entities of 219 Contractor), except for provisions that survive expiration or termination of any of the following 220 agreements: including the 1994 IRRF Service Agreement; the 2005 Agreement for the Transfer and 221 Transportation of Franchised Solid Waste and County Area Waste from the Golden Bear Transfer 222 Station; the 2010 Agreement for Organic Material Processing and Composting Services; the 2010 223 Agreement for Disposal of Solid Waste (Keller Canyon Landfill); and the 2013 Amendment to Extend the 224 Terms of Certain Service Agreements with the West Contra Costa Integrated Waste Management 225 Authority. Except as specifically provided in the amendments referenced in Section 2.4.6 of this 226 Agreement, nothing herein shall affect the validity or scope of any solid waste and recycling Collection 227 Franchise Agreement to which Richmond Sanitary Service, Inc. is a party. 2.4.2 Release of Claims 228 Upon the execution of the Agreement, the Contractor and the Authority agree that they shall release 229 and discharge each other from all claims they each might otherwise have against the other with respect 230 to the Authority's assertion that it has the contractual flow control right to receive and direct all Solid 231 Waste and Recyclables Collected for the Term of this Agreement pursuant to the 1994 amendment to 232 Franchise Agency Collection Franchise Agreements with the Franchised Collector for Franchise Agencies 233 in the Authority jurisdictional area. Nothing herein is intended to or shall operate as a waiver with 234 respect to such claims or any other claims. The release in this paragraph 2.4.2 is limited solely to claims 235 between Contractor and Authority and does not extend or apply to any claims of Contractor or 236 Franchise Agencies. 237
2.4.3 Environmental Review 238
Prior to the effectiveness of this Agreement, the Parties shall have satisfied all requirements for 239 environmental review under the California Environmental Quality Act, to the extent that it applies to this 240 Agreement. 241
2.4.4 Procurement Reimbursement 242
Contractor shall pay the Authority, as reimbursement for the Authority’s actual cost of procuring and 243 negotiating this Agreement, not to exceed two hundred thousand dollars ($200,000). Such payment 244 shall be made January 30, 2014 or upon the Effective Date of this Agreement whichever is later. Failure 245 180
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to timely make such payment may, in the Authority’s sole discretion, constitute a default subject to the 246 provisions of Article 7 of this Agreement. 247
2.4.5 Cost Baseline Study Reimbursement 248
Contractor shall reimburse the Authority the actual cost, up to fifty thousand dollars ($50,000), for 249 conducting a baseline review of the cost of existing collection programs and projections of the cost of 250 new collection programs provided to Franchise Agencies as part of Contractor’s proposal for the services 251 covered under this Agreement. Such payment shall be made within the latter of thirty (30) days of the 252 Authority’s execution of this Agreement or fifteen (15) days of the final report on such study being 253 issued to the Authority and Contractor. 254
2.4.6 Execution of Amendments for Collection Services 255 Prior to the effectiveness of this Agreement, the Franchise Agencies must have executed an amendment 256 to their Collection Franchise Agreement(s) substantially in the form presented in Exhibit 2.4.6. and as 257 outlined in the key elements below: 258
1. Implementation dates specified in this Agreement will remain unchanged as long as all Franchise 259 Agreement Amendments are approved no later than November 15, 2013. If one or more 260 Franchise Agreement Amendments are not approved on or before November 15, 2013, the 261 following shall apply: 262
263
a
. Franchise Agencies approving Collection Franchise Agreement amendments acceptable 264 to both parties (Contractor and the Franchise Agency) by November 15, 2013 will be 265 able to receive the benefits of the new post collection rates established in the Post-266 Collection Agreement and the Franchise Agencies’ collection rates will be adjusted by 267 the CPI provisions of the their Collection Franchise Agreement on January 1, 2014. 268 269
b. Franchising Agencies not approving Collection Franchise Agreement amendments that 270 are acceptable to Contractor and Franchise Agency by November 15, 2013 will not 271 receive the benefits in terms of the new post-collection rates established in the Post-272 Collection Agreement, but shall be required to implement any CPI adjustments as 273 required by the Collection Franchise Agreement that are scheduled for January 1, 274 2014. In the circumstance of Franchise Agencies not approving Collection Franchise 275 Agreement amendments that are acceptable to Contractor and Franchise Agency by 276 November 15, 2013, the current (2013) post-collection rates will apply in 2014 until the 277 new post collection rates are implemented within 30 days of the Collection Franchise 278 Agreement amendment is approved by that Franchise Agency. Neither Contractor nor 279 Authority will issue any credits to Franchise Agencies whose rates are not established by 280 January 1, 2014. 281
282
c. With the exception of the specific services outlined in d. below, implementation dates 283 for the required services and associated hires in the post-collection agreement will be 284 delayed a month for each successive month past November 15, 2013. For example, if all 285 of the Franchise Agencies approve the Collection Franchise Agreement amendments by 286 December 1, the implementation dates will move one month. If the Member Agencies 287 181
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approve the required franchise amendments on December 16, 2013 the 288 implementation dates will move two months out. 289
290
d. By January 1, 2014 and regardless of whether all of the Franchise Agencies have 291 approved their franchise amendment by November 15, 2013, Contractor will allow for 292 the inclusion of food scraps in the mixed residential organics containers in Franchise 293 Agencies that do not already allow this and, allow for the inclusion of the expanded 294 recyclables accepted at curbside to be included in the curbside residential recycle 295 container. 296
297
298
182
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ARTICLE 3 299
OBLIGATIONS OF THE AUTHORITY 300
3.1 Facility Designation 301
The Authority shall direct all Solid Waste Collected by Franchise Agencies’ Franchised Collector to be 302 delivered to the Approved Transfer Station and Disposed of at Keller Canyon Landfill (Landfill) (except as 303 necessitated by Section 4.12.1). 304
The Authority shall direct all Traditional and Specialty Recyclable Materials Collected by Franchise 305 Agencies’ Franchised Collector to be delivered to and Processed at the Approved Recycling Materials 306 Processing Facility. 307
The Authority shall direct all Dry Material which is Collected separately from other Solid Waste by the 308 Franchise Agencies’ Franchised Collector to be delivered to and Processed at the Approved Dry 309 Materials Processing Facility. 310
The Authority shall direct all Organic Materials Collected by Franchise Agencies’ Franchised Collector to 311 be delivered to and Processed at the Approved Organic Materials Processing Facility. 312 The Authority shall direct all Construction and Demolition (C&D) Materials Collected by Franchise 313 Agencies’ Franchised Collector to be delivered to and Processed at the Approved Construction and 314 Demolition Materials Processing Facility. 315
3.2 No Tonnage Obligation or Limit on Waste Prevention 316 Neither the Authority nor the Franchise Agencies are obligated to deliver any minimum specified 317 quantity of Solid Waste, Recyclable Materials, or Organic Materials to the Landfill or Approved 318 Processing Facilities, but the Authority is obligated to deliver any and all such franchised Solid Waste, 319 Recyclable Materials, Dry Materials, C&D Materials and Organic Materials to the Landfill or Approved 320 Processing Facilities. The Authority currently operates programs intended to reduce the amount of Solid 321 Waste for Landfill Disposal as well as to reduce the total amount of materials generated by the 322 community. Nothing in this Agreement shall prevent, penalize, or impede, in any manner, the Authority 323 in cooperation with the Contractor, when necessary, from continuing and expanding these programs or 324 developing new programs having the goal of reducing the amount of material generated within the 325 Authority service area and managed under this Agreement. The Contractor shall have the right of first 326 refusal for such activities which includes, without limitation, Niche Services. This right of first refusal 327 shall not apply to studies, education, outreach, advertising, or other activities that do not involve the 328 Processing, Transportation, Disposal, handling, or other disposition of materials covered by this 329 Agreement. 330
331
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ARTICLE 4 332
OBLIGATIONS OF CONTRACTOR 333
4.1 Scope of Services 334
4.1.1 Solid Waste Transfer and Transport 335
The Contractor shall receive the Solid Waste Collected under the Franchise Agency Collection Franchise 336 Agreements and directed to the Approved Transfer Facility by the Authority. Contractor shall load Solid 337 Waste into Transfer trailers in a manner that reasonably minimizes the volume of traffic between the 338 Approved Transfer Facility and Landfill or Approved Processing Facility. Contractor shall safely and 339 lawfully Transport all Solid Waste from the Approved Transfer Station to the Landfill or Approved 340 Processing Facility. 341
4.1.2. Solid Waste Disposal 342
Contractor shall receive, accept, and safely and lawfully Dispose of at the Landfill, the Authority-directed 343 Solid Waste delivered from the Approved Transfer Station in a manner that meets or exceeds all 344 requirements of Applicable Law including, but not limited to, the Resource Conservation and Recovery 345 Act (RCRA). 346
4.1.3. Recyclable Materials Processing 347
Contractor shall Process the Traditional Recyclable Materials Collected under the Collection Franchise 348 Agreements for all Franchise Agencies. The Approved Recycling Materials Processing Facility shall 349 separate the commingled Traditional Recyclable Materials into marketable commodity types, prepare 350 those commodities for market, and market those commodities for sale. Under no circumstances may 351 Contractor Dispose of any material Collected as Traditional Recyclable Material without first Processing 352 such material in a manner that maximizes the Recovery of marketable commodities. 353
4.1.4. Dry Material Processing 354
Contractor shall receive the Dry Material Collected under the Collection Franchise Agreements at the 355 Approved Transfer Facility and shall Transfer and Transport that Dry Material to the Approved Dry 356 Materials Processing Facility. Upon receipt at the Approved Dry Materials Processing Facility, Contractor 357 shall Process Dry Materials in a manner that Recovers no less than 50% of the Recyclable Material and 358 Organic Material constituents including use of fines generated in this processing as ADC. Contractor 359 shall sort the Recovered materials into marketable commodity types, prepare those commodities for 360 market, and market those commodities for sale. Contractor may meet and confer with the Authority 361 should moisture content of Recyclable Materials become a problem, however, the Parties acknowledge 362 that Contractor, as the Franchise Collector, has full control over the material that is included in this 363 program. Contractor shall engage the services of Cascadia Consulting Group as a subcontractor to 364 perform the services described in Tasks 1 through 3 of Exhibit 4.1.4 of this Agreement and the scope of 365 Cascadia’s work shall include characterization of no less than ten (10) routes. 366 184
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4.1.5. Organic Materials and Organics Processing 367
Contractor shall receive, accept, and safely and lawfully Process the Organic Materials collected under 368 the Franchise Agencies’ Collection Franchise Agreements at the Approved Organic Materials Processing 369 Facility. This Processing shall include, at a minimum, removing obvious contaminants, pre-processing 370 (i.e., chip and grind), and Composting the Organic Materials. Organic Materials shall be converted to 371 products for beneficial use including Compost and mulch. 372 Contractor shall provide Franchise Agencies with finished Compost and mulch products upon request at 373 no additional charge to the Franchise Agency at the Contractor’s Composting facility. Franchise Agency 374 will provide transportation to and from Contractor’s facility. This shall be limited annually to one percent 375 (1%) of the annual Organic Materials Tonnage Collected from that Franchise Agency and delivered to the 376 Approved Organic Materials Processing Facility. 377
Except as provided below for the closed West Contra Costa Sanitary Landfill (WCCSL), under no 378 circumstances may Contractor use unprocessed Organic Materials covered by this Agreement for 379 Alternative Daily Cover (ADC), intermediate cover, slope stabilization, erosion control, or any other 380 purpose at an active landfill. Such uses may be permitted at the closed/inactive WCCSL, to the extent 381 that such use prevents the importation of material to the site for that purpose. 382
4.1.6. Mixed Construction and Demolition Materials Processing 383 Contractor, in its capacity as the Franchised Collector for each of the Franchise Agencies, receives 384 customer calls for roll-off Services. The Authority will work with Franchise Agencies periodically during 385 the term of the Agreement to provide educational materials and outreach to construction contractors to 386 inform them about the availability of the Franchise Collector’s C&D recycling program. Contractor shall 387 train all customer service representatives to identify C&D boxes when work orders are placed for service 388 and to clearly identify the work order as a C&D service. All loads identified and/or placed as orders for 389 service shall be delivered by Contractor, in its capacity as the Franchised Collector, to the Approved 390 Construction and Demolition Processing Facility. 391
Contractor shall receive from any Franchise Agency’s Franchised Collector and pre-Process all identified 392 C&D loads to remove contaminants and large dimensional/non-sizeable material (e.g., very large 393 diameter tree trunks) or wet material (e.g., saturated sheet rock). Contractor shall then Process the 394 remainder of each load, using its mixed C&D sorting line or other processes in a manner that maximizes 395 the Diversion of material from the Landfill. The sorting line shall be equipped and staffed with sorters in 396 a manner adequate to consistently achieve a seventy percent (70%) Diversion rate for the material from 397 the Authority service area that is processed by this sorting line. Materials targeted for Diversion shall 398 include, but are not necessarily limited to: porcelain, cardboard, green waste, untreated wood, ferrous 399 and non-ferrous metals, concrete, brick, plastics, aggregate, wallboard, sheetrock, plaster, lath, asphalt, 400 base rock, dirt/soil, shingles, and carpet/pad. The Parties acknowledge that a significant portion of the 401 Diversion from this program is achieved by utilizing fines or unders from this process as ADC or other 402 beneficial use at a Solid Waste Disposal site. In the event of a Change in Law eliminating or significantly 403 reducing Diversion credit associated with Dry Material Processing or Mixed C&D Processing , the Parties 404 shall meet and confer regarding appropriate modifications to the Diversion rate target defined herein. 405 185
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4.1.7 Household Hazardous Waste Receiving, Processing and Disposal 406 Contractor shall contract with a vendor acceptable to the Authority for the operation of a permanent 407 Household Hazardous Waste (HHW) drop-off facility (located at 101 Pittsburg Avenue, North Richmond) 408 that shall serve the Franchise Agencies including unincorporated communities within and adjacent to 409 the Authority’s service area, subject to the Household Hazardous Waste Program Agreement between 410 the Authority, Contractor, and the County. The types of materials accepted as well as the days and hours 411 of operation shall be determined and may be subject to change at any time by the Authority Board of 412 Directors with input from the Contractor, subject to reasonable implementation lead time. Initially, the 413 days and hours of operation shall be from 9:00 a.m. to 4:00 p.m. Thursday, Friday, and the first Saturday 414 of each month. The Contractor shall also provide a mobile collection service for residents at least 60 415 years old and for persons with disabilities. Nothing in this Agreement should be inferred as conferring 416 third party beneficiary rights to such vendor and the Contractor shall have the right to replace such 417 vendor at any time for convenience, subject to Authority approval of the replacement vendor. In order 418 to comply with the Authority’s and County’s Household Hazardous Waste Elements (HHWE), the 419 Authority, Contractor and County (if the County is not a voting member of the Authority) will agree on 420 the types of materials accepted as well as the days and hours of operation the permanent Household 421 Hazardous Waste (HHW) drop-off facility services provided under this agreement. 422
4.1.8 Recycling Coordinators 423
No later than December 1, 2013, and subject to the approval and execution of amendments to the 424 Collection Franchises, the Contractor shall hire two (2) additional full time Recycling Coordinators who 425 shall be Contractor employees dedicated to work exclusively within the Authority service area. 426 During the process of recruiting and hiring for the individuals that shall fill these positions, the 427 Contractor shall accept input from the Authority and Franchise Agencies regarding desirable 428 qualifications of the selected candidates. At a minimum, the selected candidates: 1) should have at least 429 two (2) years of experience in a similar capacity, ideally as a recycling coordinator whose responsibilities 430 included interacting with the public (including, but not limited to, residents, businesses, and community 431 groups) and public agencies; 2) should be experienced in the management and update of websites and 432 the use of social media for educational and marketing purposes; 3) at least one of the selected 433 candidates must be fluent in the predominant secondary language of the service area (such as Spanish); 434 and, 4) at least one of the coordinators should have a communications, business/economic 435 development, or professional outreach background. 436
In the event that either: (1) , the Contractor fails to hire the two Recycling Coordinators by November 1, 437 2013; or, (2) in the event that such a position is ever vacant, during the Term of the Agreement, for 438 more than three (3) months after the employment relationship between the Contractor and the 439 employee is terminated, regardless of the reason, the Authority may, at its sole discretion, engage a 440 third party to perform the functions of the Recycling Coordinator until such time as the Contractor hires 441 the required personnel. The cost of such consultant shall be paid by the Contractor. The reimbursement 442 of such costs by the Contractor shall be limited to eight thousand three hundred and thirty three dollars 443 ($8,333) per month (equivalent to one hundred thousand dollars ($100,000) per year) per coordinator 444 that has to be replaced by the third party. The monthly and annual reimbursement rates described in 445 186
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this Section 4.1.8 will increase annually by the same percentage as the Material Specific portion of the 446 Rate as defined in Section 5.3.2. 447
The general scope of the Recycling Coordinators’ duties includes those items identified and described in 448 Exhibit 4.1.9 (Public Education and Outreach). The specific educational and outreach priorities and 449 campaigns to be performed by the Recycling Coordinators shall be defined cooperatively between the 450 Contractor, the Recycling Coordinators, and the Authority with input from Franchise Agencies. These 451 priorities and campaigns shall be documented by the Recycling Coordinator in an annual education and 452 outreach plan (Annual Plan), including identifiable and measurable goals, to be presented to the 453 Authority. The Authority and Franchise Agency staff shall be invited to provide comments on the Annual 454 Plan. The Authority shall be responsible for reconciling any conflicting comments and making a formal 455 request for changes to the Annual Plan. The Recycling Coordinators shall make quarterly status 456 presentations collectively to the Authority and Franchise Agencies, documenting their progress against 457 the plan and goals and recommending modifications to the plan, as appropriate. 458 The Parties shall agree on an annual process for reviewing the performance of the Recycling 459 Coordinators, documenting performance problems associated with this Service, and resolving those 460 problems (including some ultimate provision for reassigning and replacing the staff person). In addition, 461 the Parties shall agree on the approach to dealing with serial or excessive vacancies in these positions, 462 including the possibility of contracting jointly with a third party specializing in performing these Services 463 or transferring the funding for the positions to the Authority. 464
4.1.9 Public Education 465
Beginning December 2013, the Contractor shall begin to provide the public education and outreach 466 Services described in Exhibit 4.1.9, Public Education and Outreach. Contractor understands the 467 significance and importance of public education and outreach activities in achieving the Authority’s goal 468 of 75% recycling by 2020. Contractor further understands the diverse demographic and socio-economic 469 profile of the Authority’s service area. Contractor shall conduct all public education and outreach 470 activities in a manner that provides for education and outreach in the predominant secondary language 471 in the Authority’s service area. Contractor further understands the potential for an error in translation 472 that may make education ineffective, offensive, or otherwise alienate certain cultural groups. As such, 473 Contractor shall ensure such alternate language education is both linguistically and culturally 474 appropriate to the community. The Authority shall review and approve all such public education 475 materials prior to distribution.. 476
4.1.10 Cooperation with RFP and Transition to Next Contractor 477 If applicable, before expiration or earlier termination of this Agreement, Contractor will take direction 478 from the Authority Contract Manager and/or subsequent contractor to assist in an orderly transition of 479 services from Contractor to Authority or subsequent contractor. In response to the Authority Contract 480 Manager’s direction including to gather data necessary for the preparation of an RFP for replacement 481 services at the expiration or earlier termination of this Agreement, Contractor shall provide information 482 and data consistent with the requirements of Section 8.14 of this Agreement. 483 187
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4.1.11 Limitations to Scope 484
The scope of this Agreement does not include Solid Waste, Organic Materials, Recyclable Materials, 485 C&D, and/or other materials generated in the Authority area that are not Collected by the Franchise 486 Agencies’ Franchised Collectors. 487
4.2 Permits 488
4.2.1 Securing Permits 489
Contractor shall obtain and maintain, at Contractor’s sole cost, all Permits required under Applicable 490 Law to perform Services and shall provide Services in compliance with such Permits. For the Landfill and 491 the Approved Processing Facilities owned by Contractor or an Affiliate, Contractor shall provide 492 Authority copies of Permits for all of the Approved Processing Facilities and shall demonstrate 493 compliance with the terms and conditions of Permits within ten (10) Calendar Days of request of 494 Authority. In its Quarterly Report or more frequently, as necessary, Contractor shall inform Authority of 495 Contractor’s status of securing the issuance, revision, modification, extension or renewal of Permits that 496 are necessary to affect compliance with the terms of this Agreement. Within ten (10) Calendar Days 497 following Authority’s request, Contractor shall provide the Authority with copies of any applications or 498 other correspondence that the Contractor submits in connection with securing Permits. 499
4.2.2 Complying with Permits 500
Contractor shall comply with all Permits, including any mitigation measures related to the operation and 501 maintenance of all of the Approved Processing Facilities at no additional cost to the Authority for 502 current permit and fee structure at the time of the execution date of the Agreement. Contractor is 503 solely responsible for paying any fines or penalties imposed for noncompliance with or Violation of 504 Permits or failure to obtain Permits. 505
4.2.3 Hazardous Material Programs 506
All of the Approved Facilities and the Landfill shall maintain a Hazardous Waste screening, identification, 507 and prevention protocol consistent with the Solid Waste Facility Permits for each. The Contractor shall 508 not knowingly deliver or Process Hazardous Waste to or at any of the Approved Facilities or Landfill, 509 with the exception of the Household Hazardous Waste Facility co-located with the Approved Recycling 510 Materials Processing Facility at 101 Pittsburg Avenue in North Richmond. 511
4.3 Facility Specifications 512
4.3.1 Landfill Disposal 513
Contractor shall provide Disposal Services at the Landfill in accordance with the Service standards 514 described in Section 4.19 and the following Service specifications: 515 (1) Operating, managing and maintaining the Solid Waste fill areas, including the placement, 516 burying, and compaction of Solid Waste in the refuse fill areas; stockpiling, placement and compaction 517 188
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of daily cover, intermediate cover, and final cover; management of fill operations with regard to fill 518 sequencing, side slopes configuration, and working face location and configuration; 519 (2) Providing, operating and maintaining all equipment, rolling stock, and supplies necessary for 520 operations, Closure, Post-Closure, and environmental monitoring; 521 (3) Operating, maintaining, and managing leachate and landfill gas management systems, 522 groundwater monitoring and management systems, storm water drainage and control systems, 523 treatment facilities, buildings, on-site roadways, utilities, and any other required facility elements. 524 (4) Accepting delivery of Solid Waste from the Approved Transfer Station, subject to the limitations 525 of Section 4.5; 526
(5) Operating and maintaining the scale house and scale system and weighing Solid Waste delivered 527 from the Approved Transfer Station in accordance with Section 4.9; 528 (6) Directing on-site traffic to appropriate unloading areas in accordance with Section 4.8 and 529 providing a safe working environment for Landfill users, visitors, and employees including Sections 530
4.10 and 4.11; and, 531
(7) Safely managing the Solid Waste accepted at the Landfill, including, but not limited to, meeting 532 requirements of Section 4.11 533
4.3.2 Approved Processing Facilities 534
Contractor shall provide Processing services at the Approved Processing Facilities in accordance with the 535 Service standards described in Section 4.19 and the following Service specifications: 536 (1) Operating, managing, and maintaining the Processing areas; 537 (2) Providing, operating and maintaining all equipment, rolling stock, and supplies necessary for 538 operations and environmental monitoring; 539
(3) Operating, maintaining, and managing storm water drainage and control systems, treatment 540 facilities, buildings, on-site utilities, and any other required facility elements. 541 (4) Accepting delivery of Recoverable materials Collected under the Collection Franchise 542 Agreements, subject to the limitations of Section 4.5; 543 (5) Operating and maintaining the scale house and scale system and weighing all material delivered 544 under this Agreement in accordance with Section 4.9; 545 (6) Directing on-site traffic to appropriate unloading areas in accordance with Section 4.8 and 546 providing a safe working environment for facility users, visitors, and employees including Sections 4.10 547 and 4.11; 548
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(7) Safely managing the materials accepted at the Approved Recyclable Materials Processing 549 Facility, including, but not limited to, meeting requirements of Section 4.11. 550
4.4 Ownership of Authority Materials 551
Once Solid Waste, Organic Materials, C&D Material, Dry Material, HHW, or Recyclable Material directed 552 by the Authority is received and accepted by Contractor ownership and the right to possession of said 553 materials shall Transfer directly from the Person delivering said materials to Contractor. Contractor may 554 retain, Recycle, Process, Dispose of and otherwise use such Solid Waste, Organic Materials, C&D, Dry 555 Materials, HHW, and Recyclable Materials in any lawful fashion or for any lawful purpose, except that 556 Contractor may not Dispose of otherwise marketable Recyclable Materials or Organic Materials without 557 the prior written approval of the Authority. This requirement for written approval excludes process 558 Overs and process Residue. 559
Both benefits and Liabilities resulting from ownership and possession of Authority-directed materials 560 shall accrue to Contractor with the exception that the annual City/County payments associated with 561 California curbside redemption value (CRV) made by the California Department of Resources Recycling 562 and Recovery (CalRecycle) shall accrue to the Franchise Agencies. The benefits and liabilities accruing to 563 contractor shall include all scrap values, all California Redemption Value (CRV) payments (excepting 564 City/County payments as described above), all Curbside Supplemental payments, all quality incentive 565 payments, all Administrative fees, all Processing payments, and all program distributions of unspent 566 program funds. 567
4.5 Rejection of Unpermitted Waste at Landfill 568
4.5.1 Inspection 569
Contractor shall use Standard Industry Practices to detect and reject Unpermitted Waste in a uniform 570 manner and shall not knowingly accept Unpermitted Waste at the Approved Processing Facilities or 571 Landfill. Contractor shall comply with the inspection procedure contained in its Permit requirements. 572 Contractor shall promptly modify that procedure to reflect any changes in Permits or Applicable Law. 573
4.5.2 Unpermitted Wastes Handling and Costs 574
Contractor shall arrange for or provide handling, Transportation, and delivery of all Unpermitted Wastes 575 detected at the Approved Processing Facilities or Landfill to a Recycling facility or Landfill permitted in 576 accordance with Applicable Law. Contractor is solely responsible for making such arrangements or 577 provisions and for all associated costs thereof, subject to the remedies available under Section 4.5.3 578 below. 579
4.5.3 Remedies for Rejected Materials 580
If Unpermitted Waste is delivered to the Landfill, Contractor shall be entitled to pursue whatever 581 remedies, if any, it may have against Person(s) bringing that Unpermitted Waste to the Landfill. In no 582 190
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event shall the Authority or Franchise Agencies be required to bear the cost of the proper handling or 583 remediation of Unpermitted Wastes which are delivered to the Landfill. 584
4.6 Approved Facility and HHW Facility Days and Hours of Operation 585
4.6.1 Facilities Hours of Operation 586
Contractor will coordinate the hours of operation of the Approved Facilities to receive Solid Waste, 587 Organic Material, C&D Material, and Recyclable Material from the Franchised Hauler from the Authority 588 service area. 589
4.6.2 Approved HHW Facility Hours of Operation 590
The Approved HHW Facility hours of operation are determined by mutual consent by the Authority’s 591 Board of Directors and the Contractor and may be modified, by mutual consent, at any time during this 592 Agreement, following sixty (60) days advanced notification and adjustment of Rates to reflect the cost of 593 increased days and hours of service. The initial hours of operation for the Approved HHW Facility are 594 9:00 a.m. through 4:00 p.m. every Thursday and Friday and the first Saturday of every month. The 595 Authority Board of Directors has the right to reduce the future hours of HHW operations for cost control 596 measures. The Contractor will not unreasonably withhold consent for such cost control measures. 597
4.7 Equipment and Supplies 598
Contractor shall provide all rolling stock, stationary equipment, material storage containers, spare parts, 599 maintenance supplies, and other consumables as appropriate and necessary to operate the Approved 600 Processing Facilities and Landfill. Contractor shall place the equipment in the charge of competent 601 operators. Contractor shall repair and maintain all equipment at its own cost and expense. 602
4.8 Traffic Control and Direction 603
Contractor shall construct and maintain all paved areas on Contractor’s property that are required to 604 Transport Authority’s Solid Waste, Recyclable Materials, and Organic Materials from the scale house at 605 each of the Approved Processing Facilities to the point of unloading at the each of the Approved 606 Processing Facilities. Contractor shall direct on-site traffic to appropriate unloading areas and provide a 607 safe working environment for all of the Approved Processing Facilities and Landfill users, visitors, and 608 employees. Contractor shall provide necessary signs and personnel to assist drivers to proper unloading 609 areas. Contractor shall maintain all signs at all of the Approved Processing Facilities and Landfill in a 610 clean and readable condition. The Contractor shall provide and maintain signs for the convenience of 611 vehicles using the Approved Processing Facilities and Landfill to facilitate safe and efficient traffic flow. 612
4.9 Scale Operation 613
4.9.1 Maintenance and Operation 614
Contractor shall maintain at least two (2) State-certified motor vehicle scales at the Landfill and at least 615 one (1) State-certified motor vehicle scale at each of the Approved Processing Facilities in accordance 616 191
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with Applicable Law. Contractor shall provide documentary evidence of such certification within ten 617 (10) Calendar Days of Authority’s request. Contractor shall link all scales at each Approved Processing 618 Facility and Landfill to a centralized computer recording and billing system and account for tracking all 619 incoming material by jurisdictions of origin and outgoing materials by destination. Contractor shall 620 operate those scales during the Approved Processing Facility receiving hours established in Section 4.6. 621 Contractor shall provide the Authority with system generated original reports that does not contain 622 proprietary confidential information. 623
4.9.2 Vehicle Tare Weights 624
Contractor shall promptly weigh the vehicle and determine its unloaded (“tare”) weight(s). Contractor 625 shall record tare weight, hauler name, vehicle type (e.g. front-loader, transfer truck/trailer, side-loader, 626 etc.) and vehicle identification number for each and every vehicle with a stored tare weight in 627 Contractor’s computer system. Within ten (10) Working Days of weighing, Contractor shall provide the 628 Authority with a report listing vehicle tare weight information. Contractor shall have the right to 629 request re-determination of tare weights of vehicles twice each Calendar Year. If there is reasonable 630 suspicion or evidence that tare weights are not accurate, Authority may, at any time and without 631 limitation, request re-determination of tare weights, in which case Contractor shall promptly re-632 determine tare weights for requested vehicles. Contractor may update tare weights, at its own initiative 633 or at the request of the Authority, more frequently. This provision shall apply to all vehicles used to 634 deliver materials to each of the Approved Processing Facilities and Landfill. 635
4.9.3 Substitute Scales 636
If any facility scale is inoperable, being tested, or otherwise unavailable, Contractor shall use Reasonable 637 Business Efforts to weigh vehicles on the remaining operating scale. To the extent that all the scales are 638 inoperable, being tested, or otherwise unavailable, Contractor shall substitute portable scales until the 639 permanent scales are replaced or repaired. Contractor shall arrange for any inoperable scale to be 640 repaired as soon as possible and, in any event, within five (5) Working Days of the failure of the 641 permanent scale. If repairs to the permanent scale are projected to take more than twelve (12) hours, 642 Contractor shall immediately obtain a temporary substitute scales(s). 643
4.9.4 Estimates 644
Pending substitution of portable scales or during power outages at any Approved Processing Facility or 645 the Landfill, Contractor shall estimate the Tonnage of the material delivered to the Approved Processing 646 Facility by utilizing the arithmetic average of each vehicle's recorded Tons of the subject material 647 delivered on its preceding three (3) deliveries, on the same day of the week, to the respective facility. 648 All information required by Section 4.9.7 shall continue to be recorded for each delivery to the Landfill 649 or the Approved Processing Facilities during any period the scales are out of service. 650 192
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4.9.5 Testing 651
Contractor shall test and calibrate all scales in accordance with Applicable Law, but at least every twelve 652 (12) months or upon Authority request. 653
4.9.6 Weighing Standards and Procedures 654
Contractor shall weigh and record inbound weights of all vehicles delivering materials to the Approved 655 Processing Facilities and Landfill when the vehicles arrive and weigh and record outbound weights of 656 vehicles for which Contractor does not maintain tare weight information. Contractor shall provide each 657 driver a receipt showing the date, time, origin, quantity (i.e. tons or yards), and material type that the 658 vehicle delivered to the Approved Processing Facility or Landfill. 659
4.9.7 Scale Records 660
Contractor shall maintain scale Records and reports that provide information including date of receipt, 661 inbound time, inbound and outbound weights of vehicles, vehicle identification number, jurisdiction of 662 origin of materials received, type of material, hauler identification and/or classification, type, weight, 663 and destination of material. Contractor acknowledges that the weights recorded in its scale system(s) 664 form the basis for Contractor’s compensation under this Agreement and therefore shall be subject to 665 full disclosure to the Authority at all reasonable times. 666
4.10 Personnel 667
Contractor shall engage and train qualified and competent employees, including managerial, 668 supervisory, clerical, maintenance, and operating personnel, in numbers necessary and sufficient for 669 operation of the Approved Processing Facilities and Landfill and to perform the Services required by this 670 Agreement. 671
4.11 Safety 672
The Contractor shall conduct the operations of all of the Approved Processing Facilities and Landfill in a 673 safe manner, in accordance with Applicable Law and insurance requirements provided in Article 6. 674
4.12 Alternative Facilities 675
If Contractor does not receive the materials at the Approved Processing Facilities or Landfill for reasons 676 other than Uncontrollable Circumstances then, following Authority approval given in the Authority’s sole 677 discretion, Contractor shall: (i) accept the Authority’s materials at another similarly-capable processing 678 facility or landfill owned by it or an Affiliate; or, (ii) arrange for the Authority’s material to be Processed 679 or Disposed of at another similarly-capable processing facility or landfill not Owned by it or an Affiliate. 680 In either case, Contractor shall provide service through these alternate facilities at no additional cost. If 681 the Authority does not approve Contractor’s first choice of an alternate processing facility or landfill, 682 Contractor shall have ten (10) Working Days to arrange for different alternate facilities. If Authority 683 rejects such alternate facilities based on reasonable public policy, environmental, or business concerns, 684 193
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and Contractor proceeds to deliver such materials to the alternate facility(ies), then the Authority may 685 terminate this Agreement in accordance with Section 7.2. 686 If Contractor does not receive the materials at the Approved Processing Facilities or Landfill due to 687 Uncontrollable Circumstances, Contractor shall, to the extent it is legally able to do so in accordance 688 with Applicable Law, accept materials at another similarly-capable processing facility or landfill owned 689 by it or an Affiliate at no additional cost. If Contractor is unable to provide service through alternative 690 facilities owned by it or an Affiliate as a result of Uncontrollable Circumstances and such condition 691 persists for a period of five (5) or more Working Days, the Authority may, at its sole discretion, terminate 692 this Agreement in accordance with Section 7.2. 693
4.13 Invoicing 694
For all Franchised Collectors except Richmond Sanitary Service (Richmond Sanitary Service is expressly 695 exempt from this provision) on or before the tenth Working Day of each month, Contractor shall invoice 696 or otherwise charge the Franchise Agencies’ Franchised Collectors in amounts equal to the Rate 697 multiplied by Tons of the Authority’s Solid Waste, Organic Materials, C&D Materials, Dry Materials and 698 Recyclable Materials delivered by Franchised Collectors to the Landfill and Approved Processing 699 Facilities during the previous month. Copies of such invoices shall be provided to the Authority at the 700 same time as they are provided to the Franchised Collector. Invoices shall be in a form satisfactory to 701 the Authority and shall, at a minimum, separately list by material type the associated Tonnage, applied 702 Rate, and number of loads received. The Authority shall have no obligation for payment of such invoices 703 as the Franchised Collectors are authorized to collect from Customers the compensation provided for 704 herein. 705
4.14 Quarterly and Annual Reports 706
Records shall be maintained in forms and by methods that facilitate flexible use of data contained in 707 them to structure reports, as needed. Initially such format shall be Microsoft Excel compatible and in the 708 form provided in Exhibit 4.14. This format may be changed upon the request of the Authority Contract 709 Manager in consultation with Contractor. Reports are intended to compile recorded data into useful 710 forms of information that can be used to, among other things: 711 • Determine and set rates and evaluate the financial efficacy of operations; 712 • Evaluate past and expected progress towards achieving goals and objectives; 713 • Determine needs for adjustment to programs; and, 714
• Evaluate services. 715
Quarterly reports shall be submitted within thirty five (35) calendar days after the end of the report 716 quarter. The Contractor shall also submit an annual report containing a summary of all the details 717 described below for the entire Calendar Year. Annual reports shall be submitted before March 31 718 following the reporting year. All reports shall be submitted to and in a format acceptable to the 719 Authority Contract Manager via email with hardcopy provided upon request. 720 194
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4.14.1 Quarterly Reports 721
Contractor shall include in the Quarterly Report, at a minimum, the number of loads and tons, by 722 material type and by month, handled under this Agreement. Reports shall be organized to separately 723 report material received from each jurisdiction, between Customer (e.g. Residential, Commercial, or 724 Industrial) or Collection (e.g., side-loader, front-loader, roll-off) types, material types, and facilities. 725 Recycling Tonnage reports shall characterize the material Processed and marketed; using facility-wide 726 averages where impractical to separately characterize material from the Authority service area, and 727 document the residue rates. Supporting documentation shall be provided using unaltered, system-728 generated formats, upon request by the Authority Contract Manager. 729 Quarterly reports shall present information on a monthly basis, by Franchise Agency and by sector (i.e. 730 residential, multi-family, commercial, roll-off) and, at a minimum, include: 731
1. The number of loads and tons, by line of business (as identified in Sections 4.1.1 through 4.1.7), 732 handled under this Agreement. This information shall be presented on both an inbound (i.e. 733 collection vehicles) and outbound (i.e. transfer vehicles, commodities shipped, etc.) basis. 734
2. Number of new Customers, by service type and service level. 735
3. Transfer Station diversion report by commodity. 736
4. Landfill diversion report by commodity. 737
5. Processing Facility report regarding Composted or Processed product by commodity. 738
6. Special clean-up event tonnage Collected, Disposed and Recycled. 739
7. E-Waste and Bulky Items including number of collection events and units or tonnage by material 740 type. 741
4.14.2 Annual Report 742
The Annual Report shall include: 743
1. Service Level and Allocation Report. Contractor shall provide the number of Customers 744 subscribing to each collection service level authorized in the Franchise Agency Collection 745 Franchises on the last day of each month of the report year. Contractor shall provide the basis 746 for allocating tonnage in vehicles that serve multiple Franchise Agencies. The truck tonnage 747 allocation shall include a list of vehicles, their assigned routes, and a description of how tonnage 748 is allocated to each Franchise Agency. 749
2. Gross billings of the Rate authorized under this Agreement, reported by sector. 750
3. Status report on applications for renewals of existing permits or any new permits which may be 751 required to continue operations at the Transfer Station, MRF, Processing Facility, or Disposal Site 752 within existing permitted areas. 753
4. Listing of all trucks that have received a revised stored tare weight at any Approved Facility or 754 Landfill during the preceding quarter. The listing shall including the date the revised tare weight 755 195
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was established, truck number, license plate number, prior stored tare weight, revised stored 756 tare weight, and a brief explanation of any significant variance. 757
4.15 Change in Applicable Law Affecting Rates 758
Contractor acknowledges that waste management is fundamental to the protection of the public health, 759 safety, and the well-being of those within the Authority’s service area. Contractor agrees that it shall 760 exercise due diligence in performing the Services described herein. 761 In the event of a Change in Law or a new judicial interpretation of Applicable Law, including, but not 762 limited to, Articles XIII C and D of the California Constitution by which a court of competent jurisdiction 763 sets aside, invalidate, or stays any portion of the Rates approved by Authority in accordance with this 764 Agreement, the parties desire to establish a process by which services may be provided under 765 alternative or revised rate structures, as follows. Contractor agrees to meet and confer with Authority to 766 discuss the impact of such Change in Law on either Party’s ability to perform under this Agreement. 767 Contractor agrees to continue to perform the Services on an interim basis as otherwise set forth herein, 768 and Authority and/or Contractor may take such other and/or urgency actions necessary to facilitate 769 Contractor’s continuation of Services, while the Parties meet and confer to discuss the impact of such 770 change. In no event shall the interim period during which Contractor agrees to continue to perform the 771 Services last longer than ninety (90) days. 772
Nothing herein is intended to imply that California Constitution Articles XIII(C) or (D) apply to the Rates 773 established for Services provided under this Agreement. The foregoing paragraphs are merely intended 774 as a contractual allocation of risks between the Parties. 775 This Section shall survive the expiration or earlier termination of this Agreement and shall not be 776 construed as a waiver of rights by Authority to contribution or indemnity from third parties. 777 This provision is intended to be consistent with and limited by California Public Resources Code Section 778 40059.2. 779
4.16 Closure and Post-Closure of Landfill 780
Contractor shall safely operate, maintain, and manage (including fulfillment of State funding 781 requirements) the Landfill in compliance with Applicable Law not only during the Term but also 782 thereafter until and during the Landfill Closure and Post-Closure period(s). Contractor is solely 783 responsible, operationally and financially, for: (i) The appropriate Closure and Post-Closure activities of 784 the Landfill; and, (ii) The establishment and funding of any reserve funds required by Applicable Law for 785 the purposes of providing funds for the payment of costs of Closure of the Landfill (or any cell within the 786 Landfill) or Post-Closure activities relating to the Landfill. 787 Contractor shall not hold the Authority or Franchise Agencies responsible for paying any deficiencies in 788 required reserves. In addition, Contractor shall not hold the Authority or Franchise Agencies responsible 789 for making any payments if actual Closure and Post-Closure costs relating to the Landfill exceed the 790 196
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amounts reserved by the Contractor for that purpose. This obligation survives expiration or termination 791 of this Agreement. 792
4.17 Right to Enter Facility and Observe Operations 793 The Authority Contract Manager may enter, observe, and inspect any of the Approved Processing 794 Facilities and/or Landfill during operations; may request to conduct studies or surveys of the Approved 795 Processing Facilities and/or Landfill; meet with the Approved Processing Facility and/or Landfill 796 manager(s) or his or her representatives at any reasonable time, provided that the Authority Contract 797 Manager and its representatives comply with Contractor’s reasonable safety and security rules and do 798 not interfere with the work of the Contractor. 799
If the Contractor representative or facility manager is not at the Approved Processing Facility or Landfill 800 when the Authority Contract Manager visits without prior announcement, Contractor shall arrange for 801 the Authority Contract Manager to return for a visit of the complete facility within forty-eight (48) hours 802 of the original visit. 803
Upon Authority Contract Manager’s request, Contractor shall make personnel available to accompany 804 Authority Contract Manager on inspections. Contractor shall ensure that its employees cooperate with 805 the Authority and respond to the Authority’s reasonable inquiries. Contractor shall facilitate similar 806 observation and inspection at Approved Processing Facilities owned by it or an Affiliate upon Authority 807 request and within ten (10) Working Days of receiving such request. 808
4.18 Provision of Emergency Services 809
Subject to Permit restrictions, Contractor shall provide emergency services, as set forth in this Section, 810 at the Authority’s request in the event of major accidents, disruptions, or natural calamities. Contractor 811 shall provide emergency services within twenty-four hours (24) of Authority oral notice followed by 812 Notice or as soon thereafter as is reasonably practical in light of the circumstances. Emergency services 813 that exceed the Contractor’s obligations under this Agreement include extending facility receiving hours 814 and increasing the types and quantities of permitted materials accepted at any of the Approved 815 Processing Facilities and Landfill, if applicable. 816 Contractor shall be paid for its direct costs, plus a net profit not to exceed fifteen percent (15%) of the 817 total payment to Contractor, in providing emergency services. Contractor may also request 818 reimbursement of any indirect costs which Contractor can demonstrate, to the satisfaction of the 819 Authority, are: i) directly required for or beneficial to the provision of emergency services; and/or, ii) 820 otherwise allowable and expected as reimbursement from an emergency management agency 821 including, but not limited to, the Federal Emergency Management Agency. The Authority shall not 822 unreasonably withhold consent to reimbursement of such indirect costs. Contractor shall document all 823 such costs in an invoice to the Authority. The Authority shall consider and conduct all necessary 824 investigations to assure the appropriateness of the costs and shall endeavor to do so in as prompt a 825 fashion as is accommodated by the conditions. Contractor shall cooperate fully with Authority’s review, 826 providing any documents the Authority Contract Manager deems necessary in the review. Once 827 197
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Authority is satisfied that all charges are reasonable and appropriate, Authority shall pay Contractor the 828 approved amount within thirty (30) days. 829
4.19 Service Standards 830
Contractor shall perform Services in accordance with Applicable Laws and regulations, Standard Industry 831 Practice, due diligence and specification, and other requirements of this Agreement. 832
4.20 Modifications to Scope of Service 833
4.20.1 General 834
Authority may request and Contractor shall perform additional services (including Niche and non-Niche 835 Services) for which it is qualified and permitted. Contractor may propose to the Authority modifications 836 to the scope of services for which Contractor believes the Parties shall jointly benefit. Contractor may 837 use subcontractors to perform the services (Niche and non-Niche Services), subject to the Authority’s 838 approval of such subcontractor, which shall not be unreasonably withheld. The respective Rate for 839 service shall be increased or decreased, in accordance with this Section, to give effect to these 840 adjustments. 841
4.20.2 Proposal for Modification of Services 842
Within ninety (90) Calendar Days of Authority request for a proposal, Contractor shall present its 843 proposal to modify existing Services. At a minimum, the proposal shall contain a complete description 844 of the following: 845
(1) Methodology to be employed (including, but not limited to, changes to equipment, manpower, 846 and staffing); 847
(2) Equipment to be utilized (including, but not limited to, equipment number, types, capacity, and 848 age); 849
(3) Labor requirements (changes in number of employees by classification); 850 (4) Provision for program publicity/education/marketing (if appropriate); 851 (5) Estimate of the impact of the Service modification (including, but not limited to, increased 852 Diversion Tonnage, reduced costs, and increased public service); and, 853 (6) Contractor shall receive the then-current Rate, net of any avoided Governmental Fees applicable 854 to disposal of such material or offsets from any grants (or other similar funding), as compensation for 855 any Niche or non-Niche Services performed in response to a modification of service under this Section 856
4.20. 857
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4.20.3 Authority’s Review 858
If the Authority does not review and comment on, and approve or disapprove of the modification to the 859 scope of Services within ninety (90) Calendar Days of receiving the Contractor’s proposal, the proposal 860 shall be deemed disapproved. The Authority and Contractor may mutually agree to extend the time 861 period for review due to the complexity of the scope of Service modification under consideration, the 862 time needed for the review or approval, or for other reasonable reasons. 863 The Authority may request the assistance of an independent third party to review the proposal. The 864 Contractor shall pay the reasonable costs of that review if the modification to the scope of Services is 865 initiated by the Contractor and such review is reasonably necessary, as determined by the Authority 866 Contract Manager. The Authority shall pay those costs if the modification to the scope of Services is 867 initiated by the Authority. The cost of that review shall be estimated in advance of the work, and 868 provided to the Contractor for comment and agreement to pay. Contractor’s refusal to pay the 869 reasonable cost of review of a Contractor-initiated proposal shall be grounds for Authority rejection of 870 that proposal. 871
Contractor shall promptly provide operating and business Records requested by the Authority that are 872 reasonably required to verify the reasonableness and accuracy of the impacts associated with a 873 modification to the scope of Services. Contractor shall fully cooperate with the Authority’s request and 874 provide Authority and its agent(s) copies of or access to Contractor’s Records. 875
4.20.4 Approval of Modification to Scope of Services 876 Upon Authority approval or determination, Authority shall issue a notice approving the modification to 877 the scope of Service and documenting any change to the Rate, and approved change to Contractor’s 878 obligations hereunder. The Parties shall prepare a written amendment to the Agreement documenting 879 any and all changes resulting from the modification to the scope of Services. No adjustment in Rates, 880 change in Contractor’s obligations, or change in scope of Services shall become effective absent that 881 Authority approval or determination. 882
4.20.5 Authority’s Remedies 883
If Contractor and Authority cannot agree in good faith on terms and conditions of Contractor providing 884 new Services within sixty (60) Calendar Days from the end of the Authority’s review period described in 885 Section 4.20.3: 886
1) In the event that the subject services are: (a) not Niche Services; and/or, (b) the Authority desires to 887 have Contractor provide the requested new/additional services, the Authority and Contractor agree to 888 binding Arbitration limited to the remaining disputed issues that were identified in the 60-day period ; 889 or, 890
891
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2) In the event that the subject services are Niche Services, the Authority may permit Persons other than 892 Contractor to provide those Niche Services at a location other than the Approved Processing Facilities 893 and Landfill only after Parties have exhausted the requirements of Sections: 3.2, 4.20.5(1) and 4.20.2(6) 894
4.21 Triennial Review of 75% Recycling Goal 895
The Authority and Contractor agree that the common goal of the Parties for this Agreement is to 896 facilitate the local achievement of the State’s seventy-five percent (75%) recycling goal by the year 2020. 897 In January of 2016 and every three (3) years thereafter during the Term, Authority and Contractor shall 898 meet to review the current level of recycling (as measured by CalRecycle) being achieved within the 899 Authority’s service area. The Franchise Agencies’ staff and Franchise Collectors management shall also 900 be invited to the meetings. These meetings shall be called “Recycling Goal Meetings.” One (1) week 901 prior to each Recycling Goal Meeting, each Party shall provide the other with its assessment of the 902 progress and performance towards achieving the seventy-five percent (75%) recycling goal by 2020. The 903 Parties shall meet to discuss their respective assessments and to cooperatively develop 904 recommendations for improvements or modernizations of programs, services, or the methods for 905 providing them. The objective of the Parties during these meetings shall be to identify continuous 906 improvement opportunities and formulate recommendations for implementing them within the existing 907 cost structure of the Agreement and Franchise Agency Collection Franchises. 908 The Authority Contract Manager and Contractor shall jointly develop a report to the Authority Board of 909 Directors advising the Board of Directors on the progress towards the diversion goal. In the event that 910 the Authority Contract Manager and Contractor are not in agreement about certain findings or 911 recommendations, each Party may submit their own, separate report specific to those issues. The 912 Authority Board of Directors shall review the report(s) at their April meeting in each year that a 913 Recycling Goal Meeting occurs and shall determine whether to proceed with Option A or Option B 914 below. 915
A. If Contractor’s existing Recycling and Processing programs are on schedule towards achieving 916 the seventy-five percent (75%) recycling rate, or have achieved and have maintained seventy-five 917 percent (75%) recycling rate, Contractor shall continue to operate its existing Recycling and Processing 918 programs throughout Authority’s service area. Notwithstanding the foregoing, the parties shall still hold 919 and attend the triennial Recycling Goal Meetings to discuss Contractor’s programs, including but not 920 limited to the feasibility of increasing the rate of recycling within the Authority’s service area beyond 921 seventy-five percent (75%). 922
B. If Contractor’s existing Recycling and Processing programs are not on schedule towards 923 achieving seventy-five percent (75%) recycling rate, then within ninety (90) days after the Authority 924 Board of Directors meeting to consider the report, the Authority shall conduct a performance review of 925 the Contractor to determine whether programs and Services required under this agreement, including 926 the Enhanced Collection Services described in Exhibit 2.4.6, have been fully implemented in good faith 927 by the Contractor. Contractor shall fully cooperate with such performance review including providing 928 information and making management available for interviews with the Authority’s staff or agents. 929 200
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i. In the event that the Authority Board of Directors concludes that Contractor has failed 930 to fully implement programs in good faith, at a minimum, the frequency of the Recycling Goal 931 Meetings shall be annual until the plan has been fully implemented. 932 ii. In the event that the Authority Board of Directors conclude that Contractor has fully 933 implemented programs in good faith, the Authority may request and Contractor shall develop 934 and propose to Authority a plan for new or modified Recycling and Processing programs that are 935 designed to achieve the seventy-five percent (75%) recycling rate in the most reasonable, cost-936 effective, and expedient manner possible. Contractor’s proposal should identify any elements of 937 the program that Contractor believes would impact the Franchise Agencies’ agreements with 938 the Franchised Collector(s). The Parties will review such a plan consistent with the requirements 939 of Section 4.20 of this Agreement. 940
The parties agree that the 75% goal is a target and not a contractually required or guaranteed recycling 941 rate put forth by Contractor as part of this Agreement. The intent of the performance review 942 referenced in Subsection 4.21.B shall be to determine whether Contractor has made good faith efforts 943 to implement the programs and services outlined in this Agreement. 944 945
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ARTICLE 5 946
CONTRACTOR COMPENSATION 947
5.1 General 948
The Contractor shall perform and pay all costs associated with all of its obligations, responsibilities, and 949 duties under this Agreement. In consideration of its performance of these duties, the Contractor may 950 charge and collect the Post Collection Rate for the Services provided under this Agreement from the 951 Franchise Agencies’ Franchised Collectors. This shall be the Contractor’s only compensation allowed 952 under this Agreement. Nothing in this Agreement should imply that the Authority or Franchise Agencies 953 have any direct obligation to make payments to Contractor for services provided under this Agreement. 954
5.2 Initial Rate 955
5.2.1 General 956
The Contractor’s initial compensation shall be a blended per-Ton Rate that is charged to the Franchise 957 Agencies’ Franchised Collectors on all Tons of material, regardless of type, delivered by these Franchised 958 Collectors to the Contractor. The Rate that forms the basis of Contractor’s compensation under this 959 Agreement shall include: 960
1) The “material specific” portion of the Rate which is to compensate Contractor for the services 961 provided under Sections 4.1.1 through 4.1.6 of this Agreement; 962 2) The “HHW” portion of the Rate which is to compensate Contractor for the services provided 963 under Section 4.1.7 of this Agreement; 964
3) The “Authority” portion of the Rate which is to compensate Contractor for its payment of the 965 Authority’s operating expenses; 966
4) The “Recycling Rebate” portion of the Rate which confers the value of the Recyclable 967 Materials Processed under this Agreement to the Franchise Agencies’ rate payers; and 968 5) The “Governmental Fee” portion of the Rate which is to compensate Contractor for fees 969 required by various regulatory agencies related to the use of the Landfill and Approved Facilities. 970
5.2.2 Material Specific Portion of the Rate 971
The initial “material specific” portion of the Rate shall be based on Contractor’s calendar year 2014 972 annual proposed cost of service of ten million two hundred fifty one thousand one hundred thirty five 973 dollars ($10,251,135), less the initial cost of governmental fees, as described in Section 5.2.6, of one 974 million four hundred fifty four thousand six hundred thirty four dollars and sixty four cents 975 ($1,454,634.64). 976
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The material specific portion of the initial Rate net of governmental fees shall equal sixty nine dollars 977 and fify seven cents ($69.57) per ton which is calculated as follows: 978 a) Eight million seven hundred ninety six thousand five hundred twenty four dollars and thirty six 979 cents ($8,796,500.36); 980
b) Divided by the total annual Tonnage of all material types in the Franchise Agencies for which 981 Richmond Sanitary Service is the Franchised Collector, which is stipulated by the Parties for the 982 purposes of the initial Rate setting at one hundred twenty six thousand four hundred thirty four 983 (126,434) tons per year; and, 984
c) Rounded to the nearest penny. 985
5.2.3 HHW Portion of the Rate 986
The initial “HHW” portion of the Rate shall be based on the Parties jointly-estimated calendar year 2014 987 annual proposed cost of service of seven hundred ninety-one thousand one hundred forty-four dollars 988 ($791,144). The HHW Portion of the Rate shall be shared with the City of El Cerrito and the portion paid 989 by the City of El Cerrito shall not be included in the Rate calculated under this Agreement. The portion 990 of the initial Rate funded under this Agreement is seven hundred twenty seven thousand eight hundred 991 seventy seven dollars ($727,877). 992
The HHW portion of the initial Rate shall equal five dollars and seventy six cents ($5.76) per ton which is 993 calculated as follows: 994
a) Seven hundred twenty seven thousand eight hundred seventy seven dollars ($727,877); 995 b) Divided by the total annual Tonnage of all material types in the Franchise Agencies for which 996 Richmond Sanitary Service is the Franchised Collector, which is stipulated by the Parties for the 997 purposes of the initial Rate setting at one hundred twenty six thousand four hundred thirty four 998 (126,434) tons per year; and, 999
c) Rounded to the nearest penny. 1000
5.2.4 Authority Portion of the Rate 1001
The initial “Authority” portion of the Rate shall be based on the Authority’s estimated calendar year 1002 2014 annual proposed revenue requirement of one million dollars ($1,000,000). The Authority portion 1003 of the Rate shall be shared with the City of El Cerrito and the portion paid by the City of El Cerrito shall 1004 not be included in the Rate calculated under this Agreement. The portion of the initial Rate funded 1005 under this Agreement is nine hundred twenty thousand thirty one dollars ($920,031). 1006 The Authority portion of the initial Rate shall equal seven dollars and twenty eight cents ($7.28) per ton 1007 which is calculated as follows: 1008
a) Nine hundred twenty thousand thirty one dollars ($920,031); 1009 203
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b) Divided by the total annual Tonnage of all material types in the Franchise Agencies for which 1010 Richmond Sanitary Service is the Franchised Collector, which is stipulated by the Parties for the 1011 purposes of the initial Rate setting at one hundred twenty six thousand four hundred thirty four 1012 (126,434) tons per year; and, 1013
c) Rounded to the nearest penny. 1014
5.2.5 Recycling Rebate Portion of the Rate 1015
The initial “Recycling Rebate” portion of the Rate shall be based on the Contractor’s proposed calendar 1016 year 2014 annual proposed rebate value of seven hundred twenty two thousand three hundred twenty 1017 dollars ($722,320). This estimate is based upon a rebate value of forty dollars ($40) per ton of 1018 Traditional Recyclable Materials and not Specialty Recyclable Materials received under this Agreement, 1019 multiplied by the Parties agreed-upon estimated annual tonnage of eighteen thousand fifty-eight 1020 (18,058). The initial recycling rebate shall be used in the establishment of Rates for Calendar Years 2014 1021 and 2015. The Recycling Rebate shall only be used in calculating the Rate charged to Richmond Sanitary 1022 Service for the Franchise Agencies where they are the Franchised Collector. 1023 The Recycling Rebate portion of the initial Rate shall equal negative five dollars and seventy one cents (-1024 $5.71) per ton which is calculated as follows: 1025
a) Negative seven hundred twenty two thousand three hundred twenty dollars ($722,320); 1026 b) Divided by the total annual Tonnage of all material types in the Franchise Agencies for which 1027 Richmond Sanitary Service is the Franchised Collector, which is stipulated by the Parties for the 1028 purposes of the initial Rate setting at one hundred twenty six thousand four hundred thirty four 1029 (126,434) tons per year; and, 1030
c) Rounded to the nearest penny. 1031
5.2.6 Governmental Fee Portion of the Rate 1032
The initial “Governmental Fee” portion of the Rate shall be based on the governmental fees in place at 1033 the execution of this Agreement (as presented in the below table) and the stipulated basis for 1034 extrapolating those fees to annual costs, as described herein. 1035 1036
Fee Description Fee Amount
(per ton)
Stipulated Basis
(tons)
Annual Fee
Amount Material Type
Local Enforcement Agency –
Golden Bear Transfer Station
& West Contra Costa
Sanitary Landfill
$ 1.75
88,334 $ 154,584.50 Solid Waste
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City of Richmond Franchise
Fee $ 1.50
88,334 $ 132,501.00 Solid Waste
Disposed
Host Mitigation Fees (IRRF) $ 3.38
18,058 $ 62,661.26 All Tons
Host Mitigation Fees
(APPROVED TRANSFER
FACILITY)
$ 3.38
88,334 $ 306,518.98 Solid Waste
Disposed
West Contra Costa Sanitary
Landfill Recycling Fee – paid
on all Processed Materials
$ 0.91
20,042 $ 18,639.06
Processed Material
(for example C&D,
organics, etc.)
Contra Costa County Solid
Waste Fee (AB 939 at KCLF) $ 0.15
88,334 $ 13,250.10 Solid Waste
Disposed
AB 1220 Integrated Waste
Management Fee at KCLF $ 1.40
88,334 $ 123,667.60 Solid Waste
Disposed
Contra Costa Bailey Road
Surcharge (KCLF) $ 0.68
88,334 $ 60,067.12 Solid Waste
Disposed
Bailey Road Charge (KCLF) $ 0.32
88,334 $ 28,266.88 Solid Waste
Disposed
Contra Costa County Landfill
Surcharge (KCLF)
25% of Gate
Rate, net of
taxes/fees
88,334
$ 564,454.26 Calculation $34.50 minus
per ton fees X
0.25 / 1.25
1037
1038
Note: 1039
1) Chart estimates Governmental Fees by material type and Facility based on the SOI estimated tons. 1040 2) Host Mitigation Fees and the West Contra Costa Sanitary Landfill Recycling Fee are adjusted annually 1041 and adjusted fee amounts go into effect on January 1
of each year 1042
1043
The Governmental Fee portion of the initial Rate shall equal eleven dollars and fifty onecents ($11.51) 1044 per ton which is calculated as follows: 1045
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a) One million four hundred fifty four thousand six hundred thirty four dollars and sixty four cents 1046 ($1,454,634.64); 1047
b) Divided by the total annual Tonnage of all material types in the Franchise Agencies for which 1048 Richmond Sanitary Service is the Franchised Collector, which is stipulated by the Parties for the 1049 purposes of the initial Rate setting at one hundred twenty six thousand four hundred thirty four 1050 (126,434) tons per year; and, 1051
c) Rounded to the nearest penny. 1052
5.2.7 Calculation of the Initial Rate 1053
The initial Rate for the Franchise Agencies where Richmond Sanitary Service acts as the Franchised 1054 Collector shall be eighty eight dollars and forty cents ($88.40) per ton, which is calculated by adding the 1055 Material Specific, HHW, Authority, Recycling Rebate, and Governmental Fee portions of the Rate 1056 together. 1057
5.3 Annual Adjustments to the Rate 1058
5.3.1 General 1059
The Rates for the first Rate Year ending December 31, 2014, are deemed established by the Parties 1060 mutual execution of this Agreement with no further action required. Unless and until the initial Rates set 1061 forth in Section 5.2 are adjusted by the Authority, the Contractor shall provide the Services required by 1062 this Agreement, charging no more and no less than the Rates authorized herein. No adjustment to the 1063 Rates shall be valid until the Authority Board of Directors takes official action in the form of a written 1064 resolution to adopt adjusted Rates. The Authority shall be responsible for considering annual 1065 adjustments to the Rate charged under this Agreement in a manner consistent with the requirements of 1066 this Section 5.3. 1067
Contractor shall submit its preliminary request for the adjustment of the Rate no later than September 1 1068 of each Calendar Year for the Rate effective January 1 of the following Calendar Year. The request shall 1069 be submitted in a format acceptable to the Authority Contract Manager. Contractor’s request for the 1070 adjustment of the Rate shall document all calculations and include all supporting schedules, 1071 documentation of changes to Governmental Fees, and any other documentation or evidence 1072 determined by the Authority Contract Manager to be reasonably necessary to ensure that the 1073 calculation of the Rate adjustments has been performed in strict conformance to the requirements of 1074 this Section 5.3. 1075
The Authority’s Board of Directors shall approve the Rate adjustment at its regularly-scheduled 1076 November meeting each year. If the adjustment to Rates cannot be considered and approved at that 1077 meeting due to a delay caused solely by the Authority, the Authority shall allow the Contractor to 1078 retroactively bill customers for the amount of the adjustment to the Rate for any period of said delay 1079 that is caused by the Authority. If the adjustment to Rates cannot be considered and approved at that 1080 meeting due to a delay caused in whole by Contractor’s delay in submitting the request in a complete 1081 206
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and accurate form, then prior Rates remain in effect until such adjustment is made and Contractor shall 1082 not be entitled to any revenue lost because of the delay. 1083
5.3.2 Adjustment to Material Specific Portion of the Rate 1084 The material-specific portion of the Rate (initially $69..57 per ton) shall be adjusted annually, based on 1085 eighty-five percent (85%) of the average monthly change in the San Francisco-San Jose-Oakland All 1086 Urban Consumers CPI. The average monthly change shall be calculated by averaging the percentage 1087 change in the index values for the most recent July through June, compared to the values for the same 1088 month one year prior. 1089
For example, the average monthly change, using the fictional values presented in the table below, would 1090 equal one and sixteen hundredths percent (1.16%) and eighty-five percent (85%) of the average monthly 1091 change would equal ninety eight hundredths of a percent (0.98%). 1092 1093
Jul Aug Sep Oct Nov Dec Jan Feb Mar Apr May Jun
2011/
2012 123.9 124.7 125.1 125.3 124.8 125.5 123.2 122.9 124.3 123.8 124.4 124.6 2012/
2013 124.8 126.1 127.2 127.4 126.8 127.1 124.5 125.2 125.9 124.2 125.1 125.5 % Chg 0.73% 1.12% 1.68% 1.68% 1.60% 1.27% 1.06% 1.87% 1.29% 0.32% 0.56% 0.72% 1094
When applied to the material specific portion of the initial Rate, this example would result in a revised 1095 material-specific portion of the Rate of seventy dollars and fifty three cents ($70.53) per ton. 1096 1097
The maximum adjustment due to an increase in CPI to the material-specific portion of the blended Rate 1098 shall be four percent (4%) in each year of the Agreement; however, in the event that eighty-five percent 1099 (85%) of the average monthly change in the CPI exceeds four percent (4%) the Contractor shall be 1100 allowed to carryover the amount that exceeds four percent (4%) to the following Rate Year, provided 1101 that doing so does not cause the Rate adjustment for that following Rate Year to exceed four percent 1102 (4%). The minimum adjustment due to changes in CPI to the material-specific portion of the blended 1103 rate shall be zero percent (0%); however, in the event that eighty-five percent (85%) of the average 1104 monthly change in CPI results in a negative value, the Authority shall be allowed to carryover the 1105 negative amount to subsequent Rate Years, provided that doing so does not cause the Rate adjustment 1106 for that subsequent Rate Year to be less than zero percent (0%). 1107
5.3.3 Adjustment to HHW Portion of the Rate 1108
The Contractor and the Authority Contract Manager shall jointly prepare and submit a draft HHW Drop-1109 off Services budget to the Authority Board of Directors for its review and approval. This draft budget 1110 shall be submitted no later than September 1 in each Calendar Year for the next Calendar Year’s budget. 1111 The Authority Board of Directors may approve that budget as submitted or may request modifications to 1112 the budget, including requesting either an increase in service levels or a reduction or elimination of 1113 207
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Services in order to reduce costs. Once approved, this budget shall serve as the revenue requirement for 1114 the HHW portion of the Rate for the coming year. Contractor shall be entitled to an operating margin of 1115 eleven and fifty five one hundredths percent (11.55%) for calendar year 2014 and fifteen percent (15%) 1116 in all subsequent Rate Years. 1117
The revenue requirement for the HHW portion of the Rate shall be divided by the actual Tonnage of 1118 Solid Waste, Recyclable Materials, C&D Materials, Organic Materials, and Dry Materials received by 1119 Contractor from the Franchise Agencies’ Franchised Collector in the most recently completed twelve 1120 month period to determine the adjusted Rate. 1121
For example: 1122
If, the HHW revenue requirement was six hundred thousand dollars ($600,000); and, 1123 If, the total tonnage received by Contractor from the Franchised Collector in the most recently 1124 completed twelve month period is one hundred fifty thousand (150,000) tons; 1125 Then, the HHW portion of the Rate would be four dollars and zero cents ($4.00) per ton. 1126
5.3.4 Adjustment to Authority Portion of the Rate 1127
No later than September 1 of each Calendar Year, the Authority shall establish a budget for their 1128 operations and shall specifically identify the portion of that budget to be funded through the Rate. Once 1129 approved, this budget shall serve as the revenue requirement for the Authority portion of the Rate. 1130 The revenue requirement for the Authority portion of the Rate shall be divided by the actual Tonnage of 1131 Solid Waste, Recyclable Materials, C&D Materials, Organic Materials, and Dry Materials received by 1132 Contractor from the Franchised Collector in the most recently completed twelve month period to 1133 determine the adjusted Rate. 1134
For example: 1135
If, the Authority revenue requirement was nine hundred thousand dollars ($900,000); and, 1136 If, the total tonnage received by Contractor from the Franchised Collector in the most recently 1137 completed twelve month period is one hundred fifty thousand (150,000) tons; 1138 Then, Authority portion of the Rate would be six dollars and zero cents ($6.00) per ton. 1139
5.3.5 Adjustment to Recycling Rebate Portion of the Rate 1140 When establishing the revenue requirement for the Recycling Rebate portion of the Rate for each Rate 1141 Year of the Agreement, starting with 2016, the revenue requirement shall include adjusting the per-Ton 1142 and annual Tonnage values considered in the establishment of the initial Recycling Rebate described in 1143 Section 5.2.5 above. 1144
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The initial per Ton value of negative forty dollars (-$40) shall be adjusted to be twenty eight and 1145 seventeen hundredths percent (28.17%) of the monthly average (for the most recent July through June) 1146 low side of the “Official Board Markets”, “Los Angeles” index for “Mixed Paper (2) – Export to China – 1147 FAS”, rounded to the nearest penny. That index value was 142 in November 2012 at the time of 1148 Contractor’s Proposal to the Authority. 1149
For example: 1150
If the index values for the preceding twelve months are: Jul – 148, Aug – 1151 147; Sept – 144, Oct – 143, Nov – 141, Dec – 138, Jan – 138, Feb – 144, 1152 Mar – 145, Apr – 148, May – 146, Jun – 149, then, 1153
Monthly Average = $144.25 x 0.2817 (stated percentage of OBM) = 1154 $40.64 Revised Per-Ton Rebate 1155
The initial annual Tonnage value shall be adjusted to reflect the actual total Tonnage of source 1156 separated Residential single-stream Recyclable Materials collected by the Franchised Collector and 1157 delivered to the Approved Recyclable Materials Processing Facility during the preceding twelve (12) 1158 months. 1159
For example: 1160
If the Recyclables Tonnage values for the preceding twelve months are: 1161 Jul – 1,448, Aug – 1,547; Sept – 1,443, Oct – 1,421, Nov – 1,494, Dec – 1162 1,384, Jan – 1,652, Feb – 1,644, Mar – 1,715, Apr – 1,480, May – 1,346, 1163 Jun – 1,549, then, 1164
Revised Annual Tonnage = 18,123 1165
The revised per-Ton rebate value is then multiplied by the revised 1166 annual Tonnage value to arrive at the recycling rebate for the coming 1167 Calendar Year. For example: 1168
18,123 Revised Annual Tonnage 1169
X 40.64 Revised Per-Ton Rebate Value 1170
-$736,518.72 Revised Recycling Rebate Revenue Requirement 1171 The revenue requirement for the Recycling Rebate portion of the Rate shall be divided by the actual 1172 Tonnage of Solid Waste, Recyclable Materials, C&D, Organic Materials, and Dry Materials received by 1173 Contractor from the Franchise Agencies’ Franchised Collector in the most recently completed twelve 1174 month period to determine the adjusted Rate. 1175
For example: 1176
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If, the Recycling Rebate revenue requirement was negative seven hundred thirty six thousand 1177 five hundred eighteen dollars and seventy two cents (-$736,518.72); and, 1178 If, the total tonnage received by Contractor from the Franchised Collector in the most recently 1179 completed twelve month period is one hundred fifty thousand (150,000) tons; 1180 Then, the Recycling Rebate portion of the Rate would be negative four dollars and ninety one 1181 cents (-$4.91) per ton. 1182
5.3.6 Adjustment to Governmental Fee Portion of the Rate 1183 When establishing the revenue requirement for the Governmental Fee portion of the Rate for each Rate 1184 Year of the Agreement, starting with 2015, the revenue requirement shall include adjusting the basis for 1185 any Governmental Fees which have changed in the prior year and annual Tonnage values considered in 1186 the establishment of the Governmental Fee portion of the Rate described in Section 5.2.6 above. 1187 When preparing its request for the adjustment of Rates, Contractor shall prepare a table, consistent 1188 with the table of Governmental Fees presented in Section 5.2.6 above identifying the amount of each 1189 fee, the revised basis for the fee using the prior twelve months actual operating results, and the revised 1190 projected annual fee amount. The revised basis for any Governmental Fee that is based on a percentage 1191 of revenue may not exceed the percentage adjustment calculated for the Material Specific portion of 1192 the Rate under Section 5.3.2, unless such revised basis is required by the governmental agency 1193 responsible for setting and/or adjusting such fee. The sum of the annual fee amounts shall serve as the 1194 revenue requirement for the Governmental Fee portion of the Rate. 1195 In the event that there is a change in any existing Governmental Fee or creation of any new 1196 Governmental Fee impacting the services provided under this Agreement and such change becomes 1197 known to the Parties after the Authority’s approval of revised Rates, the Authority shall have the option 1198 of (1) revising the Rate outside of the schedule defined herein or (2) may postpone the adjustment of 1199 the Rate and allow Contractor to apply a surcharge to the following year’s Rate in order to make up the 1200 change. The Authority shall have no obligation to make such out of schedule adjustments or allow such 1201 surcharges in the event that the cumulative remaining annual effect of such change is valued at less 1202 than twelve thousand five hundred dollars ($12,500). 1203 In the event that Contractor knew or reasonably should have known of such change prior to the 1204 approval of revised Rates and Contractor fails to notify the Authority of such change prior to the 1205 adjustment of Rates, Contractor shall not be allowed to recover the cost associated with such change. In 1206 such case, Contractor may identify the revised Governmental Fee amount in the subsequent Rate 1207 adjustment requests, but such requests shall not include any surcharge, catch-up payments, or other 1208 recovery of costs incurred in the prior Rate period. 1209 The revenue requirement for the Governmental Fee portion of the Rate shall be divided by the actual 1210 Tonnage of Solid Waste, Recyclable Materials, C&D Materials, Organic Materials, and Dry Materials 1211 received by Contractor from the Franchised Collector in the most recently completed twelve month 1212 period to determine the adjusted Rate. 1213
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1214
For example: 1215
If, the Governmental Fee revenue requirement was one million seven hundred thousand dollars 1216 ($1,700,000); and, 1217
If, the total tonnage received by Contractor from the Franchised Collector in the most recently 1218 completed twelve month period is one hundred fifty thousand (150,000) tons; 1219 Then, Governmental portion of the Rate would be eleven dollars and thirty three cents ($11.33). 1220
5.3.7 Calculation of the Adjusted Rate 1221
The adjusted portions of the Rate, as described in Sections 5.3.2 through 5.3.6, shall be added together 1222 to determine the Rate for the following Rate Year. Using the example calculations provided in Sections 1223
5.3.2 through 5.3.6 above, the revised adjusted per ton Rate would be calculated as: 1224 a) Revised Material Specific portion of the Rate =$70.53; plus, 1225 b) Revised HHW portion of the Rate = $4.00; plus, 1226
c) Revised Authority portion of the Rate = $6.00; plus, 1227 d) Revised Recycling Rebate portion of the Rate = -$4.91; plus, 1228 e) Revised Governmental Fee portion of the Rate = $11.33; equals 1229 f) Revised Rate = $86.95 1230
5.4 Establishment of Post-Collection Rate 1231
The Authority shall establish the Post-Collection Rate (PCR) amount for each Sector and collection 1232 service level annually, based on the revised Rate (as calculated under Section 5.3). Contractor, through 1233 the Franchise Collector’s billing system, may include the PCR in the total monthly rate charged to 1234 Customers based on the Authority-approved PCR for each collection service level. The PCR for each 1235 collection service level shall be measured in gallons for cart service, cubic yards for bin service, and tons 1236 for roll-off service. The PCR for each collection service level and Sector shall calculated and approved by 1237 the Authority based on the approved per-ton Rate and applicable annual tonnage amounts. The 1238 Authority may modify the structure of the PCR, for example among collection service levels within a 1239 Sector and/or among Sectors, provided that Contractor does not object to the revised structure on the 1240 demonstrable basis of Contractor’s loss resulting from such restructuring. Contractor’s objection must 1241 be filed with the Authority either in writing in advance of or through formal public comment at the 1242 meeting of the Authority Board of Directors where the establishment of the Rate and PCR are 1243 considered. 1244
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5.5 Other Adjustments to Compensation 1245
The Contractor may request the Authority’s consideration of an adjustment to Contractor’s 1246 compensation in the event of the following circumstances: 1247 • Enactment of new or changes to existing federal, State and local fees and surcharges mandated to 1248 be collected or paid by Contractor; 1249
• A Change in Law for which Contractor compliance is mandatory and that results in documented 1250 increases in the specific cost of providing Services pursuant to this Agreement; and, 1251 • Authority-requested changes in the scope of Services provided by the Contractor. 1252 The Authority shall consider such requests and shall not unreasonably deny an adjustment to Rates 1253 under the prescribed circumstances. In the case of the enactment of new or increased government or 1254 Franchise Agency fees and charges, the Authority shall approve the request as a pass-through out of 1255 schedule or during the next regularly scheduled adjustment. 1256 In the event of a special circumstances request for an adjustment to Rates, the Contractor shall 1257 document its estimate of the incremental change in costs associated with the special circumstance. The 1258 Authority may request additional information from the Contractor if the documentation provided is 1259 determined to be insufficient. The Authority may consider information provided by the Contractor along 1260 with information from other sources to estimate the cost associated with such a special circumstance. In 1261 the event the Contractor requests an interim Compensation adjustment in accordance with this Section 1262 and to the extent Contractor’s Application is based on costs associated with Affiliated or Related Party 1263 Entities, Contractor shall provide all information requested by the Authority as part of its review of 1264 Contractor’s application, including, but not limited to, all information from Related Parties requested by 1265 the Authority regarding any transaction between Contractor and any Related Party Entity or Affiliate 1266 relating to Contractor’s performance under this Agreement. 1267 The following items shall not be considered in the adjustment of the Rate or PCR established under this 1268 Agreement: 1269
• Changes in the price of fuel; 1270
• Decreases in Recycling revenues (except as specifically contemplated in Section 5.3.5) due to 1271 changes in market conditions or any other factor from the sale of Recyclable Materials; 1272 • Increases in the costs of Solid Waste, Recyclable Materials, Organic Materials, or C&D Material 1273 Processing not incurred as a result of Changes in Law; 1274 • Increases in Transportation time and/or costs related to provision of Services provided under the 1275 Agreement; 1276
• Changes in the number of Customers due to changes in population or housing/business 1277 development or annexations; 1278
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• Changes in Customer subscription levels (e.g., as Customers subscribe to Recycling and Organics 1279 Collection Services they may be able to reduce Solid Waste Collection, resulting in a potential 1280 revenue loss to the Contractor); 1281
• Changes in the volume or composition of materials; 1282 • Changes in the Approved Processing Facilities used to perform Services, unless those changes to 1283 facilities are the direct result of an Authority directed change in scope; or, 1284 • Cost for providing Enhanced Collection Services described in Exhibit 2.4.6, provided that nothing in 1285 this Agreement shall prohibit the Franchised Collector from recovering such costs under the 1286 provisions of their contract with the Franchising Agency(ies). 1287 1288
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ARTICLE 6 1289
INDEMNITY, INSURANCE, AND PERFORMANCE BOND 1290
6.1 Defense and Indemnification 1291
Contractor shall hold harmless, defend and indemnify Authority and its officers, officials, employees and 1292 volunteers from and against any and all liability, loss, damage, expense, costs (including without 1293 limitation costs and fees of litigation) of every nature arising out of or in connection with Contractor’s 1294 performance of work hereunder or its failure to comply with any of its obligations contained in this 1295 Agreement, except such loss or damage which was caused by the active negligence or willful misconduct 1296 of the Authority (including the Persons described in the definition of Authority in Exhibit 1). However, if 1297 a final judgment or resolution of any Action allocates Liability by determining that any portion of Liability 1298 is attributable to a wrongful or active negligent act, error or omission of the Authority, the Authority 1299 shall pay those allocated portions of Liabilities and of defense costs. 1300
6.1.1 Agreement Defense 1301
Contractor shall defend, at its sole cost and expense, with counsel approved by the Authority, the 1302 Authority (including the Persons described in the definition of Authority in Exhibit 1) in any Actions that 1303 assert or allege Liabilities paid, incurred or suffered by, imposed upon or asserted against, the Authority 1304 (including the Persons described in the definition of Authority in Exhibit 1) that result or are claimed to 1305 have resulted directly or indirectly by Contractor’s negligent performance or non-performance of this 1306 Agreement, including the following: 1307
(1) Contractor negligence or misconduct: the wrongful, willful or negligent act, error or omission, 1308 or the misconduct of the Contractor (including the Persons described in the definition of Contractor in 1309 Exhibit 1); 1310
(2) Failure to comply with Applicable Law: Contractor’s failure or alleged failure to comply with 1311 Applicable Law or any alleged Violation thereof, including any Actions in connection with its Permits; 1312 (3) Breach of representation: Contractor’s breach of any representation, warranty or covenant 1313 made in this Agreement; or, 1314
(4) Challenges to Agreement: legal challenge to the authority of the Authority to enter into this 1315 Agreement or to contract out Services, regardless of the legal theory advanced or relied upon by any 1316 interested third party, including any appeals necessary to validate that authority or the Agreement. 1317 Authority reserves the right to retain, at its sole cost and expense, co-counsel and Contractor shall direct 1318 Contractor’s counsel to assist and take direction from such co-counsel with respect to Authority’s 1319 defense. 1320
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6.1.2 Agreement Indemnification 1321
Contractor shall indemnify, release, and hold harmless, at its sole cost and expense, the Authority 1322 (including the Persons described in the definition of Authority in Exhibit 1) from and against all Liabilities 1323 paid, incurred or suffered by, imposed upon or asserted against, the Authority (including the Persons 1324 described in the definition of Authority in Exhibit 1) that result or are claimed to have resulted directly 1325 or indirectly by Contractor’s performance or non-performance of this Agreement, including the items 1326 listed in preceding Section 6.1.1, whether or not those Liabilities are litigated, settled or reduced to 1327 judgment and whether or not those Liabilities are caused in part by any wrongful or negligent act, error 1328 or omission of any Person indemnified under this Agreement. However, if a final judgment or resolution 1329 of any Action allocates Liability by determining that any portion of Liability is attributable to a wrongful 1330 or active negligent act, error or omission of the Authority (including the Persons described in the 1331 definition of Authority in Exhibit 1), the Authority shall pay those allocated portions of Liabilities and of 1332 defense costs 1333
6.1.3 Unpermitted Waste Defense and Indemnification 1334 Contractor shall defend, indemnify, and hold harmless at its sole cost and expense with counsel 1335 approved by the Authority, the Authority (including the Persons described in the definition of Authority 1336 in Exhibit 1) in any Actions that assert or allege Liabilities paid, incurred or suffered by, imposed upon or 1337 asserted against, the Authority that result or are claimed to have resulted directly or indirectly from the 1338 presence, Disposal, escape, migration, leakage, spillage, discharge, release or emission of Unpermitted 1339 Waste or petroleum to, in, on, at, or under the Landfill or Approved Processing Facilities, whether: 1340 (1) in one or more instance, 1341
(2) threatened or transpired, 1342
(3) Contractor is negligent or otherwise culpable, or 1343 (4) those Liabilities are litigated, settled, or reduced to a final judgment. 1344 For purposes of this Indemnity, Liabilities includes, in addition to those included in Exhibit 1, Liabilities 1345 arising from or attributable to any operations, repair, clean-up or detoxification, or preparation and 1346 implementation of any removal, remedial, response, Closure, Post-Closure or other plan, regardless of 1347 whether undertaken due to government directive or action, such as remediation of surface or ground 1348 water contamination and replacement or restoration of natural resources. 1349 The foregoing indemnity is intended to operate as an agreement pursuant to 42 U.S.C. Section 9607(e) 1350 and California Health and Safety Code Section 25364, to insure, protect, hold harmless and indemnify 1351 the Authority from liability in accordance with this Section. 1352
6.1.4 Environmental Indemnity 1353
Contractor shall defend, indemnify, and hold the Authority harmless against and from any and all claims, 1354 suits, losses, penalties, damages, and liability for damages of every name, kind and description, including 1355 215
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attorneys’ fees and costs incurred, attributable to the negligence or willful misconduct of Contractor in 1356 handling Unpermitted Waste. 1357
6.1.5 HHW Services Indemnity and Insurance 1358
Contractor shall require its HHW services Subcontractor to fully indemnify, defend, and hold harmless 1359 both the Authority and Contractor from and against any and all liability, loss, damage, expense, costs 1360 (including without limitation costs and fees of litigation) of every nature arising out of or in connection 1361 with HHW services Subcontractor’s performance of activities, operations, and final disposal or recycling 1362 associated with the Household Hazardous Waste Facility, except such loss or damage which was caused 1363 by the active negligence or willful misconduct of the Authority or Contractor. Furthermore, the 1364 subcontractor shall maintain certificates of insurance for Professional and Pollution Legal Liability 1365 naming both the Authority and Contractor as an additional insured, to the extent available, in the 1366 minimum amounts of three million dollars ($3,000,000) per occurrence and five million dollars 1367 ($5,000,000) in the aggregate. In the event that the HHW services Subcontractor is unable to meet the 1368 required minimum insurance amounts, then Contractor shall take all reasonable actions to provide an 1369 equivalent indemnity of the Authority in the interim, while the Authority and Contractor meet and 1370 confer to develop an alternative that adequately protects the Authority. 1371
6.2 Insurance Policies 1372
6.2.1 Types and Amounts; Deductibles and Self-Insured Retentions 1373 As of January 1, 2014, Contractor shall secure and maintain, and enter into agreements to cause its 1374 Subcontractors, if any, to secure and maintain or provide that Subcontractors are insureds under 1375 Contractor's policies, in full force and effect the types and amounts of insurance coverage, together with 1376 related specified deductibles and endorsements, listed in Exhibit 6.2 or required by Applicable Law, 1377 whichever is greater, in a form acceptable to Authority. 1378 The Contractor must declare to Authority any self-insured retentions. Authority at its sole discretion 1379 may (i) approve them; or, (ii) require Contractor to reduce or eliminate them as respects the Authority, 1380 its officials and employees; or to procure a bond or letter of credit guaranteeing payment of losses and 1381 related investigations, claim administration and defense expense. 1382 If any third Person makes a claim against Contractor or any Subcontractors exceeding the amount of any 1383 deductibles, self-insured reserves, letters of credit, or bonds guaranteeing payment thereof, Contractor 1384 shall promptly Notify the insurer, bond surety or letter of credit provider and Authority thereof. 1385
6.2.2 Required Provisions 1386
(i) Primary. Policies shall always be primary with respect to the Contractor's Services and the 1387 Authority, the Authority's Affiliated employees, the Board of Directors, officers, officials, agents, 1388 assigns and volunteers (Authority insureds). 1389
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(ii) Additional insureds. Authority insureds must be included as additional insureds by endorsement 1390 under the Comprehensive General, Automobile Liability, Environmental Impairment Liability Policies 1391 and any other pollution policies secured by Contractor. A copy of the endorsement or evidence of 1392 blanket or contractual additional insured status must be submitted with the certificate(s) of insurance. 1393 (iii) Excess, not contributory. Insurance coverage written specifically for the Authority must be 1394 considered excess and not contributory and any insurance or self-insurance maintained by Authority 1395 insureds is in excess of Contractor's insurance and shall not contribute with it. 1396 (iv) Separate application. All insurance must apply separately to each insured against whom a claim is 1397 made or suit is brought, except with respect to the limits of the insurer's liability. 1398 (v) No special limitations. Coverage shall contain no special limitations on the scope of protection 1399 afforded to Authority insureds, except in cases of fraud perpetrated by the Authority. 1400 (vi) Reporting provisions. Any failure to comply with reporting provisions of policies shall not affect 1401 coverage provided to Authority insureds. 1402
(vii) Waiver of subrogation. Insurer, including workers compensation and general liability policy 1403 insurers, by endorsement must waive all rights of subrogation against Authority insureds for losses 1404 arising from performance of Services by Contractor, except for the sole negligence of the Authority. 1405 B. Insurers. Contractor shall procure insurance from insurers approved by Authority Risk Manager, 1406 an admitted company in California and authorized to do business there, having not less than size 1407 category VII and a rating of A or better ("A-VII") by A.M. Best Company, Inc. 1408 C. Endorsements; Notices to Authority of Cancellation. Policies must bear endorsements in 1409 substantially the form provided in Exhibit 6.2, providing that coverage shall not be suspended, voided, 1410 canceled by either Party, reduced in coverage or limits, not renewed, or otherwise changed or modified 1411 except after prior written notice by e-mail, to the Authority thirty (30) Calendar Days in advance, or if 1412 the reason for cancellation is non-payment of premiums, ten (10) Calendar Days in advance. 1413 Endorsements shall not contain mere "best effort" modifiers or relieve the insurer from its responsibility 1414 to give the Authority notice. 1415
D. Evidence of Coverage. As of January 1, 2014, Contractor shall provide certificates of insurance 1416 and original endorsements required under this Agreement, signed by an authorized representative of 1417 the insurance company and including the signatory's company affiliation and title. Upon Authority’s 1418 request, Contractor shall provide, or cause to be provided, to the Authority documentation acceptable 1419 to the Authority verifying that the individual signing those documents are authorized by the insurer to 1420 bind coverage on the insurer’s behalf. At that time and thereafter simultaneously with renewal of the 1421 policies, Contractor shall file with the Authority a certificate of insurance and endorsements, in form and 1422 substance satisfactory to the Authority (including type and amount of coverage, effective dates, and 1423 expiration dates) signed or counter-signed by an authorized officer of the broker, certifying that the 1424 coverage has not lapsed and shall remain in effect at all times during the term of the policy. 1425 217
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E. Contractor Compliance. Contractor shall comply with all requirements of policies and the 1426 insurers. Carrying insurance shall not relieve Contractor from any obligations under this Agreement. 1427 Nothing in this Agreement may be construed as limiting in any way the extent to which the Contractor 1428 may be held responsible for payments of damages to Persons or property resulting from Contractor's or 1429 any Subcontractors’ performance of Services. 1430
F. Worker’s Compensation. Contractor shall provide workers’ compensation coverage as required 1431 by State law, and prior to Janaury 1, 2014 pursuant to this Agreement, Contractor shall file the following 1432 statement with the Authority. 1433
“I am aware of the provisions of Paragraph 3700 of the Labor Code that require every employer to be 1434 insured against liability for workers' compensation or to undertake self-insurance in accordance with the 1435 provisions of that code, and I shall comply with such provisions before commencing any Services 1436 required by this Agreement. 1437
The Person executing this Certificate on behalf of Contractor affirmatively represents that she/he has 1438 the requisite legal authority to do so on behalf of Contractor, and both the Person executing this 1439 Agreement on behalf of Contractor and Contractor understand that the Authority is relying on this 1440 representation in entering into this Agreement.” 1441
6.3 Performance Surety 1442
Within seven (7) Calendar Days of the Authority’s notification to Contractor that the Authority has 1443 executed this Agreement, Contractor shall file with the Authority a letter of credit or a performance 1444 bond, payable to the Authority, securing the Contractor's performance of its obligations under this 1445 Agreement and such bond shall be renewed annually if necessary so that the performance bond is 1446 maintained at all times during the Term. The surety shall be in the amount of two million dollars 1447 ($2,000,000) and shall be used to secure the performance of the Contractor’s Post-Collection Services 1448 obligations under the Agreement. The bond shall be executed as surety by a corporation authorized to 1449 issue surety bonds in the State of California that has a rating of A or better in the most recent edition of 1450 Best’s Key Rating Guide, and that has a record of service and financial condition satisfactory to the 1451 Authority. 1452
1453
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ARTICLE 7 1454
DEFAULT BY CONTRACTOR AND TERMINATION 1455
7.1 Contractor Default 1456
Each of the following shall constitute an event of default by Contractor (“Contractor Default”), under 1457 this Agreement: 1458
7.1.1 Service Defaults 1459
(1) Failure to Perform. Contractor’s failure to perform any duty or obligation in whole or in part for 1460 more than one (1) consecutive Working Day or more than five (5) total Working Days in any Calendar 1461 Year. A failure to perform may also include Contractor’s failure to fully implement the Recycling, 1462 Composting, other Processing, and education and outreach programs required under this Agreement 1463 which may be determined as part of the performance review described in Section 4.21. 1464 (2) Uncured Breach. Contractor fails or refuses to perform any of its obligations under this 1465 Agreement; the Authority Contract Manager notifies the Contractor in writing that a specific failure or 1466 refusal has occurred which shall, unless corrected, in its opinion, give the Authority a right to 1467 terminate this Agreement; and the Contractor does not correct the breach within twenty (20) 1468 Calendar Days of receiving the Authority Contract Manager's Notice thereof. However, if the breach is 1469 not capable of cure within twenty (20) Calendar Days, Contractor shall promptly provide the Authority 1470 Contract Manager a Notice explaining why Contractor believes it needs additional time to effectuate a 1471 cure, together with a schedule therefore, and shall diligently proceed to cure the breach within that 1472 schedule, whereupon Authority, at its sole discretion, may (a) accept Contractor's schedule of cure, or 1473 (b) make a written demand that Contractor cure the default within an alternative reasonable time 1474 period set by Authority. 1475
(3) Repeated Breach. Contractor fails or refuses to perform any of its obligations under this 1476 Agreement repeatedly or habitually, as documented in writing, whether or not specific instance of 1477 failure or refusal has been previously cured. 1478
(4) Failure to Comply With Applicable Law. Contractor fails to comply with Applicable Law that is 1479 material to this Agreement. This does not constitute a default if: a) after notice of violation or non-1480 compliance the Contractor is actively disputing its compliance with Applicable Law before any court or 1481 administrative agency; or, b) after exhaustion of all appeals, a final judgment in favor of Contractor is 1482 reached. 1483
(5) Criminal Activity. The occurrence of any Criminal Activity related to this Agreement by any 1484 employee, supervisor, manager, officer, or director of Contractor, except that Contractor may cure the 1485 breach by terminating any and all individuals involved in the Criminal Activity within five (5) Working 1486 Days of a notice from the Authority Contract Manager. 1487 219
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7.1.2 Performance Assurance Defaults 1488
(1) Failure to Provide Insurance. Contractor fails to provide insurance in accordance with Section 1489
6.2, or Guaranty Agreement in accordance with Section 8.20; 1490 (2) Failure to Provide Assurances of Performance. Contractor fails to timely provide assurances of 1491 performance in accordance with Section 8.16; 1492
(3) Failure to Pay Authority. Contractor fails to timely pay Authority any amounts due and owing 1493 to Authority, including procurement reimbursement in accordance with Section 2.4.4, reimbursement 1494 of costs for alternative services in accordance with Section 7.3 and liquidated damages in accordance 1495 with Section 8.19; 1496
(4) Transfer, Assignment. Contractor Assigns this Agreement without Authority approval required 1497 by Section 8.5; 1498
(5) Seizure, Attachment. Any asset used to provide Services is seized, attached, or levied upon 1499 (other than a pre-judgment attachment) so as to substantially impair Contractor's ability to timely and 1500 fully perform Services, and which cannot be released, bonded, or otherwise lifted within forty-eight 1501 hours (48), excepting weekends and Holidays; 1502
(6) Insolvency, Bankruptcy, Liquidation. Contractor files a voluntary claim for debt relief under any 1503 applicable bankruptcy, insolvency, debtor relief, or other similar law now or hereafter in effect, or 1504 shall consent to the appointment of or taking of possession by a receiver, liquidator, Assignee (other 1505 than as a part of a transfer of assets no longer used to provide Services or backup Services), trustee 1506 (other than as security of an obligation under a deed of trust), custodian, sequestration, administrator 1507 (or similar official) of Contractor for any part of Contractor's operating assets or any substantial part of 1508 Contractor's property, or shall make any general Assignment for the benefit of Contractor's creditors, 1509 or shall fail generally to pay Contractor's debts as they become due or shall take any action in 1510 furtherance of any of the foregoing. The foregoing notwithstanding, nothing herein shall or is intended 1511 to affect the jurisdiction and authority of any trustee or receiver in connection with bankruptcy 1512 proceedings pursuant to the federal Bankruptcy Act or any similar or successor statute. 1513 A court, having jurisdiction, enters a decree or order for relief in respect of the Agreement, in any 1514 involuntary case brought under any bankruptcy, insolvency, debtor relief, or similar law now or 1515 hereafter in effect, or Contractor consents to or fails to oppose any proceeding, or that court enters a 1516 decree or order appointing a receiver, liquidator, Assignee, custodian, trustee, sequestrator, 1517 administrator (or similar official) of the Contractor or for any part of the Contractor's operating 1518 equipment or assets, or orders the winding up or liquidation of the affairs of the Contractor. 1519
7.1.3 Miscellaneous 1520
(1) False Representations; Breach of Representations or Warranties. Contractor makes a 1521 representation, certification, or warranty in this Agreement or pursuant to this Agreement which 1522 Contractor knows, or in the course of diligently conducting business and providing Services should 1523 220
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have known, is untrue as of the date thereof. Contractor makes a representation or fails to make a 1524 disclosure, whether within this Agreement or otherwise, to the Authority in connection with, or as a 1525 material inducement to, entering into this Agreement or any future amendment to this Agreement, 1526 which representation or failed disclosure is false or misleading in any material respect when made. 1527 (2) Default under Guaranty Agreement. Any default occurs under Section (24) of the Guaranty 1528 Agreement, which default for failure to pay the Guaranty listed in item (24)(a) thereof is not timely 1529 cured as provided therein, and which default for breach listed in item (24)(c) thereof continues for the 1530 period provided therein. 1531
7.2 Right to Suspend or Terminate Agreement 1532
7.2.1 Termination Events 1533
Authority may terminate this Agreement in the following events: 1534 (1) Contractor Default: the repeated occurrence of an uncured material Contractor Default; 1535 (2) Failure to Perform Core Obligations: If after exhausting the remedies available in Sections 4.18 1536 and/or 8.12, for whatever reason, Contractor is unable to perform its core obligations under this 1537 Agreement for a period of thirty (30) Calendar Days beyond the timeline described in Section 8.12.; 1538 (3) Contractor’s use of non-approved Alternative Facility: the Contractor provides services 1539 through an alternative facility contrary to the direction of the Authority as required in Section 4.12. 1540 (4) Assignment of Guaranty Agreement Without Consent: the Guarantor Assigns the Guaranty 1541 Agreement without consent required by Section (3) of the Guaranty Agreement despite the Authority 1542 Board of Directors action denying Authority consent, and on or before fifteen (15) Calendar Days 1543 thereafter, the Guarantor does not provide Authority with a substitute Guarantor or alternative 1544 financial credit support satisfactory to Authority. 1545
7.2.2 Notice 1546
Notice of termination may be effective no sooner than: 1547 (1) Immediately or upon other period stated by Authority with respect to Contractor Defaults 1548 described in Section 7.1.2 (including, but not limited to, Failure to Provide Insurance) and, to the 1549 extent permitted by Applicable Law, Section 7.1.2 (Insolvency, Bankruptcy, Liquidation); 1550 (2) Two (2) Working Days after giving Contractor a Notice with respect to a Contractor Default 1551 described in Section 7.1.1 (Failure to Perform); and, 1552 (3) Fifteen (15) Working Days after giving Contractor a Notice with respect to all other Contractor 1553 Defaults or termination events. 1554
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7.2.3 Contractor's Obligations Upon Expiration or Termination 1555 (1) Pay Outstanding Amounts . Contractor shall pay Authority any amounts, including liquidated or 1556 compensatory damages, then accrued and payable, net of any amounts due from Authority in 1557 accordance with Section 4.13. 1558
(2) Indemnities. Contractor shall meet its obligations under any Indemnifications including any 1559 such obligations and Indemnifications that survive the termination of this Agreement. 1560
7.3 Right to Perform 1561
In the events described in items (1) (Contractor Default) and (3) (Assignment of Guaranty Agreement 1562 Without Consent) of Section 7.2.2, the Authority, at its sole discretion, may perform and complete, by 1563 contract or otherwise, Services or a portion thereof (other than operating the Approved Processing 1564 Facilities and Landfill which are the property of Contractor) and incur all expenses necessary for full and 1565 timely provision of Services. 1566
7.4 All Other Available Remedies 1567
If Authority suspends or terminates this Agreement, it may exercise remedies of damages and any other 1568 available remedies at law and in equity (including specific performance).Contractor acknowledges that 1569 Authority's remedy of damages for a breach of this Agreement by Contractor in accordance with this 1570 Section may be inadequate for reasons including: 1571 (i) The urgency of timely, continuous and high-quality waste management Service under this 1572 Agreement, including, but not limited to, Disposal of wastes which constitute a threat to public health; 1573 (ii) The long time and significant investment of money and personnel (both Authority staff, elected 1574 Authority officials and private consultants, including procurement consultants, Diversion consultants, 1575 and procurement counsel) required to structure a competitive procurement; draft a request for 1576 proposal; advertise the procurement and solicit proposals; distribute the Request for Proposal, hold 1577 pre-proposal meetings and respond to proposers questions about the procurement; revise documents 1578 based on solicited proposer comment; evaluate proposals; and finalize and award this Agreement; 1579 and, 1580
(iii) The Authority's reliance on Contractor's technical waste management expertise. 1581 Consequently, Authority is entitled to all available equitable remedies, including injunctive relief. 1582 Compensatory damages include amounts equal to any Authority’s Reimbursement Costs or other money 1583 Contractor has previously paid to the Authority but that are subsequently Recovered from the Authority 1584 by a trustee in bankruptcy as preferential payments or otherwise and Authority’s Reimbursement Costs 1585 of re-procuring an agreement for services to replace Services if this Agreement is terminated due to 1586 Contractor Default. 1587
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7.5 Authority's Remedies Cumulative 1588
The Authority's rights to seek dispute resolution in accordance with Section 8.17, suspend or terminate 1589 this Agreement in accordance with Section 7.2, to perform under Section 7.3, or to seek other available 1590 remedies under Section 7.4, are not mutually exclusive. Exercise of one remedy is not an election of 1591 remedies but is cumulative with any other remedies under this Agreement. 1592
7.6 Waiver 1593
The Authority’s waiver of any breach or Contractor Default shall not be deemed to be a waiver of any 1594 other breach or Contractor Default including ones with respect to the same obligations under this 1595 Agreement; provided however, that nothing herein abrogates applicable statutes of limitations for any 1596 claims which were or could have been brought. The Authority's decision not to demand damages shall 1597 not be deemed a waiver of any Contractor breach under this Agreement. The Authority's subsequent 1598 acceptance of any damages or other money paid by Contractor shall not be deemed to be a waiver by 1599 the Authority of any pre-existing or concurrent breach or Contractor Default; provided however, that 1600 nothing herein abrogates applicable statutes of limitations for any claims which were or could have 1601 been brought . 1602
Contractor acknowledges that it is solely responsible for providing Services and except as provided 1603 below in this paragraph, by this Agreement irrevocably and unconditionally waives defenses to the 1604 payment and performance of its obligations under this Agreement based upon failure of consideration; 1605 contract of adhesion; impossibility or impracticability of performance; commercial frustration of 1606 purpose; or the existence, non-existence, occurrence or non-occurrence of any foreseen or unforeseen 1607 fact, event, or contingency that may be a basic assumption of Contractor with regard to any provision of 1608 this Agreement; provided, however that Contractor does not waive defenses to impossibility or 1609 impracticability of performance; commercial frustration of purpose; or the existence, non-existence, 1610 occurrence or non-occurrence of any unforeseeable fact, event, or contingency that may arise during 1611 the Term of this Agreement. Contractor does not waive any defenses of Uncontrollable Circumstances at 1612 any time. 1613
1614
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ARTICLE 8 1615
OTHER AGREEMENTS OF THE PARTIES 1616
8.1 Relationship of Parties 1617
The Parties intend that Contractor shall perform the Services required by this Agreement as an 1618 independent Contractor engaged by the Authority and not as an officer or employee of the Authority, 1619 nor as a partner of or joint venturer with the Authority. No employee or agent of Contractor shall be or 1620 shall be deemed to be an employee or agent of the Authority. Contractor shall have the exclusive 1621 control over the manner and means of conducting Services, and all Persons performing those Services, 1622 except for prescriptive requirements in this Agreement established by the Authority or Authority’s right 1623 to change the scope of Services in accordance with Section 4.20. Contractor is solely responsible for the 1624 acts and omissions of its officers, employees, subcontractors, and agents, none of whom is deemed an 1625 officer, employee, subcontractor, or agent of the Authority. Neither Contractor nor its officers, 1626 employees, subcontractors, or agents shall obtain any rights to retirement benefits, workers' 1627 compensation benefits, or any other benefits that accrue to the Authority employees. Contractor 1628 expressly waives any claim it may have or acquire to those benefits and shall defend and indemnify the 1629 Authority if any of its officers, employees, subcontractors, or agents make claims for such benefits. 1630
8.2 Compliance with Law 1631
Contractor shall perform, and shall cause any Contractors or subcontractors to perform, all Services in 1632 accordance and compliance with Applicable Law, whether or not referenced specifically in the text of 1633 this Agreement and regardless of whether specified Service obligations may be stated less stringently 1634 than Applicable Law. If any provision of this Agreement is more stringent than Applicable Law, 1635 Contractor must comply with that provision. 1636
Reference in this Agreement to particular provisions or requirements of Applicable Law shall not be 1637 construed to limit Contractor's obligation to comply with all provisions of Applicable Law. They are 1638 deemed to include reference to implementing rules and regulations. They are intended to facilitate 1639 Contractor’s satisfaction of its performance obligations and Authority’s administration and specific 1640 enforcement of this Agreement, and may not be construed to imply lack of obligation to comply with 1641 other provisions or requirements of Applicable Law not referred to or cited in this Agreement. If any 1642 Applicable Law specifically referenced or cited in this Agreement is modified, amended or repealed, that 1643 reference or citation shall be deemed to refer to that amendment or modification, or to any re-codified 1644 or substituted Applicable Law. 1645
8.3 Governing Law 1646
This Agreement shall be governed by, and construed and enforced in, accordance with the Applicable 1647 Laws of the State, without giving effect to the State’s principles of conflicts of laws. 1648 224
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8.4 Further Assurances 1649
Each Party shall execute and deliver any instruments and to perform any acts as may be necessary or 1650 reasonably requested by the other in order to give full effect to this Agreement. 1651
8.5 Assignment 1652
8.5.1 Assignment by Authority 1653
The Authority may Assign this Agreement individually or jointly to any Member Agency (excluding the 1654 City of El Cerrito), the County of Contra Costa, a successor joint powers authority, or other public entity 1655 succeeding to a majority of the Authority’s service area obligations. In any Assignment, the Authority 1656 Board of Directors shall take such actions as may be necessary to ensure that the Assignee has the legal 1657 authority to accept the Assignment and undertake the Authority’s obligations. 1658 A. Assignment by Member Agency Withdrawal 1659
In the event a Member Agency, other than the City of El Cerrito, seeks to withdraw from the Authority 1660 before the end of the Agreement’s Term, the Member Agency’s withdrawal is conditioned upon its 1661 consent to Assignment of this Agreement. The act of withdrawal shall also operate as the Authority’s 1662 consent to Assignment of its respective rights and obligations under this Agreement to the withdrawing 1663 Member Agency. Any additional terms and conditions of withdrawal as well as the details of assuming 1664 the specific obligations of this Agreement shall be governed by the provisions of the Authority’s Joint 1665 Powers Agreement, as amended, and the decisions of the Authority Board of Directors. 1666 B. Assignment by Dissolution 1667
In the event the Authority seeks to dissolve before the end of the Agreement’s Term, such dissolution is 1668 conditioned upon the agency(ies) or successor joint power authority’s individual or collective 1669 acceptance of Assignment of this Agreement as well as the respective obligations of the Authority. The 1670 Assignee’(s) individual or collective consent to Assignment shall effectuate such dissolution of the 1671 Authority. The Authority Board of Directors shall take such actions as may be necessary to ensure its 1672 obligations hereunder are properly assumed by the Assignee Member Agencies. 1673
8.5.2 Assignment by Contractor 1674
A. Permitted Assignments 1675
Contractor shall have the right to Assign this Agreement to any other company which is owned and 1676 controlled by Republic Services, Inc., provided that: (i) such company is qualified to do business in 1677 California, and assumes in writing all of Contractor’s obligations under this Agreement prior to, or 1678 concurrently with, such Assignment; and, (ii) the corporate guaranty described in Section 8.20 remains 1679 in full force and effect and that such Assignment shall have no adverse impact on the Rates charged or 1680 quality services provided under this Agreement. Contractor shall not otherwise Assign its rights nor 1681 delegate or otherwise transfer its obligations under this Agreement to any other Person without the 1682 prior written consent of the Authority, provided consistent with the requirements of this Section 8.5.2. 1683 225
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Any such assignment made without the written consent of Authority shall be void and the attempted 1684 assignment shall constitute a breach of this Agreement. 1685 B. Assignment Defined 1686
For the purpose of this section when used in reference to Contractor, “Assignment” shall include, but 1687 not be limited to: (i) a sale, exchange or other transfer of substantially all of Contractor’s assets 1688 dedicated to Service under this Agreement to a third party; (ii) a sale, change or other transfer of 1689 outstanding common stock of Contractor to a third party provided said sale, exchange or transfer may 1690 result in a change of control of Contractor; (iii) any dissolution, organization, consolidation, merger, re-1691 capitalization, stock issuance or reissuance, voting trust, pooling agreement, escrow arrangement, 1692 liquidation or other transaction to which results in a change of Ownership or control of Contractor; (iv) 1693 any Assignment by operation of law, including insolvency or bankruptcy, making Assignment for the 1694 benefit of creditors, writ of attachment for an execution being levied against this agreement, 1695 appointment of a receiver taking possession of Contractor’s property, or transfer occurring in the event 1696 of a probate proceeding; and, (v) any combination of the foregoing (whether or not in related or 1697 contemporaneous transactions) which has the effect of any such transfer or change of Ownership, or 1698 change of control of Contractor. 1699
Contractor acknowledges that this Agreement involves rendering a vital service to the Authority’s 1700 residents and businesses, and that the Authority has selected Contractor to perform the Services 1701 specified Herein based on: (i) effective and responsible fashion, at all times in keeping with applicable 1702 environmental laws, regulations, and best management practices, and (ii) Contractor’s obligations to the 1703 Authority under this Agreement. The Authority has relied on each of these factors, among others, in 1704 choosing Contractor to perform the Services to be rendered by Contractor under this Agreement. 1705 C. Contractor Request for Assignment 1706
If Contractor requests the Authority’s consideration of and consent to an Assignment, the Authority may 1707 reasonably deny or approve such requests. No request by Contractor for consent to any Assignment 1708 need be considered by Authority unless and until Contractor has met the following requirements: 1709 i. Contractor shall pay Authority its reasonable expenses for attorney’s fees and 1710 investigation costs necessary to investigate the suitability of any proposed Assignee, and to review and 1711 finalize any documentation required as a condition for approving any such Assignment. An initial, 1712 retainer deposit payment to reimburse such costs shall be made in the amount of one hundred 1713 thousand dollars ($100,000) to the Authority by Contractor or the proposed assignee along with 1714 Contractor’s formal request for the Authority’s consideration of an Assignment. Authority shall draw 1715 against the retainer for its actual reasonable costs of the Assignment review. In the event such costs 1716 exceed the deposit amount, Contractor shall make the additional payment, beyond the initial deposit 1717 amount, upon approval of the assignment. In the event that the actual costs of the review are less than 1718 the retainer deposit amount, such unused portion of the retainer shall be returned upon the conclusion 1719 of the review of the Assignment. 1720
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ii. Contractor shall furnish Authority with audited financial statements of the proposed 1721 Assignee’s operations for the Immediately preceding three (3) operating years. 1722 iii. Contractor shall furnish Authority with satisfactory proof: (i) that the proposed Assignee 1723 has at least ten (10) years of Solid Waste management experience on a scale equal to or exceeding the 1724 sale of operations conducted by Contractor under this Agreement; (ii) that in the last five (5) years, the 1725 proposed Assignee has not suffered any significant citations or other censure from any federal, State, or 1726 local agency having jurisdiction over its Solid Waste management operations due to any significant 1727 failure to comply with State, federal, or local Environmental Laws and that the Assignee has provided 1728 Authority with a complete list of such citations and censures; (iii) that the proposed Assignee has at all 1729 times conducted its operations in an environmentally safe and conscientious fashion; (iv) that the 1730 proposed Assignee conducts its Solid Waste management practices in accordance with sound Solid 1731 Waste management practices in full compliance with all federal, State, and local laws regulating the 1732 collection and Disposal of Solid Waste including Hazardous Materials; and, (v) of any other information 1733 required by Authority to ensure the proposed Assignee can fulfill the terms of this Agreement in a 1734 timely, safe, and effective manner. 1735
Under no circumstances shall Authority be obligated to consider any proposed Assignment if Contractor 1736 is in default at any time during the period of consideration. 1737
8.6 Binding on Successors 1738
The provisions of this Agreement shall inure to the benefit of and be binding on the successors and 1739 permitted Assigns of the Parties. 1740
8.7 Parties in Interest 1741
Nothing in this Agreement, whether expressed or implied, is intended to confer any rights on any 1742 Persons other than the Parties to it and their representatives, successors and permitted Assigns. 1743
8.8 Services Performed At Contractor’s Sole Expense 1744 Contractor shall perform Services solely for the compensation expressly provided for Herein. 1745
8.9 Notices and Communication 1746
Parties must present and express all reports, demands, requests, directions, selections, option exercises, 1747 orders, requests, proposals, reviews, comments, acknowledgments, approvals, consents, waivers, 1748 certifications and other communications made to each other under this Agreement in writing. 1749 Parties must provide Notices at the address provided in this Section below, in any of the following 1750 manners: 1751
(1) Personal delivery to a representative of the Parties, with signed receipt, 1752 227
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(2) Deposit in the United States mail, first class postage prepaid (certified mail, return receipt 1753 requested), or 1754
(3) Deposit with a commercial delivery service providing delivery verification. 1755 If to Authority: West Contra Costa Integrated Waste Management Authority 1756 Executive Director 1757
1 Alvarado Square 1758
San Pablo, CA 94806 1759
1760
With Copy to: West Contra Costa IWMA Counsel 1761
Meyers Nave 1762
555 12 th Street, Suite 1500 1763
Oakland, CA 94607 1764
1765
If to Contractor: Area President 1766
Republic Services, Inc. 1767
3260 Blume Drive, 2 nd Floor 1768
Richmond, CA 94806 1769
1770
With a copy to: Timothy Benter 1771
Vice President & Deputy General Counsel 1772
Republic Services, Inc. 1773
18500 North Allied Way 1774
Phoenix, AZ 85054 1775
1776
With an additional copy to: 1777
Scott W. Gordon 1778
Law Offices of Scott W. Gordon, APC 1779
1990 North Calif. Blvd., Suite 620 1780
Walnut Creek, CA 94596 1781
1782
Parties may change their address upon written Notice to the other Party. 1783
8.10 Authority Contract Manager 1784
The Authority has designated staff, the Authority Contract Manager, to be responsible for the 1785 monitoring and administration of this Agreement. Contractor shall meet and confer with the Authority 1786 Contract Manager to resolve differences of interpretation and implement and execute the requirements 1787 of this Agreement in an efficient, effective, manner that is consistent with the stated objectives of this 1788 Agreement. 1789
From time to time the Authority Contract Manager may designate other agents of the Authority or 1790 Franchise Agencies to work with Contractor on specific matters. In such cases, those individuals should 1791 be considered designates of the Authority Contract Manager for those matters to which they have been 1792 engaged. Such designates shall be afforded all of the rights and access granted thereto. In the event of a 1793 228
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dispute between the Authority Contract Manager’s designate and Contractor, the Authority Contract 1794 Manager’s determination shall be conclusive. 1795
In the event of dispute between the Authority Contract Manager and the Contractor regarding the 1796 interpretation of or the performance of Services under this Agreement, the Authority Contract 1797 Manager’s determination shall be conclusive except where such determination results in a material 1798 impact to the Contractor’s revenue and/or cost of operations. In the event of a dispute between the 1799 Authority Contract Manager and the Contractor results in such material impact to the Contractor, 1800 Contractor may appeal the determination of the Authority Contract Manager to the Authority Board of 1801 Directors, whose determination shall be conclusive. For the purposes of this section, “material impact” 1802 is an amount equal to or greater than thirty thousand dollars ($30,000). 1803
8.11 Duty of Contractor Not To Discriminate 1804
In the performance of all work and Services under this Agreement, Contractor shall not discriminate 1805 against any Person on the basis of that Person's race, color, religion, national origin, ancestry, age, 1806 physical handicap, medical condition, religion, marital status, sex or sexual orientation. Contractor shall 1807 comply with all Applicable Law regarding nondiscrimination, including those prohibiting discrimination 1808 in employment. 1809
8.12 Force Majeure 1810
Neither Party is deemed in breach or default of its duties, obligations (other than a payment obligation 1811 at the time due and owing), responsibilities or commitments under this Agreement to the extent that 1812 the breach or default is due to an Uncontrollable Circumstance, provided the Party exerted Reasonable 1813 Business Efforts to prevent the occurrence and mitigate the effects of the Uncontrollable Circumstance. 1814 The Party experiencing an Uncontrollable Circumstance and relying thereon shall give Immediate Notice 1815 thereof to the other Party, including describing performance under this Agreement for which it seeks to 1816 be excused; the expected duration of the Uncontrollable Circumstance; the extent Services may be 1817 curtailed; any requests or suggestions to mitigate the adverse effects of the Uncontrollable 1818 Circumstance; or any consequent adjustment of Rates in accordance with Section 5. 1819 Notwithstanding that Contractor's failure to timely and fully provide Services due to Uncontrollable 1820 Circumstances does not constitute a Contractor Default, following the continuance of the failure for 1821 ninety six (96) hours, Authority may at its sole discretion temporarily secure alternative services limited 1822 to the duration of the Force Majeure event. Following the continuance of that failure for thirty (30) 1823 Calendar Days, the Authority and Contractor shall meet and confer in good faith to determine 1824 alternative means to provide services. 1825
8.13 Maintenance of Records 1826
Contractor shall maintain Records at each of the Approved Processing Facilities and Landfill or elsewhere 1827 at the Contractor’s offices located within the County. 1828 229
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In order to determine the reasonableness of proposed changes in Service requested by Authority or 1829 Contractor, Contractor must maintain accurate, detailed financial and operational information in a 1830 consistent format and to make that information reasonably available to the Authority in a timely 1831 fashion. This Section is intended to effectuate these requirements. Contractor shall maintain accurate 1832 and complete accounting Records containing the underlying financial and operating data relating to and 1833 showing the basis for computation of all costs associated with providing Services. The accounting 1834 Records shall be prepared in accordance with Generally Accepted Accounting Principles (GAAP), which 1835 shall be consistently applied. The Parties acknowledge that the Contactor’s accounting procedures do 1836 not produce accounting Records that separate the financial and operational data related to specific 1837 services provided to the Authority, but rather the accounting Records are consolidated financial and 1838 operational data for all Services provided by Contractor or at the Approved Processing Facilities. 1839 Contractor shall retain all Records required to be maintained by this Agreement at least throughout the 1840 Term. 1841
Contractor shall retrieve Records specifically directed to be retained in accordance with this Agreement 1842 and make them available to the Authority within fifteen (15) Calendar Days of Authority Contract 1843 Manager’s direction. 1844
Contractor shall retrieve Records that are material, in the sole opinion of the Authority Contract 1845 Manager, to determining the cost of compliance with changes in governmental fees or regulations; 1846 verifying payment of governmental fees or taxes; determining cost impact related to modifications to 1847 scope of Services or new waste management programs or economic incentives; or determining an 1848 adjustment to the Disposal Rate as provided for in Section 5, and make them available to the Authority 1849 Contract Manager within fifteen (15) Calendar Days of the Authority Contract Manager’s direction. If 1850 Contractor is not required to maintain those Records under this Agreement, then the Authority Contract 1851 Manager and Contractor shall meet and confer in good faith to reach agreement on reasonable 1852 assumptions that are necessary to make determinations at issue. 1853
8.14 Right to Inspect Records 1854
Upon no less than one (1) Working Day’s notice and without interference from Contractor’s operations, 1855 the Authority, its auditors and other agents selected by the Authority, shall have the right, at its sole 1856 cost, during regular business hours as described in Section 4.6, to conduct on-site inspections of Records 1857 and to make and retain copies of any Records that are reasonably necessary to: (1) determine the cost 1858 of compliance with changes in governmental fees or regulations (in accordance with Section 5); (2) 1859 verify payment of governmental fees or taxes (in accordance with Section 5); (3) determine cost of 1860 modifications to scope of Services (in accordance with Section 4.20); or (4) determine cost of new 1861 programs or economic incentives (in accordance with Section 4.20). Contractor shall cooperate with the 1862 Authority Contract Manager, its auditors and other agents selected by the Authority, and shall make 1863 those Records available to the Authority Contract Manager, and Contractor shall provide the Authority 1864 Contract Manager copies of those Records (which the Authority may retain) at the Authority Contract 1865 Manager’s request; provided however that notwithstanding the foregoing, Contractor shall not be 1866 required to provide to Authority any Records containing or consisting of: 1867 230
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i) Trade secret confidential business information or documents (e.g. customer lists) with 1868 respect to any non-Authority users of the Approved Facilities or Landfill 1869 ii) Cost of service information which is not otherwise provided for in this Agreement 1870 iii) Proprietary processes, patents, or other intellectual property 1871 If the Authority Contract Manager so reasonably requests, Contractor shall make specified personnel 1872 available to assist the Authority Contract Manager in accessing Records. 1873
8.15 Compilation of Information for State Law Purposes 1874 Contractor shall compile information on amounts of Solid Waste delivered to the Landfill and Organic 1875 Materials, Recyclable Materials, Dry Materials, and C&D delivered to Approved Processing Facilities and 1876 the Landfill and other information, which the Authority may reasonably request, in order to meet its 1877 obligations under the Act. 1878
8.16 Right to Demand Assurances of Performance 1879
If Contractor: 1880
(i) Is the subject of any labor unrest including work stoppage or slowdown, sick-out, picketing or 1881 other concerted job action that affects Contractor’s performance under this Agreement; 1882 (ii) Appears in the judgment of the Authority to be unable to regularly pay its bills as they become 1883 due; or 1884
(iii) Is the subject of a civil or criminal proceeding brought by a federal, State, regional, or local 1885 agency for Violation of an Applicable Law with respect to Services; 1886 Such that the Authority reasonably believes such event has placed Contractor's ability to perform 1887 under this Agreement in substantial jeopardy, or 1888
(iv) If Authority disagrees with Contractor’s estimate of Landfill capacity required to meet 1889 Contractor’s warranty in accordance with subsection J of Section 9.2 or of remaining capacity, 1890 considering Contractor’s Disposal obligations to both Authority and other Persons, as contained in the 1891 Quarterly Report or otherwise, then following dispute resolution in accordance with Section 8.17 that 1892 concludes either of Contractor’s estimates is erroneous, at its option and in addition to all other 1893 remedies it may have, the Authority may demand from Contractor written assurances of timely and 1894 proper performance of this Agreement. Assurances include reduction or elimination of deductibles or 1895 self-insured retention with respect to insurance or procuring a bond or letter of credit guarantying or 1896 in size sufficient to cover payment of losses and related investigations, claim administration and 1897 defense expenses. If Contractor fails or refuses to provide reasonable assurances by the date required 1898 by the Authority no less than fifteen (15) Calendar Days after Notice, that failure or refusal shall 1899 constitute a Contractor Default in accordance with Section 7.1.2. 1900 231
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8.17 Dispute Resolution 1901
8.17.1 Informal Resolution 1902
Should a dispute arise with respect to the performance and obligations of the Parties hereunder, at any 1903 time during the term of this Agreement, the provisions of Section 8.17 shall apply. Either Party shall give 1904 the other written notice of such dispute. Such notice shall specify a date and location for the Parties to 1905 meet and confer in good faith to resolve any dispute that may arise in a cooperative and mutually 1906 satisfactory manner. The Parties shall attempt to resolve their disputes informally to the maximum 1907 extent possible. 1908
8.17.2 Mediation 1909
In the event the Parties cannot resolve such dispute within thirty (30) Days of such notice, either Party 1910 may propose the appointment of a mediator for advice and non-binding mediation, and the other Party 1911 shall attend such mediation. If the mediator is unable, within thirty (30) Days thereafter, to reach a 1912 determination as to the matter in dispute in a manner acceptable to the Parties hereto, then either 1913 Party may refer the matter to a Court of competent jurisdiction. 1914
8.17.3 Arbitration Valuation Items 1915
For the purposes of this Agreement, disputes over “Arbitration Valuation Items” means monetary 1916 disputes the value of which are less than five hundred thousand dollars ($500,000) alleged to be due or 1917 owed by either Party. If mediation is unsuccessful, disputes concerning Arbitration Valuation Items shall 1918 be referred to binding arbitration. 1919
8.17.4 Binding Arbitration 1920
Binding arbitration proceedings shall be in accordance with California Code of Civil Procedure Section 1921 1280 et. seq., pursuant to the AAA Commercial Arbitration Rules or the then-current JAMS Streamlined 1922 Arbitration Rules, and the terms of this Section. The provisions of the California Discovery Act shall 1923 apply. The Parties shall determine by mutual agreement whether the AAA or JAMS proceedings are to 1924 be used. Provisions of the California Discovery Act shall apply to the arbitration proceedings. In the 1925 event of any inconsistency, the terms of this Section shall control. The arbitration shall be administered 1926 by JAMS and conducted in the County of Contra Costa. If the proceeding is pursuant to AAA Commercial 1927 Rules, the arbitrator selection process shall apply. If the JAMS rules are employed, and the Parties are 1928 unable to select an arbitrator by mutual agreement, JAMS shall select a qualified arbitrator from its 1929 panel. If JAMS is unwilling or unable to (a) serve as the provider of arbitration or (b) enforce any 1930 provision of this arbitration clause, the Parties may mutually designate another arbitration organization 1931 with similar procedures to serve as the provider of arbitration. If the Parties cannot agree on the 1932 arbitration organization, the Presiding Judge of the Contra Costa County Superior Court shall designate 1933 such an organization upon the petition of either Party. 1934 232
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(1) The arbitrator shall be independent of, and unaffiliated with, each Party and shall not 1935 ever have been an employee of either Party, under contract with either Party in the past five (5) years or 1936 have acted as an arbitrator for such Party within the past five (5) years. 1937 (2) Within twenty (20) days after initiation of the arbitration, if not previously done so 1938 under the terms of this Agreement, the Parties shall simultaneously submit to each other and the 1939 arbitrator their respective best or final offer for the item subject to the valuation dispute, with such 1940 supporting information as is reasonably necessary to support such suggested value. If the two (2) 1941 valuations so submitted differ by less than or equal to ten percent (10%) of the higher of the two (2), the 1942 average of the two (2) shall become the agreed-upon and binding amount for purposes of this 1943 Agreement and the arbitration shall not be continued. If the two (2) valuations differ by more than ten 1944 percent (10%) of the higher of the two (2), then the arbitrator shall make a determination of the 1945 relevant value and submit such determination to both Parties. This third valuation will then be averaged 1946 with the closer of the two (2) previous valuations and the result shall be the relevant value. In no event 1947 shall the arbitrator award, on a quantum meruit or other basis, an amount that is greater than any 1948 amount set forth in this Agreement. The final arbitrated value shall be binding on the Parties. 1949 (3) The arbitrator shall have the authority and power to award costs, but not including 1950 attorneys’ fees, to the prevailing Party. The American Rule shall apply with respect to attorneys fees, 1951 with each Party to bear its own attorneys fees. 1952
(4) By agreeing to binding arbitration for Arbitration Valuation Items, the Parties irrevocably 1953 and voluntarily waive any right they may have to a trial by jury to the extent permitted by law. 1954 Acknowledgement of waiver of rights to trial by jury if proceeding with binding arbitration pursuant to 1955 Section 8.17.4 of this Agreement: 1956
1957
1958
1959
__________________ ____________________ 1960
Authority [Contractor] 1961
8.17.5 Pendency of Dispute 1962
During the pendency of any dispute under Section 8.17, all applicable time periods directly related to 1963 the dispute shall be tolled until its resolution; provided, however, that no tolling shall apply to any 1964 matters other than those directly related to the dispute and such tolling shall not entitle a Party to 1965 breach, default, or fail to perform its obligations under this Agreement. In addition, the pendency of any 1966 dispute shall not stay or affect the Authority’s remedies under this Agreement. 1967 233
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8.18 Criminal Activity of Contractor 1968
8.18.1. Notice of Convictions or Pleas 1969
The Contractor shall Immediately Notify the Authority upon the occurrence of any Convictions or Pleas 1970 with respect to its management, employees, or representatives and use Reasonable Business Efforts to 1971 Immediately Notify the Authority with respect to Contractor or any of its representatives. 1972
8.18.2 Contractor Cure 1973
Upon the occurrence of any Convictions or Pleas, the Contractor shall do or cause to be done both of the 1974 following: 1975
(i) As soon as permitted under Applicable Law, terminate from employment or remove from office 1976 the offending employee who is an individual, or, with respect to a employee that is the Contractor or 1977 an Affiliate, the individual or individuals responsible for the Criminal Activity; and 1978 (ii) Immediately eliminate the participation by that employee who is an individual or, with respect 1979 to an employee that is the Contractor or Affiliate of the individual or individuals responsible for the 1980 Criminal Activity, or in any position of influence. 1981 Should Contractor be unable to terminate the offending employee, said individual(s) shall be replaced in 1982 their capacity as relative to this Agreement. 1983
8.18.3 Authority Remedies 1984
Subject to Section 7.1.1, the Authority, at its sole discretion, may terminate the Agreement upon thirty 1985 (30) Calendar Days Notice to the Contractor, or may impose those other sanctions (which may include 1986 financial sanctions, temporary suspensions or any other condition deemed appropriate short of 1987 termination) as it shall deem proper, if the following events are continuing at the end of those thirty (30) 1988 Calendar Days: 1989
(i) the Contractor or any Affiliate fails to comply with its obligations under Section 7.1.1; or, 1990 (ii) Criminal Activity with respect to this Agreement. 1991 (iii) Criminal Activity involving managers and officers directly responsible for the performance of 1992 services under this Agreement. 1993
Contractor must be given the opportunity to present to Authority Contract Manager evidence in 1994 mitigation during the preceding Notice period and Authority must consider that evidence. 1995 234
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8.18.4 Prohibited Transfers 1996
The Contractor shall not hire or transfer from any Affiliate any employee, officer or director of an 1997 Affiliate who is the subject of any Criminal Activity as an employee under this Agreement and shall not 1998 allow its Affiliates to do so. 1999
8.19 Liquidated Damages 2000
8.19.1 General 2001
The Parties acknowledge that Authority incurred considerable time and expense procuring this 2002 Agreement in order to secure an improved level of service quality and increased Authority satisfaction. 2003 Therefore, consistent and reliable Services are of utmost importance to the Authority, Franchise 2004 Agencies, and Customers. Authority has considered and relied on Contractor's representations as to its 2005 quality of service commitment in entering into this Agreement, and Contractor's breach of its Service 2006 obligations referenced in this Section above represents a loss to the Authority. The Parties further 2007 recognize that quantified standards of performance are necessary and appropriate to ensure quality, 2008 consistent and reliable Service, and if Contractor fails to meet Service obligations, Authority shall suffer 2009 damages (including inconvenience, anxiety, frustration, potential political pressure, criticism and 2010 complaint by Generators, lost time for the Authority and the Board of Directors, deprivation of the 2011 benefits of the Agreement and loss of bargain) in subjective ways and in varying degrees of intensity 2012 that are incapable of measurement in precise monetary terms, and that it is and shall be impracticable 2013 and extremely difficult to ascertain and determine the value thereof. In addition, in event of breach or 2014 Contractor Default, urgency of protecting public health and safety may necessitate that Authority enter 2015 into emergency or short term arrangements for Services without competitive procurement at prices 2016 substantially greater than Hereunder, and the monetary loss resulting there from is impossible to 2017 precisely quantify. Lastly, termination of this Agreement for Contractor Default and other remedies 2018 provided hereunder are, at best, a means of future correction and not remedies that make the Authority 2019 whole for past breaches and Contractor Defaults. Therefore, the Parties agree that the liquidated 2020 damages listed in Exhibit 8.19 represent a reasonable estimate of the amount of damages, considering 2021 all of the circumstances existing on the date of this Agreement, including the relationship of the sums to 2022 the range of harm to Authority that reasonably could be anticipated and anticipation that proof of 2023 actual damages would be costly or inconvenient. In signing this Agreement, each Party specifically 2024 confirms the accuracy of the statements made above and the fact that each Party had ample 2025 opportunity to consult with legal counsel and obtain an explanation of this liquidated damage provision 2026 at the time that this Agreement was made. 2027
8.19.2 Service Performance Standards; Liquidated Damages for Failure to Meet 2028 Standards 2029
Contractor shall pay (as liquidated damages and not as a penalty) the amounts set forth in Exhibit 8.19. 2030 The Authority Contract Manager may determine the occurrence of events giving rise to liquidated 2031 damages through the investigation or observation or investigation of complaints by Customers or any 2032 other party. These performance standards shall consider both effort (e.g., number of meetings with 2033 Customers to offer new programs) and results (e.g., Tons of material Recycled). In addition, these 2034 liquidated damages shall be in addition to any other remedy the Authority and/or Franchise Agencies 2035 235
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may have, which may include, but are not necessarily limited to: a determination of breach of contract, 2036 termination of the agreement, or litigation. 2037
Prior to assessing liquidated damages, Authority Contract Manager shall give Contractor Notice of its 2038 intention to do so. The Notice shall include a brief description of the incident(s) and non-performance. 2039 For events where there is a cure opportunity noted in Exhibit 8.19, Contractor shall have the 2040 opportunity to cure such incident(s) and/or non-performance, consistent with the schedules defined 2041 therein, and, if Contractor does so, no liquidated damages shall be assessed. The Authority Contract 2042 Manager may review (and make copies at its own expense) all information in the possession of 2043 Contractor relating to incident(s) and non-performance. The Contractor may, within ten (10) Calendar 2044 Days after receiving the Notice, request a meeting with Authority Contract Manager. Upon Contractor’s 2045 request, the Authority Contract Manager shall present evidence of non-performance. Such evidence 2046 shall be provided in writing and through testimony of its employees and others relevant to the 2047 incident(s) and non-performance. Authority Contract Manager shall provide Contractor with a written 2048 explanation of his or her determination on each incident(s) and non-performance prior to authorizing 2049 the assessment of liquidated damages. Subject to the limits of “material impact” described in Section 2050
8.10, with respect to the cumulative amount of any liquidated damages assessed during the preceding 2051 twelve month period the decision of Authority Contract Manager shall be final and Contractor shall not 2052 be subject to, or required to exhaust, any further administrative remedies. 2053
8.19.3 Amount 2054
Authority may assess liquidated damages for each Calendar Day or event, as appropriate, that 2055 Contractor is determined to be liable in accordance with this Agreement in the amounts specified in 2056 Exhibit 8.19, subject to a rule of reason regarding when Contractor should have known or been notified 2057 by the Authority Contract Manager, as appropriate. 2058
8.19.4 Payment of Liquidated Damages 2059
Contractor shall pay any liquidated damages assessed by Authority Contract Manager within ten (10) 2060 Calendar Days after they are assessed. If they are not paid within that period, Authority may proceed 2061 against the Performance Surety. 2062
8.19.5 Administrative Nature of Liquidated Damages 2063 The assessment of liquidated damages as described in this Section 8.19 shall be an administrative 2064 function within the sole discretion of the Authority Contract Manager and shall not be subject to appeal. 2065 In the event that the liquidated damages assessed by the Authority Contract Manager exceed the 2066 monetary limits of the Authority Contract Manager’s administrative discretion, as described in Section 2067
8.10, Contractor may appeal the Authority Contract Manager’s decision to the Authority’s Board of 2068 Directors and their determination shall be conclusive. 2069
8.20 Guaranty of Contractor's Performance 2070
The Guarantor has agreed to guaranty Contractor's performance of this Agreement including 2071 Contractor’s Indemnification obligations Hereunder pursuant to a Guaranty Agreement in substantially 2072 236
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the form attached as Exhibit 8.20. The Guaranty Agreement is being provided concurrently with 2073 Contractor's execution of this Agreement. 2074
8.21 Exercise of Discretionary Actions 2075
Parties shall exercise any approval, disapproval, consent, option, discretion, election, opinion, judgment, 2076 or choice under this Agreement, make a requirement under this Agreement or interpret this Agreement 2077 (“Discretionary Action”) reasonably and in writing. Any mediator or court must find the Party’s exercise 2078 to be reasonable. Recognizing the essential public health and safety protections this Agreement serves, 2079 where this Agreement specifically provides that the exercise of any Discretionary Action is in each 2080 respective Party's independent, sole, exclusive, or absolute discretion, control, or judgment, the other 2081 Party shall not question or challenge the other Party’s exercise thereof. Parties shall, nevertheless, 2082 exercise their rights and remedies in good faith in accordance with Applicable Law. 2083 Unless otherwise provided in this Agreement, Authority’s Discretionary Actions shall be deemed 2084 disapproved or denied, as the case may be, if Authority has not otherwise taken that Discretionary 2085 Action within three (3) weeks of Contractor’s request. 2086
8.22 Jurisdiction, Venue 2087
To the extent permitted by Applicable Law and subject to choice of venue laws, venue is appropriate in 2088 courts sitting in Contra Costa County, California. For cases adjudicated in Federal Court, the appropriate 2089 venue is the United States District Court for the Northern District of California. 2090 The site of any other hearing or action, whether mediation, arbitration, or non-judicial, of whatever 2091 nature or kind regarding this Agreement, shall be conducted in the County of Contra Costa, California, or 2092 as otherwise mutually agreed upon by the Parties. 2093
8.23 Costs and Expenses 2094
Each Party, regardless of the decision of the court, shall pay their own expenses incurred in the process 2095 of adjudication. 2096
2097
8.24 Golden Bear Franchise Agreement 2098
Nothing in this Agreement shall or is intended to apply to, supersede or affect the Exclusive Franchise 2099 Agreement Between the City of Richmond and Golden Bear Transfer Services, Inc., dated June 28, 2004 2100 as it may be amended from time to time (“Richmond-Golden Bear Agreement”) in any way. 2101 Furthermore, with respect to Contractor’s representation and warranty set forth in section 9.1 of this 2102 Agreement, Contractor represents and warrants that its entry into this Agreement is not a breach of the 2103 Richmond-Golden Bear Agreement, so long as all Solid Waste is being directed by the Authority to the 2104 Golden Bear Transfer Station, the Approved Transfer Facility, for handling and transport to other 2105 facilities, including without limitation Newby Island or Keller Canyon Landfill. The Authority agrees that 2106 it shall direct and continue to direct such Solid Waste to the Golden Bear Transfer Station. Such 2107 direction of Solid Waste to Golden Bear Transfer Station is limited only by the provisions set forth in 2108 Sections 4.12 and 8.12. 2109
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2110
238
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ARTICLE 9 2111
REPRESENTATIONS AND WARRANTIES OF CONTRACTOR 2112
9.1 Accuracy of Representations 2113
The Contractor has made, and the Authority is relying on the accuracy of, certain representations in its 2114 response to the Authority’s requirements regarding its: corporate authorization to enter the Agreement; 2115 ability to do so without causing a breach of any agreement or Violation of any Applicable Law or judicial 2116 decision subject to the provisions in section 8.24; current or pending litigation; regulatory compliance 2117 with regard to the Landfill and Approved Processing Facilities; and, ability to provide the proposed 2118 Services in accordance with the permitted capacity of the Landfill and Approved Processing Facilities. 2119 The Contractor understands that the Authority and Franchise Agencies are relying upon the accuracy of 2120 the Contractor’s representations with regard to the legal and regulatory matters described above as well 2121 as with regard to the Contractor’s operational plans and costs for implementing the Services described 2122 Herein. would be in default of this Agreement, pursuant to Section 7.1.3, in the event that the Authority 2123 or Contractor were to determine that any material representation made as an inducement to or 2124 explanation of the costs incurred by Contractor under this Agreement was inaccurate. 2125
9.2 Representations and Warranties Regarding Negotiation of Agreement 2126 This Agreement contains all material and required terms to be effective and there shall be no conditions 2127 precedent, conditions subsequent, or other conditions or qualifications required or imposed by the 2128 Authority or any Franchise Agency, including without limitation, any other or different amendments or 2129 modifications to Franchise Agency Collection Franchise Agreements for purposes of that Franchise 2130 Agency’s approval and execution of the Agreement. 2131
A. Status. Contractor is a corporation duly organized, validly existing and in good standing under the 2132 laws of California and is qualified to do business in the State. 2133 B. Authority and Authorization. The Contractor has full legal right, power and authority to execute and 2134 deliver this Agreement and perform its obligations under this Agreement. This Agreement has been 2135 duly executed and delivered by the Contractor and constitutes a legal, valid and binding obligation of 2136 the Contractor enforceable against the Contractor in accordance with its terms. 2137 C. Statements and Information. That portion of the Contractor’s Proposal complied, drafted, made or 2138 otherwise delivered by the Contractor, Subcontractors and Affiliates is correct and complete in all 2139 material respects at the time originally submitted by Contractor to the Authority. 2140 D. No Conflicts. Neither the execution or delivery by the Contractor of this Agreement, the 2141 performance by the Contractor of its Service obligations, nor the fulfillment by the Contractor of the 2142 terms and conditions of this Agreement: (1) conflicts with, violates or results in a breach of any 2143 Applicable Law; or (2) conflicts with, violates or results in a breach of any term or condition of any 2144 judgment, order or decree of any court, administrative agency or other governmental authority. or any 2145 239
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agreement or instrument to which the Contractor or any of its Affiliates is a Party or by which the 2146 Contractor or any of its Affiliates’ properties or assets are bound, or constitutes a default thereunder. 2147 E. No Approvals Required. No approval, authorization, license, permit, order or consent of, or 2148 declaration, registration or filing with any governmental or administrative authority, commission, board, 2149 agency or instrumentality is required for the valid execution and delivery of this Agreement by the 2150 Contractor, except those as have been duly obtained from its Board of Directors. 2151 F. No Litigation. As of January 1, 2014 there is no action, suit, proceeding or investigation, at law or in 2152 equity, before or by any court or governmental authority, commission, board, agency or instrumentality 2153 pending or, to the best of the Contractor’s knowledge, threatened, against the Contractor wherein an 2154 unfavorable decision, ruling or finding, in any single case or in the aggregate, would materially adversely 2155 affect the performance by the Contractor of its obligations under this Agreement or in connection with 2156 the transactions contemplated by this Agreement, or which, in any way, would adversely affect the 2157 validity or enforce ability of this Agreement or any other agreement or instrument entered into by the 2158 Contractor in connection with the transactions contemplated by this Agreement. 2159 G. Due Diligence. Contractor has made an independent investigation, examination and research 2160 satisfactory to it of the conditions and circumstances surrounding the Agreement and best and proper 2161 method of providing Services (including Service types) and labor, equipment and materials for the 2162 volume of Services to be provided. Contractor agrees that it shall make no claim against the Authority 2163 based on any estimates, statements or interpretations made by any officer, employee, agent or 2164 consultant of the Authority in connection with the procurement of this Agreement which proves to be in 2165 any respect erroneous. 2166
H. Compliance with Applicable Law. Contractor further represents and warrants that it has fully 2167 complied with all Applicable Law, including without limitation law relating to conflicts of interest, in the 2168 course of procuring this Agreement. 2169
I. Ability to Perform. Contractor warrants that it possesses the business, professional and technical 2170 capabilities to provide Services; has secured and maintains in full force and effect Permits; and 2171 possesses the equipment, facility and employee resources required to fully and timely perform Services. 2172 J. Capacity. Contractor warrants that as of January 1, 2014 it has capacity at the Landfill and the 2173 Approved Processing Facilities to perform the services required under this Agreement throughout the 2174 Term and that it shall maintain that capacity through the Term. 2175 2176
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ARTICLE 10 2177
MISCELLANEOUS PROVISIONS 2178
10.1 Exhibits 2179
If any provisions contained in the text of Articles 1 through 10 are inconsistent or conflict with any 2180 Exhibits to this Agreement, then the provisions of the text shall govern. 2181
10.2 Section Headings 2182
Any captions or headings following the Exhibit, Section, subsection, paragraph and Article numbers and 2183 preceding the operative text of this Agreement is for convenience of reference only and do not control 2184 or affect the scope, intent, meaning, construction, interpretation, or effect of this Agreement. 2185
10.3 Interpretation and Construction 2186
10.3.1 Drafting 2187
This Agreement must be interpreted and construed reasonably and neither for nor against either Party, 2188 regardless of the degree to which either Party participated in its drafting. Contractor acknowledges that 2189 it determined to participate in the procurement of this Agreement upon its own choice and initiative 2190 and during the course of that procurement Authority solicited Contractor’s comments, exceptions and 2191 proposals with respect to provisions in the Agreement. The Parties have negotiated this Agreement at 2192 arms length and with advice of their respective attorneys, and no provision Herein is construed against 2193 the Authority solely because it prepared this Agreement in its executed form. 2194
10.3.2 Gender and Plurality 2195
Words of the masculine gender include correlative words of the feminine and neuter genders, and vice 2196 versa. Words importing the singular number mean and include the plural number, and vice versa, 2197 unless the context demands otherwise. 2198
10.3.3 Font 2199
Any underlined, italicized, bold-faced, upper captioned or other font style are for ease of reading and 2200 contract administration only and do not imply relative importance or unimportance of any provision of 2201 this Agreement. 2202
10.3.4 References to Parts 2203
References to Sections and Articles refer to Sections and Articles of this Agreement, unless specified 2204 otherwise. References to Exhibits refer to Exhibits attached to this Agreement. Reference to 2205 “subsections” refers to the subsection contained in the same Section in which the reference occurs, 2206 unless otherwise provided. 2207
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10.3.5 Examples 2208
Examples are for purpose of illustration only. If any example is ambiguous or is inconsistent or conflicts 2209 with the text that it illustrates, the text governs. 2210
10.3.6 Specifics No Limitation on Generalities 2211
The mention of any specific duty or liability imposed upon the Contractor may not be construed as a 2212 limitation or restriction of any general liability or duty imposed upon the Contractor by this Agreement 2213 or Applicable Law. 2214
10.4 Amendment 2215
The Parties may change, modify, supplement, or amend this Agreement only upon written agreement 2216 duly authorized and executed by both Parties. However, wherever reports, forms, or other documents 2217 are attached to this Agreement in substantially the form provided in the Exhibits, the Authority 2218 Representative and Contractor Representative may edit and revise them upon their agreement or 2219 otherwise provided in the related sections of this Agreement, evidenced in writing unless this 2220 Agreement or Applicable Law specifically requires approval of the Authority Board of Directors pursuant 2221 to resolution or otherwise. 2222
10.5 Severability 2223
If any clause, sentence, provision, subsection, Section, or Article of this Agreement or Exhibit to this 2224 Agreement (an Agreement Provision) is ruled unconstitutional, illegal, invalid, non-binding, or 2225 unenforceable by any court of competent jurisdiction, then the Parties shall: 2226 (1) Promptly meet and negotiate a substitute for those Agreement Provisions and any related 2227 amendments, deletions, or additions to other provisions of this Agreement, which together effect the 2228 Parties’ original intent to the greatest extent allowable under Applicable Law; and, 2229 (2) If necessary or desirable to accomplish preceding item (1), apply to the court that made that 2230 ruling for a judicial construction of the substituted Agreement Provision and any amendments, 2231 deletions, or additions to this Agreement. Contractor shall pay Authority half of the Direct Costs of 2232 that application within twenty (20) Calendar Days of Authority’s request if Contractor or a third Person 2233 other than the Authority instituted proceedings resulting in the ruling. 2234 The unconstitutionality, illegality, invalidity, non-binding nature, or unenforceability of any Agreement 2235 Provision shall not affect any of the remaining provisions of this Agreement. This Agreement shall be 2236 construed and enforced as if that Agreement Provision did not exist. 2237
10.6 Costs of Enforcing Agreement 2238
Contractor shall pay to the Authority the Authority’s Costs, including attorneys’ fees, reasonably 2239 incurred by or on behalf of the Authority enforcing payment or performance of Contractor’s obligations 2240 under this Agreement if non-payment or non-performance results in a Contractor Default. 2241 242
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10.7 Authority 2242
Authority warrants that the officers listed below have been duly authorized by the Authority to execute 2243 this Agreement on behalf of the Authority. Contractor warrants that the individuals listed below have 2244 been duly authorized by the Contractor to execute this Agreement on behalf of the Contractor. 2245 The Authority and Member Agencies represent and warrant that the Authority and Member Agency 2246 negotiating team consisting of representatives from the Cities of Richmond, Pinole, Hercules and San 2247 Pablo, and the Authority Executive Director each and collectively have the full right and authority from 2248 the Authority Board or the Member Agencies’ city councils, as the case may be, to negotiate fully and in 2249 good faith a mutually acceptable Agreement. 2250
10.8 Counterparts 2251
This Agreement may be executed in any number of counterparts, some of which may not bear the 2252 signatures of all Parties to this Agreement. Each counterpart, when so executed and delivered, is 2253 deemed to be an original and all counterparts, taken together, shall constitute one and the same 2254 instrument; provided, however, that in pleading or proving this Agreement, it shall not be necessary to 2255 produce more than one (1) copy (or sets of copies) bearing the signature of the Contractor or Authority. 2256 IN WITNESS WHEREOF, the Parties have caused the Agreement to be executed as of the latter of the 2257 date written below. 2258
West Contra Costa Contractor 2259
Integrated Waste Management Authority 2260
2261
By: ________________________________ By: __________________________ 2262 Executive Director Area President 2263
Approved as to Form: Approved as to Form: 2264
___________________________________ ________________________________ 2265 Attorney Contractor Legal Counsel 2266
2267
Attest: 2268
___________________________________ 2269
Authority Clerk 2270
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EXHIBIT 1 2271
DEFINITIONS 2272
For purposes of this Agreement, unless a different meaning is clearly required, the following words and 2273 phrases shall have the following meanings respectively ascribed to them by this Exhibit and shall be 2274 capitalized throughout this Agreement: 2275
“Act” means the California Integrated Waste Management Act of 1989 set forth in PRC Section 40000, 2276 et seq. 2277
“Actions” means all actions including claims, demands, causes of action, suits, mediation, arbitration, 2278 hearings, investigations, inquiries and proceedings, whether legal, judicial, quasi-judicial, governmental 2279 or administrative in nature and whether threatened, brought, instituted or settled. 2280 “Affiliate” means all businesses (including corporations, limited and general partnerships, and sole 2281 proprietorships) which are directly or indirectly related to Contractor by virtue of direct or indirect 2282 Ownership interests or common management shall be deemed to be “Affiliated with” Contractor and 2283 included within the term “Affiliates” as used Herein. An Affiliate shall include a business in which 2284 Contractor Owns a direct or indirect Ownership interest, a business which has a direct or indirect 2285 Ownership interest in Contractor and/or a business which is also Owned, controlled, or managed by any 2286 business or individual which has a direct or indirect Ownership interest in Contractor. For purposes of 2287 determining whether an indirect Ownership interest exists, the constructive Ownership provisions of 2288 Section 318(a) of the Internal Revenue code of 1986, as in effect on the date of this Agreement, shall 2289 apply; provided, however, the (i) “ten percent (10%)” shall be substituted for “fifty percent (50%)” in 2290 Section 318(a)(2)(C) and in Section 318(a)(3)(C) thereof; and (ii) Section 318(a)(5)(C) shall be 2291 disregarded. For purposes of determining Ownership under this paragraph and constructive or indirect 2292 Ownership under Section 318(a), Ownership interest of less than ten percent (10%) shall be disregarded 2293 and percentage interests shall be determined on the basis of the percentage of voting interest or value 2294 which the Ownership interest represents, whichever is greater. 2295 “Authority Contract Manager” means the Authority’s Executive Director or his/her designee who is 2296 responsible for the administrative management of this Agreement. 2297 “Agreement” means this Agreement between the Authority and Contractor, including all exhibits, 2298 schedules and attachments, which are incorporated in this Agreement by reference, as this Agreement 2299 may be amended and supplemented. 2300
“Alternative Daily Cover (ADC)” means cover material used to cover compacted Solid Wastes in a 2301 landfill, other than Organic Materials and other than at least six (6) inches of earthen material, placed on 2302 the surface of the active face of the refuse fill area at the end of each operating day to control vectors, 2303 fires, odors, blowing litter, and scavenging, as defined in Section 20164 of the California Code of 2304 Regulations as may be amended from time to time. 2305
244
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“Applicable Law” means all laws, statutes, rules, regulations, guidelines, Permit conditions, Permits, 2306 Actions, determinations, orders, approvals or requirements of the United States, State, regional or local 2307 government authorities, agencies, boards, commissions, courts or other bodies having applicable 2308 jurisdiction, that from time to time apply to or govern Services or the performance of the Parties' 2309 respective obligations under this Agreement, including any of the foregoing which concern health, 2310 safety, fire, environmental protection, labor relations, mitigation conditions and monitoring plans in 2311 accordance with environmental impact statements, conditional use permits; building codes, zoning, 2312 non-discrimination; and the Transfer or Disposition of Solid Waste, Organic Materials, and Recyclable 2313 Materials, and including but not limited to: 2314
(1) the Comprehensive Environmental Response, Compensation and Liability Act of 1980, (42 U.S.C. 2315 Section 9601 et seq.); 2316
(2) the Resource Conservation and Recovery Act, (42 U.S.C. Section 6901 et seq.); 2317 (3) the Clean Air Act, (42 U.S.C. Section 7401et seq.); and the California Clean Air Act (Health and 2318 Safety Code Sections 39000 et seq.); 2319
(4) the Emergency Planning and Community Right to Know Act, (42 U.S.C. Section 11001 et seq.) 2320 (5) the Occupational Safety and Health Act, (29 U.S.C. Section 651 et seq. ), including the Solid 2321 Waste Disposal Facility Criteria promulgated by the U.S. EPA on October 9, 1991 (40 C.F.R., Parts 2322 257 and 258); and the California Occupational Safety and Health Act (California Labor Code, 2323 Division 5, Parts 1-10, Section 6300 et seq.); 2324
(6) the California Hazardous Waste Control Act, (California Health & Safety Code, Section 25100 et 2325 seq.); 2326
(7) California Hazardous Materials Release Response Plan and Inventory Act (California Health & 2327 Safety Code Section 25500 et seq.); 2328
(8) the Carpenter-Presley-Tanner Hazardous Substance Account Act, (California Health & Safety 2329 Code Section 25300 et seq.); 2330
(9) California Underground Storage Tank Act, (California Health & Safety Code, Section 25280 et 2331 seq.); 2332
(10) the Clean Water Act (33 U.S.C. Section 1251 et seq .) and the Porter-Cologne Water Quality 2333 Control Act, (California Water Code Section 13000 et seq.); 2334 (11) the Safe Drinking Water and Toxic Enforcement Act “Proposition 65” , (California Health and 2335 Safety Code Section 25249.5 et seq.); 2336
2337
245
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Exhibit 1 Definitions Page 1-3
(12) California Public Resources Code Sections 45300-04, 45700, California Health & Safety Code 2338 Sections 40511, 41805.5, and 42311.5, and California Water Code Section 13273); 2339 (13) Title 14 California Code of Regulations; 2340
(14) Title 22 California Code of Regulations; 2341
(15) Title 23 California Code of Regulations, Chapter 15, Sections 2510-2610; and 2342 (16) Title 27 California Code of Regulation. 2343
Any other government required rules, laws, statutes, regulations, guidelines, or policies which are 2344 imposed upon Contractor and not discretionary, governing the provision of the Services outlined within 2345 this Agreement. 2346
“Approved Construction and Demolition Processing Facility” means the West Contra Costa Sanitary 2347 Landfill Organic Materials Processing Facility located at 1 Parr Blvd. in Richmond, California, which was 2348 selected by the Contractor and approved by the Authority as the site for the performance of services 2349 under Section 4.1.6 of this Agreement. Change in facility designation for the performance of such 2350 services shall require written authorization of the Authority Contract Manager. 2351 “Approved Dry Materials Processing Facility” means the Newby Island Resource Recovery Park located 2352 at 1601 Dixon Landing Road in Milpitas California, which was selected by the Contractor and approved 2353 by the Authority as the site for the performance of services under Section 4.1.4 of this Agreement. 2354 Change in facility designation for the performance of such services shall require written authorization of 2355 the Authority Contract Manager. 2356
“Approved Household Hazardous Waste (HHW) Facility” means the West County HHW Collection 2357 Facility at 101 Pittsburg Avenue in North Richmond, California which is used by the Contractor as the site 2358 for accepting and managing household hazardous waste from residents and conditionally exempt small 2359 quantity generators within the Authority’s service area as well as the surrounding unincorporated 2360 communities of Crockett, Kensington, Port Cost and Tormey pursuant to the terms of an agreement 2361 between the Authority, Contractor and the County. 2362
“Approved Organic Materials Processing Facility” means the West Contra Costa Sanitary Landfill 2363 Organic Materials Processing Facility located at 1 Parr Blvd, Richmond, California, which was selected by 2364 the Contractor and approved by the Authority as the site for the performance of services under Section 2365
4.1.5 of this Agreement. Change in facility designation for the performance of such services shall require 2366 written authorization of the Authority Contract Manager. 2367 “Approved Processing Facility(ies)” means the Approved Organic Materials Processing Facility, 2368 Approved Construction and Demolition Processing Facility, Approved Transfer Station, and/or the 2369 Approved Recyclable Materials Processing Facility. 2370 “Approved Recyclable Materials Processing Facility” means West County Resource Recovery Facility 2371 located at 101 Pittsburg Ave, Richmond, California or the Newby Island Resource Recovery Park located 2372 246
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at 1601 Dixon Landing Road in Milpitas, CA which were selected by the Contractor and approved by the 2373 Authority as the locations for the performance of services under Section 4.1.3 of this Agreement. 2374 Change in facility designation for the performance of such services shall require written authorization of 2375 the Authority Contract Manager. 2376
“Approved Transfer Station” means the Golden Bear Transfer Station owned by the Contractor and 2377 located 1 Parr Blvd, in Richmond California, which was selected by the Contractor and approved by the 2378 Authority as the site for the performance of services under Section 4.1.1 of this Agreement. 2379 “Assign or Assignment” means: 2380
(i) selling, exchanging or otherwise transferring effective control of management of the Contractor 2381 (through sale, exchange or other transfer of outstanding stock or otherwise); 2382 (ii) issuing new stock or selling, exchanging or otherwise transferring 20% or more of the then 2383 outstanding common stock of the Contractor; 2384
(iii) any dissolution, reorganization, consolidation, merger, re-capitalization, stock issuance or re-2385 issuance, voting trust, pooling agreement, escrow arrangement, liquidation or other transaction 2386 which results in a change of Ownership or control of Contractor; 2387 (iv) any Assignment by operation of law, including insolvency or bankruptcy, making Assignment for 2388 the benefit of creditors, writ of attachment of an execution, being levied against Contractor, 2389 appointment of a receiver taking possession of any of Contractor’s tangible or intangible 2390 property; 2391
(v) any combination of the foregoing (whether or not in related or contemporaneous transactions) 2392 which has the effect of any that transfer or change of Ownership or control of Contractor. 2393 “Authority” means the West Contra Costa Integrated Waste Management Authority, its Board of 2394 Directors, staff, and/or agents. 2395
“Calendar Year” means a successive period of twelve (12) months commencing on January 1 and ending 2396 on December 31. 2397
“CCR” means California Code of Regulations. 2398
“Change in Law” means the occurrence of any event or change in Applicable Law as follows: 2399 (1) the adoption, promulgation, repeal, modification, amendment or other change in Applicable Law 2400 or change in judicial or administrative interpretation thereof occurring after January 1, 2014, other 2401 than laws with respect to taxes based on or measured by net income, or any unincorporated 2402 business, payroll, franchise taxes levied by any tax board (other than franchise fees levied by the 2403 Authority) or employment taxes; or 2404
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(2) any order or judgment of any federal, State or local court, administrative agency or governmental 2405 body issued after January 1, 2014 and the order or judgment is not also the result of the willful 2406 misconduct or negligent action or inaction of the Party relying thereon or of any third party for 2407 whom the Party relying thereon is directly responsible; or 2408 (3) the imposition by a governmental authority or agency of any new or different material conditions 2409 in connection with the issuance, renewal, update or modification of any Permit after the date of 2410 this Agreement; or 2411
(4) the failure of a governmental authority or agency to issue or renew, or delay in the issuance or 2412 renewal of, or the suspension, interruption or termination of, any Permit after the date of this 2413 Agreement; provided the failure to issue or the suspension or termination of any Permit is not the 2414 result of negligent action or inaction of the Party relying thereon or any third party for whom the 2415 Party relying thereon is directly responsible. 2416
“Closure” means closure of the Landfill or portions of the Landfill in accordance with Applicable Law, 2417 including all planning, design, regulatory approvals, plan implementation, construction and monitoring. 2418 “Collection Franchise Agreement(s)” refers to the franchise agreements between the Franchise 2419 Agencies and their Franchised Collector, either individually or collectively. 2420 “Commercial” shall mean of, from or pertaining to non-Residential premises where business activity is 2421 conducted, including, but not limited to, retail sales, services, wholesale operations, manufacturing, and 2422 industrial operations, but excluding businesses conducted upon Residential property which are 2423 permitted under applicable zoning regulations and are not the primary use of the property. 2424 “Compost” means a controlled biological decomposition of organic materials that are Source Separated 2425 from the municipal Solid Waste stream, or which are separated at a centralized facility. 2426 “Compostable Food Ware” means a subset of Organic Material, Compostable Food Ware is a product 2427 capable of Composting as of the Effective Date and labeled in accordance with California law, or is 2428 consistent with the timeline and specifications of ASTM D6400 and D6868, without regard to material 2429 type. The Parties’ intention is to maximize composting of such materials; as new commodities become 2430 available, and as long as materials are compostable in a commercially feasible and reasonable manner, 2431 they will be considered to be Organic Material. 2432
“Compost Product” means the product resulting from Composting, the controlled biological 2433 decomposition of organic materials, that are source separated from the municipal solid waste stream, or 2434 which are separated at a centralized facility. 2435
“Contractor” means West County Resource Recovery, Inc., West Contra Costa Sanitary Landfill, Inc., 2436 Golden Bear Transfer Services, Inc., Richmond Sanitary Service, Inc. and Keller Canyon Landfill Company, 2437 Inc. organized and operating under the laws of the State of California. For purposes of Indemnities, 2438 Contractor shall include Contractor’s employees, officers, agents, subcontractors and consultants 2439 performing or responsible for performing Services; provided that only signatory Contractors, 2440 248
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corporations, are obligated to provide Indemnities and its employees, officers, agents, subcontractors, 2441 and consultants shall not be liable therefore as individuals. 2442 “Contractor Default” has the meaning provided in Section 7.1. 2443 “Construction and Demolition (C&D) Materials” includes but is not limited to concrete, cinder blocks, 2444 brick, mortar, wood, glass and other material removed and discarded during the alteration, renovation, 2445 remodeling, repair, construction or demolition of pavements, houses, commercial buildings or 2446 structures which can be separated from Solid Waste for the purpose of reuse, Processing or re-2447 manufacture. 2448
“Conviction” means a Plea, criminal Conviction, permanent mandatory or prohibitory injunction, or a 2449 final judgment or order from a court or regulatory agency of competent jurisdiction with respect to 2450 Criminal Activity. 2451
“Criminal Activity” means, but is not limited to: 2452 (1) any criminal offense in connection with obtaining, attempting to obtain, procuring or performing a 2453 public or private agreement related to Solid Waste, Organic Materials, or Recyclable Materials 2454 Services of any kind (including collection, hauling, Transfer, Processing, Composting, or Disposal), 2455 including this Agreement; or 2456
(2) bribery or attempting to bribe a public officer or employee of a local, State, or federal agency; or 2457 (3) fraud, embezzlement, extortion, racketeering, false claims, false statements, forgery, falsification 2458 or destruction of Records, obstruction of justice, knowingly receiving stolen property, theft, or 2459 misprision (failure to disclose) of a felony; or 2460
(4) unlawful Disposal of Hazardous or Designated Waste; or 2461 (5) Violation of antitrust laws, including laws relating to price-fixing, bid-rigging and sales and market 2462 allocation, and of unfair and anti-competitive trade practice laws, including with respect to 2463 inflation of waste collection, hauling or Disposal fees. 2464 “Day” means calendar day. 2465
“Designated Waste” means non-Hazardous Material which may pose special Disposal problems because 2466 of its potential to contaminate the environment and which may be Disposed of only in Class II Disposal 2467 sites, or Class III Disposal sites pursuant to a variance issued by the California Department of Health 2468 Services or pursuant to applicable Permits. Designated Waste consists of those substances classified as 2469 Designated Waste by the State, in CCR Title 23, Section 2522. 2470 “Direct Costs” means the sum of: 2471
(1) payroll costs directly related to the Contractor’s performance, or supervision of any obligation 2472 pursuant to the provisions of this Agreement, or Authority’s administration and enforcement of 2473 249
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this Agreement, comprised of compensation and fringe benefits, including vacation, sick leave, 2474 holidays, retirement, workers compensation insurance, federal and State unemployment taxes 2475 and all medical and health insurance benefits, plus 2476 (2) the costs of materials, Services, direct rental costs and supplies, plus 2477 (3) the reasonable costs of any payments to subcontractors necessary to and in connection with the 2478 performance under or administration and enforcement of this Agreement; plus 2479 (4) any other cost or expense which is directly or normally associated with the task performed. 2480 Such Direct Costs are to be substantiated by (i) a certificate signed by the principal financial officer of 2481 the Contractor or the authorized representative of the Authority or his or her designee, as the case may 2482 be, setting forth the amount of the cost and the reason why the cost is properly chargeable to the 2483 Authority or the Contractor, as the case may be, and representing that the cost is an arm's length and 2484 competitive price, if there are competitive prices, for Service or materials supplied; and (ii) if the 2485 Authority or the Contractor requests, as the case may be, additional back-up documentation as may be 2486 available to reasonably substantiate any Direct Cost, including invoices from suppliers and 2487 subcontractors. Direct Costs excludes Non-Allowable Costs. 2488 “Disposal or Dispose (or other variation thereof) ” means the final Disposition of Solid Waste in 2489 accordance with this Agreement at the Landfill. 2490
“Diversion or Divert” means to Divert from landfill Disposal or transformation through source reduction, 2491 reuse, Recycling, Composting, or other means within the meaning of the Public Resources Code Section 2492 41780. 2493
“Diversion Goal Meeting” means a triennial meeting, described in Section 4.21 of this Agreement, 2494 between the Authority and Contractor, where the parties assess the progress towards achieving a 2495 seventy five percent (75%) Diversion goal by 2020. Nothing in this definition is to be interpreted as a 2496 75 % diversion guarantee. 2497
“Dry Material” means discarded material which is placed for Collection by the Generator as Solid Waste, 2498 but is Collected separately from other Generator’s Solid Waste by a Franchised Collector for the purpose 2499 of Diversion. This material is generally characterized as having a large amount of Recoverable paper, 2500 cardboard, and plastic and having fifteen percent (15%) or less by weight of Organic Materials. 2501 “Food Scraps" means materials that shall decompose and/or putrefy including: (i) all kitchen and table 2502 food waste; (ii) animal or vegetable waste that is generated during or results from the storage, 2503 preparation, cooking or handling of food stuffs; (iii) discarded paper that is contaminated with Food 2504 Scraps; (iv) fruit waste, grain waste, dairy waste, meat, and fish waste; and, (v) non-Recyclable paper or 2505 contaminated paper. Food Scraps are a subset of Organic Materials. 2506 “Franchise Agency(ies) or Franchising Agencies” means the County of Contra Costa and the cities of 2507 Hercules, Pinole, Richmond and San Pablo, collectively. 2508 250
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2509
“Franchised Collector” means the company given the exclusive or limited right, by a Franchise Agency, 2510 to Collect Solid Waste, Organic Materials, and/or Recyclable Materials within the physical jurisdiction of 2511 that agency. 2512
“Generator” means any Person whose act or process produces Solid Waste or Unpermitted Waste or 2513 other material that becomes part of the overall waste stream. 2514 “Goods or Services” means subcontracted Goods or Services used in providing Services, specifically 2515 labor, equipment, and supplies related to furnishing Services. 2516 “Governmental Fees” are federal, state or local fees or general or special taxes, including a business 2517 license tax, imposed on Solid Waste management and handling facilities, including the Landfill and any 2518 and all Approved Processing Facilities pursuant to this Agreement. Governmental Fees do not include 2519 any costs imposed upon or incurred by the Landfill or Approved Processing Facility(ies) in connection 2520 with a governmentally required repair, remediation and improvement of the subject facility, except to 2521 the extent that such requirement is the result of a Change in Law under this Agreement. 2522 “Gross Receipts” shall mean total cash receipts collected from Customers by the Contractor for the 2523 provision of Services pursuant to this Agreement, without any deductions. Gross Receipts do not include 2524 revenues from the sale of Recyclable Materials. 2525
“Guarantor” means Republic Services, Inc. 2526
“Guaranty Agreement” is the agreement in substantially the form attached as Exhibit 8.21 executed by 2527 the Guarantor. 2528
“Hazardous Materials or Hazardous Waste” are materials that by reason of their quality, concentration, 2529 composition or physical, chemical or infectious characteristics may cause or significantly contribute to 2530 an increase in mortality or an increase in serious illness or pose a substantial threat or potential hazard 2531 to human health or the environment when improperly treated, stored, Transported or Disposed of or 2532 otherwise mismanaged; or any waste which is defined and/or regulated as a Hazardous Waste, toxic 2533 waste, hazardous chemical substance or mixture, or asbestos under Applicable Law, and: 2534 (1) "Hazardous Waste" pursuant to Section 40141 of the California Public Resources Code; regulated 2535 under Chapter 7.6 (commencing with Section 25800) of Division 20 of the California Health and 2536 Safety Code; all substances defined as Hazardous Waste, acutely Hazardous Waste, or extremely 2537 Hazardous Waste by Sections 25110.02, 25115, and 25117 of the California Health and Safety 2538 Code (the California Hazardous Waste Control Act), California Health and Safety Code Section 2539 25100 et seq., including 23 CCR Sections 2521 and 2522; 2540 (2) materials regulated under the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et 2541 seq., as amended (including amendments thereto made by the Solid Waste Disposal Act 2542 Amendments of 1980), 2543
251
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(3) materials regulated under the Toxic Substance Control Act, 15 U.S.C. Section 2601 et seq., as 2544 amended, and related federal, State and local laws and regulations, including the California Toxic 2545 Substances Account Act, California Health and Safety Code Section 25300 et seq.; 2546 (4) materials regulated under the Comprehensive Environmental Response, Compensation and 2547 Liability Act, 42 U.S.C. 9601, et seq.; 2548
(5) materials regulated under any future additional or substitute federal, State or local laws and 2549 regulations pertaining to the identification, Transportation, treatment, storage or Disposal of toxic 2550 substances or Hazardous Waste; and 2551
(6) Any substance the presence of which at the Landfill is prohibited by Applicable Law. 2552 If two (2) or more governmental agencies having concurrent or overlapping jurisdiction over Hazardous 2553 Waste adopt conflicting definitions of "Hazardous Waste", for purposes of collection, Transportation, 2554 Processing and/or Disposal, the broader, more restrictive definition is employed for purposes of this 2555 Agreement. 2556
“Holidays” are defined as New Year’s Day, Martin Luther King Holiday, President’s Holiday, Easter 2557 Sunday, Memorial Day, Fourth of July, Labor Day, Columbus Day, Thanksgiving Day, and Christmas Day. 2558 “Household Hazardous Waste” means any Hazardous Waste generated incidental to owning or 2559 maintaining a place of residence, excluding any Hazardous Waste generated in the course of operation 2560 of a business concern at a residence, in accordance with Section 25218.1 of the California Health and 2561 Safety Code. 2562
“Immediate or Immediately” means within twelve (12) hours. 2563 “Indemnities or Indemnification” means all defense and Indemnities under this Agreement. 2564 “Landfill” means Keller Canyon Landfill which is owned and operated by Contractor and located in 2565 Contra Costa County at 901 Bailey Road, Pittsburg, CA. 2566 “Liabilities” means all Liabilities, including: 2567
(1) Actions; 2568
(2) Awards, judgments and damages, both: (i) actual damages, whether special and consequential, in 2569 contract or in tort, such as natural resource damages, damage for injury to or death of any Person; 2570 and damage to property; and (ii) punitive damages; 2571 (3) Contribution or indemnity claimed by Persons other than the Parties; 2572 (4) Injuries, losses, debts, liens, Liabilities; 2573
(5) Costs, such as response remediation and removal costs; 2574 252
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(6) Interest; 2575
(7) Fines, charges, penalties, forfeitures; and 2576
(8) Expenses such as attorney’s and expert witness fees, expenditures for investigation and 2577 remediation, and costs incurred in connection with defending against any of the foregoing or in 2578 enforcing Indemnities. 2579
“Medical Waste” means those waste materials that have disease transmission potential and are 2580 classified as Hazardous Wastes by the State Department of Health Services, including pathological and 2581 surgical wastes, medical clinic wastes, wastes from biological laboratories, syringes, needles, blades, 2582 tubing, bottles, drugs, patient care items that as linen or personal or food service items from 2583 contaminated areas, chemicals, personal hygiene wastes, and carcasses used for medical purposes or 2584 with known infectious diseases, where “Infectious Waste” means biomedical waste generated at 2585 hospitals, public or private medical clinics, dental offices, research laboratories, pharmaceutical 2586 industries, blood banks, mortuaries, veterinary facilities and other similar establishments that are 2587 identified in the California Health and Safety Code Section 25117.5; 2588 “Member Agencies” means the cities of El Cerrito, Hercules, Pinole, Richmond and San Pablo, 2589 collectively. The City of El Cerrito is a Member Agency as defined in the Authority’s Joint Powers 2590 Agreement, however is not covered by or included in this Agreement. 2591 “Niche Service(s)” means performance of additional post-collection materials Recovery services or 2592 activities that are: 2593
(1) Specific recovery methods or programs; 2594
(2) Solely targeting Recovery of certain materials within the municipal waste stream (e.g., mattress 2595 recovery); or, 2596
(3) that individually and in the aggregate of all Niche Services requested represent less than the 2597 percentages in the associated time line of the total waste stream Tons delivered by the Franchise 2598 Collector(s) as follows: 2599
i) For calendar years 2015 through 2017 the maximum percentage shall be two and one half 2600 percent (2.5%); and, 2601
ii) For calendar years 2018 through the remaining Term of this Agreement, including any 2602 extensions, the maximum percentage shall be five percent (5%). 2603 “Niche Services” does not include, without limitation, processes and methodologies that are designed to 2604 capture and process all or significant portions of the post-collection municipal solid waste stream, 2605 including use of waste material as feedstock for waste conversion or destruction technologies such as 2606 autoclaving or plasma arc gasification. Niche Services are limited to the post-collection waste stream 2607 materials and do not conflict withFranchise Collection Agreements. 2608 253
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Exhibit 1 Definitions Page 1-11
“Non-Allowable Costs” include the following: 2609
(1) fines, penalties, assessments and other amounts paid for Violations or noncompliance with 2610 Applicable Law or in settlement of claims or allegations of noncompliance with Applicable Law; 2611 (2) any costs of indemnifications, including Indemnification, Liabilities, or any mediation, arbitration 2612 or judicial proceeding, whether formal or informal; 2613 (3) any contributions or donations to any Person (including charitable, non-profit, service or other 2614 community groups, and elected officials), including cash, property and services in kind; 2615 (4) lobbying costs, whether cash, property or services in kind, such as: 2616 -costs incurred in any direct or indirect attempt to influence the outcome of any federal, State 2617 or local election, referendum, initiative or similar process by citizen electorate or vote upon 2618 resolutions, ordinances or other action items by elected officials (including members of the 2619 Authority Board of Directors, city council, or a county board of supervisors), through cash 2620 contributions, endorsements, publicity or other action; 2621 -establishing, administering, contributing to, or paying the expense of a candidate, political 2622 party, campaign, political action committee, or other Person or organization established for the 2623 purpose of influencing the outcomes of elections or vote, including votes on resolutions, 2624 ordinances or other actions by elected bodies such as the Authority Board of Directors, city 2625 council, or a county board of supervisors; 2626
-attempts to influence (i) the introduction of federal, State or local legislation or (ii) the 2627 enactment or modification of any pending federal, State or local legislation through 2628 communication with any member or employee of Congress, a State legislature or local 2629 governing body, or by preparing, distributing or using publicity; 2630 -legislative liaison activities when those activities are carried on in support of, or in knowing 2631 preparation for, an effort to engage in unallowable activities; and 2632 (5) costs of preparing documentation, including cost, financial and accounting books and Records, 2633 upon request of Authority or any accountant, auditor, financial analyst or consultant retained by 2634 Authority, incurred to substantiate Direct Costs, or allocation thereof. 2635 “Notice” means a Notice given in accordance with Section 8.9. 2636 “Organic Materials” means those Yard Trimmings and Food Scraps which are specifically accepted at 2637 the Approved Organic Materials Processing Facility. No Discarded Material shall be considered to be 2638 Organic Materials, however, unless it is separated from Solid Waste and Recyclable Material. 2639 “Overs” means portion(s) of Organic Material that is/are not suitable for composting. Also called 2640 compost-overs, these are large, woody parts of the compost pile that have not completely broken down 2641 254
Appendix D
Exhibit 1 Definitions Page 1-12
during the composting process. Overs also include plastics and other non-compostable items in the 2642 Organic Material. Overs comprise approximately 7.5 percent of the Organic Material composted. 2643 “Ownership” has the meaning provided under the constructive Ownership provisions of Section 318(a) 2644 of the Internal Revenue Code of 1986 except that (1) ten percent (10%) is substituted for fifty percent 2645 (50%) in Section 318(a)(2)(C) and in Section 318(a)(3)(C) thereof; (2) Section 318(a)(5)(C) is disregarded; 2646 (3) Ownership interest of less than ten percent (10%) is disregarded; and, (4) percentage interests is 2647 determined on the basis of the percentage of voting interest or value which the Ownership interest 2648 represents, whichever is greater. 2649
“Party or Parties” refers to the Authority and Contractor, individually or together. 2650 “Permits” means applicable federal, State, Authority, other local or regional governmental unit Permits, 2651 orders, licenses, approvals, authorizations, consents and entitlements that are required under 2652 Applicable Law to be obtained or maintained by Contractor in order to perform the Services, as renewed 2653 or amended from time to time. 2654
“Person(s)” includes an individual, firm, association, organization, partnership, corporation, trust, joint 2655 venture, the United States, the State, local governments and municipalities and special purpose districts 2656 and other entities. 2657
“Pleas” means the Contractor or any of its representatives has pled “guilty” or entered a Plea of “ nolo 2658 contendere” or “no contest” to Criminal Activity relating to this Agreement. 2659 “Post-Closure” means Post-Closure of the Landfill or portions of the Landfill in accordance with 2660 Applicable Law, including all maintenance and monitoring. 2661 “Post-Collection Rate” or “PCR” means the maximum amount Contractor, through the Franchise 2662 Collector’s billing system, may charge Customers based on their Sector and collection service level which 2663 are established in the manner described in Section 5.4. Contractor may, in its sole discretion, charge any 2664 amount up to and including the maximum Post-Collection Rate approved by the Authority for the 2665 Customer’s collection service level. The Post-Collection Rate is distinct from the Rate. 2666 “Process(ing)” means to prepare, treat, or convert through some special method. 2667 “PRC” means the California Public Resources Code. 2668
“Quarterly Report” is described in Section 4.14. 2669
“Rate(s)” means the maximum amount, expressed as a dollar unit per ton, approved by the Authority as 2670 initially established in Section 5.2 and annually adjusted consistent with the requirements of Section 5.3 2671 of this Agreement. The Rate is established to provide the basis for calculating the allowable Post-2672 Collection Rate(s). The components of the Rate, as described in Section 5.2, have been established and 2673 the initial Rate and its components are presented in Section 5. 2674 “RCRA” means the Resource Conservation and Recovery Act (42 U.S.C. Section 6900 et. seq.). 2675 255
Appendix D
Exhibit 1 Definitions Page 1-13
“Reasonable Business Efforts” means those efforts a reasonably prudent business Person would expend 2676 under the same or similar circumstances in the exercise of that Person’s business judgment, intending in 2677 good faith to take steps calculated to satisfy the obligation that that Person has undertaken to satisfy. 2678 “Records” means all ledgers, books of account, invoices, vouchers, canceled checks, logs, 2679 correspondence and other Records or documents evidencing or relating to Rates, Tonnages, satisfaction 2680 of Contractor’s obligations under this Agreement and performance of the terms of this Agreement, 2681 damages payable under this Agreement and Contractor Defaults, including those Records described in 2682 Sections 4.3, 4.4, 4.14, 4.17, 4.18, 8.14, 8.15 and 10.1. 2683 “Recovered Material” means Recyclable Materials, Organic Materials, C&D materials, and Dry Materials 2684 that are Recovered. 2685
“Recovery or Recover or Recovered (or other variations thereof) ” means the picking, pulling, sorting, 2686 separating, classifying and Recovery of Recyclable Materials from Solid Waste whether by manual or 2687 mechanical means, after acceptance of the materials and before marketing of Recovered Materials, 2688 including Recycling, material reuse and Recovery, mulching, Composting, land application or 2689 transformation. 2690
“Recycle(ing)” means the process of sorting, cleansing, treating and reconstituting materials that would 2691 otherwise be Disposed of at a landfill for the purpose of returning such materials to the economy in the 2692 form of raw materials for new, reused or reconstituted products. 2693 “Recyclable Materials” means materials that are reused, remanufactured, or processed. This definition 2694 is inclusive of both Traditional Recyclable and Specialty Recyclable Materials. 2695 “Residential” shall mean of, from, or pertaining to a single-family premises or multi-family premises 2696 including single-family homes, apartments, condominiums, townhouse complexes, mobile home parks, 2697 cooperative apartments, and yacht harbors and marinas where residents live aboard boats. 2698 “Residue” means Solid Waste remaining as non-marketable commodities following Processing of 2699 Recyclable Materials. 2700
“Services” mean all obligations of Contractor under and in accordance with this Agreement to 2701 Authority. 2702
“Solid Waste” means and includes all putrescible and nonputrescible solid, semisolid, and liquid wastes, 2703 including garbage, trash, refuse, rubbish, ashes, industrial wastes, demolition and construction wastes, 2704 discarded home and industrial appliances, manure, vegetable or animal solid and semisolid wastes, and 2705 other discarded solid and semisolid wastes, as defined in California Public Resources Code §40191 as 2706 that section may be amended from time to time. For the purposes of this Agreement, “Solid Waste” 2707 does not include abandoned vehicles and parts thereof, Hazardous Waste, or low-level radioactive 2708 waste, medical waste, Recyclable Materials, Dry Material, C&D Materials, or Organic Materials. 2709 “Specialty Recyclable Materials” means Recyclable Materials that are not specified as Traditional 2710 Recyclable Materials that can be Collected by the Franchised Collector for purposes of Recycling by any 2711 256
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Exhibit 1 Definitions Page 1-14
Person, including the Authority or the Franchised Collector. For example, Specialty Recyclable Materials 2712 include, but are not limited to, large pieces of scrap metal, mattresses, C&D material, pallets, tires, 2713 plastic film, carpet, used motor oil, and used motor oil filters. 2714 “Standard Industry Practice” means (1) the then-current development and operations practices and 2715 standards of the northern California Solid Waste management industry with respect to Recovery, 2716 Diversion, Transfer, Transport and Disposal Services, and (2) the then-current development, operations, 2717 Closure, and Post-Closure practices and Solid Waste Association of North America (or any successor 2718 organization) Manager of Landfill Operations standards in meeting Contractor’s obligations under this 2719 Agreement for Recovery, Diversion, and Disposal Services. 2720 “State” means the State of California. 2721
“Subcontractors” includes any Person that provides Goods or Services to Contractor, whether pursuant 2722 to formal, written agreement or merely in fact; subcontract means any arrangement, formal or informal, 2723 written or otherwise, between Contractor and a Subcontractor for providing Goods or Services. In no 2724 case shall the Contractor’s use of a Subcontractor confer upon that subcontractor any third party 2725 beneficiary rights under this Agreement. 2726
“Term” is defined in Section 2.2. 2727
“Ton(nage)” means a short Ton of two thousand (2,000) standard pounds where each pound contains 2728 sixteen (16) ounces. 2729
“Traditional Recyclable Materials” means Recyclable Materials which are included in the Processing 2730 and marketing plan of the Approved Recyclable Materials Processing Facility. The initial list of 2731 Traditional Recyclable Materials includes: All mixed paper, cardboard, #1 - #7 plastic beverage and food 2732 containers, mixed rigid plastic packaging and other food containers, glass containers (no Pyrex, 2733 windows, or mirrors), aluminum cans, tin cans, small pieces of scrap metal, plastic bags (properly 2734 bagged together), all mixed plastics, paper cartons, and milk and juice cartons. 2735 “Transfer(ing) (or other variations thereof)” means transferring Solid Waste at the Golden Bear Transfer 2736 Station, if any, from Residential Collection vehicles, Commercial Collection vehicles and self-haulers into 2737 Transfer Vehicles. 2738
“Transfer Vehicle” means a tractor and trailer designed to haul Solid Waste from any Transfer Station to 2739 the Landfill. 2740
“Transport(ation)” means the Transportation of Solid Waste, Organic Materials, and/or Recyclable 2741 Materials from any Transfer Station to the Landfill in accordance with Section 4.1.8. 2742 “Uncontrollable Circumstance(s)” means any act, event or condition, whether affecting (i) Services or 2743 (ii) either Party, that is beyond the reasonable control of the Party relying thereon and not the result of 2744 willful or negligent action or inaction of that Party (other than the contesting in good faith or the failure 2745 in good faith to contest that action or inaction), which materially and adversely affects the ability of 2746 either Party to perform any obligation under this Agreement, comprised of: 2747 257
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(1) An act of nature, landslide, lightning, earthquake, fire, tsunami, flood, or other natural disaster 2748 (excluding reasonably anticipated weather conditions within the jurisdictional Service Area of the 2749 Authority), explosion, sabotage, terrorism, , war, blockade or insurrection, riot, civil disturbance, 2750 or other similar catastrophic events; 2751
(2) The failure of any appropriate federal, State or local public agency or private utility having 2752 operational jurisdiction in the area in which the Landfill or Approved Processing Facility is located 2753 to provide and maintain utilities, services, water, sewer or power transmission lines thereto; 2754 (3) A Change in Law other than a Change in Law excluded in item (ii) below; and 2755 (4) Strikes, work stoppages or other labor disputes or disturbances of Persons other than Contractor 2756 or any Affiliates performing Services; 2757
Uncontrollable Circumstances excludes, without limitation: 2758 (i) Either Party's own breach of its obligations under this Agreement; 2759 (ii) Adverse changes in the financial condition of either Party or any Change in Law with respect to 2760 any taxes based on or measured by net income, or any unincorporated business, payroll, franchise 2761 or employment taxes; 2762
(iii) Strikes, work stoppages or other labor disputes or disturbances lasting longer than ninety-six (96) 2763 hours affecting Contractor or any Affiliates performing Services, or Contractor’s or Affiliates’ 2764 inability to hire adequate numbers of personnel who are competent and skilled in the work to 2765 which they are assigned; 2766
(iv) The failure of the Contractor to secure Permits necessary for Services; and, 2767 (v) As to the Contractor, the failure of any facilities and/or equipment to perform in accordance with 2768 any warranties, unless caused by Uncontrollable Circumstances. 2769 “Unpermitted Waste” means wastes or other materials that the Landfill may not receive under their 2770 Permits, including: 2771
(1) All materials that the Landfill is not permitted to accept; 2772 (2) Asbestos, including friable materials that can be crumbled with pressure and are therefore likely 2773 to emit fibers, being a naturally occurring family of carcinogenic fibrous mineral substances, which 2774 may be Hazardous Materials if it contains more than one percent (1%) asbestos; 2775 (3) Ash residue from the incineration of solid wastes, including Solid Waste, infectious waste 2776 described in Item (8) below, wood waste, sludge not meeting at a minimum Class B standards as 2777 defined by Title 40 of the Code of Federal Regulations, Part 503 (The Standards for the Use or 2778 Disposal of Sewage Sludge) and agricultural wastes; 2779 258
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(4) Hazardous Materials; 2780
(5) Medical Waste; 2781
(6) Liquid wastes that are not spadeable, usually containing less than fifty percent (50%) solids, 2782 including cannery and food Processing wastes, landfill leachate and gas condensate, boiler 2783 blowdown water, grease trap pumpings, oil and geothermal field wastes, septic tank pumpings, 2784 rendering plant byproducts, sewage sludge not meeting certain quality criteria (i.e., unclassified 2785 sludge less than B), and those liquid wastes that may be Hazardous Wastes; 2786 (7) Radioactive wastes under Chapter 7.6 (commencing with Section 25800) of Division 20 of the 2787 State Health and Safety Code, and any waste that contains a radioactive material, the storage or 2788 Disposal of which is subject to any other state or federal regulation; 2789 (8) Sewage sludge comprised of human (not industrial) residue, excluding grit or screenings, removed 2790 from a wastewater treatment facility or septic tank, whether in a dry or semi-dry form not 2791 meeting certain quality criteria (i.e., unclassified sludge less than “B”); and/or 2792 (9) Designated Waste, but only if not permitted at the Landfill under Applicable Law, including 2793 Permits. 2794
This definition shall be promptly amended to reflect any applicable changes in permits or Applicable 2795 Law. 2796
“Violation” means any Notice, assessment or determination of non-compliance with Applicable Law 2797 from any Regulatory Agency to Contractor, after the exhaustion of all appeals and judicial processes, if 2798 applicable, whether or not a fine or penalty is included, assess, levied or attached, where Regulatory 2799 Agency means any federal, State or local governmental agency that regulates Transfer, Transportation 2800 and Disposal of Solid Waste, including California Department of Transportation, California Department 2801 of Motor Vehicles, EDD, U.S. Immigration and Naturalization Services, California Air Resources Board, 2802 regional water quality management districts, California Department of Toxic Substances, CalRecycle, the 2803 Local Enforcement Agency, federal and State Environmental Protection Agencies and other federal or 2804 State health and safety department, applicable to Services. 2805 “Working Days or Work Day (or other variations thereof) ” means each day of the week excepting 2806 Saturdays, Sundays, and Holidays. 2807
“Yard Trimmings” means materials that shall decompose and/or putrefy, including, but not limited to, 2808 green trimmings, grass, weeds, leaves, prunings, branches, dead plants, brush, tree trimmings, dead 2809 trees, small pieces of unpainted and untreated wood, and other types of organic waste. Yard Trimmings 2810 are a subset of Organic Materials. 2811
259
Appendix D
Exhibit 2.4.6 Enhanced Collection Services & Collection Franchise Agreement Amendment Page 2.4.6-1 EXHIBIT 2.4.6 2812
ENHANCED COLLECTION SERVICES AND 2813
COLLECTION FRANCHISE AGREEMENT 2814
AMENDMENT 2815
2816
AMENDMENT TO FRANCHISE AGREEMENT 2817
2818
BETWEEN 2819
2820
CITY OF [insert] [or] CONTRA COSTA COUNTY AND 2821
RICHMOND SANITARY SERVICE, INC. 2822
2823
This Amendment to the Franchise Agreement is entered into effective [date] by and 2824 between the [City of [insert], a municipal corporation (“City”), [County of Contra Costa, a 2825 subdivision of the state of California (“County”)], and Richmond Sanitary Service, Inc., a 2826 California corporation and subsidiary of Republic Services, Inc. (“Contractor”). 2827 2828
RECITALS 2829
2830
1. On [date], the [City][County] and Contractor entered into a Franchise Agreement 2831 for an exclusive right to provide collection and disposal services within the [City][County], and 2832 the Franchise Agreement has since been amended several times. 2833
2. On [date], West County Resource Recovery, Inc., Richmond Sanitary Service, 2834 Inc., West Contra Costa Sanitary Landfill, Inc., Keller Canyon Landfill, Inc. and Golden Bear 2835 Transfer Services, Inc. and the West Contra Costa Integrated Waste Management Authority 2836 (“Authority”) authorized execution of an Agreement for Enhanced Recycling Services, Post-2837 Collection Recycling, and Disposal Services (hereinafter “Post-Collection Agreement”) 2838 governing the handling of waste and recyclables collected in the franchise areas served by the 2839 Contractor. 2840
3. The Authority is a joint powers agency created by the Cities of El Cerrito, 2841 Hercules, Pinole, Richmond, and San Pablo (individually and collectively referred to herein as 2842 “Member Agencies”) in a Joint Exercise of Powers Agreement dated April 2, 1991, and as 2843 amended. 2844
4. Pursuant to the Post-Collection Agreement, Contractor agrees to specific 2845 enhancements of its collection services within the County and Member Agencies for which it is 2846 the current franchisee collector (“Franchise Agencies”), by providing weekly recycling and 2847 organic materials collection to residential customers; weekly mixed residential organics services; 2848 weekly or source separated commercial recyclable and organic materials collection and 2849 processing; routing of commercial customers for dry load collection and processing; expansion 2850 of recyclable materials accepted curbside; and two full-time recycling coordinators to 2851 260
Appendix D
Exhibit 2.4.6 Enhanced Collection Services & Collection Franchise Agreement Amendment Page 2.4.6-2 exclusively serve the Authority’s service area with certain new services beginning on the start 2852 dates specified herein (hereinafter collectively referred to as “Enhanced Collection Services”). 2853
5. The [Cities/County], through the [Authority Joint Powers Agreement/County-2854 Authority Contract], and the 1994 Exhibit to the City/County Franchise Agreement entitled 2855 “Requirements for Franchise Agreements and Covenants Made A Part of Franchise 2856 Agreements,” authorize the Authority to direct the waste stream for processing and disposal to 2857 designated facilities, and the Post-Collection Agreement exercises that authority on behalf of the 2858 [City/County]. 2859
6. The initial Enhanced Collection Services rate adjustments being approved for 2860 residential and commercial customers shall be the sole means of compensation due to Contractor 2861 for providing the Enhanced Collection Services, with the exception of any annual CPI-2862 adjustments provided for herein to which the Enhanced Collection Services are subject to. 2863 AGREEMENT 2864
In consideration of the above and the promises and other provisions in this Amendment, 2865 the Parties agree to amend the Franchise Agreement as follows effective [DATE], 2013. 2866
1. For the remaining term of the Franchise Agreement between [City/County] and the 2867 Contractor, Contractor shall provide the following Enhanced Collection Services at the agreed-2868 upon compensation as set forth below: 2869
a. Weekly Recycling and Organic Materials Collection. No later than October 31, 2870 2014, Contractor shall convert the every-other-week collection program for all residential 2871 recyclable materials and organic materials to a weekly collection program. Such weekly 2872 recycling and organic materials collection will apply to both single family and multi-family 2873 customers. For commercial customers, no later than October 31, 2014, Contractor shall convert 2874 all commercial recyclable materials cart customers from every-other-week to weekly collection 2875 and shall service all cart and bin commercial recycling containers weekly, at a minimum. 2876 2877
b. [Pinole, Hercules and Contra Costa County only] Mixed Residential Organics. 2878 Beginning January 1, 2014, in addition to yard waste, all residential customers including those in 2879 Pinole, Hercules and the County Franchise area, will be allowed to place food scraps and food-2880 soiled paper, into their green waste containers upon the [City/County’s] request. Contractor 2881 shall be responsible for distributing education and outreach collateral (e.g. stickers, mailers, food 2882 pails, etc.) purchased with Authority grant funding, at no additional charge to the Authority, the 2883 City/County, or customers. 2884
2885
c. Source Separated Commercial Recyclable Materials Collection and Processing. 2886 Beginning January 1, 2014, Contractor shall offer commercial customers (including multi-family 2887 customers receiving service in carts and bins) recyclable materials collection from carts and bins 2888 ranging from one to six cubic yards in capacity, and shall offer such service up to three times per 2889 week, at the customer’s request. 2890
2891
261
Appendix D
Exhibit 2.4.6 Enhanced Collection Services & Collection Franchise Agreement Amendment Page 2.4.6-3 d. Source Separated Commercial Organic Materials Collection and Processing. 2892 Prior to April 1, 2014, Contractor shall identify, educate, and sign up restaurants, institutional 2893 kitchens, and food processors for source separated organic materials collection service. 2894 Beginning April 1, 2014, Contractor shall commence collection service for commercial source 2895 separated organics accounts that have signed up for such service. Commercial organic materials 2896 accepted under this program shall include all compostable food waste and food soiled paper. 2897 Prohibited materials under this program shall include hazardous materials, metals, glass, 2898 ceramics, and plastics (except certain compostable bio-plastic bags and food service ware 2899 specified by Contractor). Contractor shall provide such customers the option of using sixty-five 2900 (65) gallon carts and one or two cubic yard bins, at the customer’s request. Collection of source 2901 separated commercial organic materials shall be provided up to three times per week, at the 2902 customer’s request. This service shall be provided at no additional charge to customers who 2903 subscribe to garbage service. 2904
2905
e. Routing of Commercial Customers for Dry Load Collection and Processing. 2906 Beginning December 1, 2013, Contractor shall commence a review of commercial customer 2907 accounts and waste characterization with the purpose of identifying customers where the primary 2908 constituents of their garbage containers are dry and recyclable. The goal for this program is to 2909 identify a sufficient volume of material for one full-time equivalent route. No later than March 2910 1, 2014, Contractor shall have completed this review and shall submit a report to the Authority 2911 identifying the customers who have been selected for the dry routing program. No later than 2912 May 1, 2014, Contractor shall have implemented the dry material collections from customers. 2913 All material collected under this program shall be processed in a manner that maximizes the 2914 recovery of materials, and no material collected under this program shall be disposed of prior to 2915 processing without written approval from the Authority as may be required in Section 4.4 of the 2916 Post-Collection Agreement. 2917
2918
f. Expansion of Recyclable Materials Accepted Curbside. Beginning January 1, 2919 2014, Contractor shall accept the following new or additional recyclable materials curbside: 2920 2921
i. #1-#7 plastic beverage and food containers; 2922
ii. Mixed rigid plastic packaging and other food containers; 2923 iii. Scrap metal; 2924
iv. Plastic film and wrapping (properly bagged); 2925
v. All mixed plastics; 2926
vi. Milk and juice cartons. 2927
2928
g. Recycling Coordinators. By December 1, 2013, Contractor shall hire two full-2929 time recycling coordinators dedicated to work exclusively within the Authority service area. 2930 Responsibilities of the recycling coordinators include, but are not limited to, supervising, 2931 coordinating, and implementing all approved public education and outreach activities and 2932 recycling and diversion programs; serving as liaisons between the Authority, [City/County], and 2933 Contractor; interacting with residents, businesses, community groups, and public agencies. The 2934 full scope of the recycling coordinators’ duties are set forth in Exhibit 4.1.9 of the Post-2935 Collection Agreement. Public education and outreach materials prepared by Contractor shall be 2936 subject to the review and approval of [City/County]. 2937 262
Appendix D
Exhibit 2.4.6 Enhanced Collection Services & Collection Franchise Agreement Amendment Page 2.4.6-4
2. Implementation dates specified in Sections 1.a and 1.c through 1.e. will remain 2938 unchanged as long as all Franchise Agreement amendments are approved no later than 2939 November 15, 2013. If one or more Franchise Agreement Amendments are not approved on or 2940 before November 15, 2013, the following shall apply: 2941 a. Franchise Agencies approving franchise amendments by November 15, 2013, 2942 containing provisions substantially in the form included as Exhibit 2.4.6 of the Post-Collection 2943 Agreement will be able to implement the new reduced post-collection rates established in the 2944 Post-Collection Agreement on January 1, 2014. 2945
b. Franchise Agencies not approving franchise amendments by November 15, 2013, 2946 containing provisions substantially in the form included as Exhibit 2.4.6 of the Post-Collection 2947 Agreement will not be allowed to implement the new post-collection rates established in the 2948 Post-Collection Agreement on January 1, 2014. In this circumstance, the current (2013) post-2949 collection rates will continue to apply in 2014 until thirty (30) days after the franchise 2950 amendment is approved by that Franchise Agency. 2951 c. With the exception of the specific services outlined in section 2.d below, 2952 implementation dates for the other Enhanced Collection Services in sections 1.a and 1.c through 2953
1.e will be delayed one month for each successive month past November 15, 2013. For 2954 example, if all of the Member Agencies approve their respective franchise amendments between 2955 November 16 and December 15, the implementation dates will be delayed one month. 2956 d. Regardless of whether all of the Member Agencies have approved their franchise 2957 amendments by November 15, 2013, Contractor will begin implementing the following 2958 Enhanced Collection Service by December 1, 2013: 1.g (recycling coordinators). In addition, 2959 Contractor will begin implementing the following Enhanced Collection Services by January 1, 2960 2014: 1.b (food scraps in the mixed residential organics containers in jurisdictions that do not 2961 already have this in place); and 1.f (acceptance of the expanded list of recyclables in the curbside 2962 recycling carts placed out for collection). 2963
3. The Contractor’s sole compensation for any costs associated with providing Enhanced 2964 Collection Services shall be the revenue derived from the initial collection rate adjustment(s) 2965 approved by the [City/County] which would go into effect at the same time as the new post-2966 collection rates discussed in Sections 2.a – 2.b, plus any subsequent CPI-adjustments to this 2967 initial collection rate adjustment as authorized pursuant to the [City’s/County’s] rate setting 2968 methodology and process. 2969
4. The Franchise Agreement as amended by this and any prior Amendment executed by 2970 both Parties shall be construed together as one and the same agreement and is the entire 2971 agreement between the Parties. 2972
5. The term of this Amendment shall be coterminous with the remaining term of the 2973 Franchise Agreement. 2974
IN WITNESS WHEREOF, the [City/County] and Contractor have duly authorized execution of 2975 this Amendment and have executed this Amendment as of the date last set forth in the signatures 2976 below. 2977
263
Appendix D
Exhibit 2.4.6 Enhanced Collection Services & Collection Franchise Agreement Amendment Page 2.4.6-5 2978
2979
2980
2981
CITY/COUNTY OF [insert]
By:______________________________
Chair, xxx
Date: ___________________________
Attest: xxx, Clerk
By: ____________________________
Deputy/Secretary
RICHMOND SANITARY SERVICE, INC.,
a California Corporation
By:__________________________________
Name:___________________________
Title: ___________________________
Date:_______________________________
By:_________________________________
Name:___________________________
Title: ___________________________
Date: ______________________________
Note: Two officers must sign on behalf of
corporations. The first must be the chairman of the
board, president or any vice president; the second
must be the secretary, assistant secretary, chief
financial officer or any assistant treasurer. (Corp.
Code, § 313; Civ. Code, § 1190.)
2186761.1 2982
2 983
264
Appendix D
Exhibit 4.1.4 Dry Material Processing Page 4.1.4-1
EXHIBIT 4.1.4 2984
DRY MATERIAL PROCESSING 2985
2986
<Insert DOCUMENT referred to in Section 4.1.4 here> 2987 265
Appendix D
Exhibit 4.1.9 Public Education and Outreach Page 4.1.9-1 EXHIBIT 4.1.9 2988
PUBLIC EDUCATION AND OUTREACH 2989
Republic and its subsidiaries West County Resource Recovery and Richmond Sanitary Service 2990 (“Republic”) understand and recognize the importance of promotion as the key to helping residents and 2991 businesses understand more about Source reduction, Reuse, Recycling, and Composting. 2992 2993
Republic shall, with coordination with the Authority, Member Agencies and the TAC, develop and 2994 implement an approved public education and outreach program. The public education and outreach 2995 program shall include comprehensive, linguistically and culturally appropriate public outreach and 2996 community engagement, with the goal of guiding all customers in effectively implementing source 2997 reduction, reuse, recycling, and composting. The focus and goal of the program is to make recycling and 2998 composting easy, understandable, and convenient for all customers, assisting RecycleMore and Member 2999 Agencies in achieving AB939, AB341, and additionally specified waste diversion goals. Consistent with 3000 these goals, Republic shall: 3001
1. Develop and implement a public education and outreach strategy for the community-wide 3002 launch of supplemental collection services as approved by RecycleMore and Member Agencies, 3003 including weekly residential collection, commercial organics, and commercial dry routing, and 3004 others as appropriate 3005
2. Provide an approved public education, outreach, and customer service delivery that is approved 3006 by RecycleMore and Member Agencies to be linguistically and culturally appropriate consistent 3007 with the community needs of RecycleMore and its Member Agencies. 3008
3. Create and implement a strategy for public outreach and education, approved by RecycleMore 3009 and the Member Agencies, to meet subscription and diversion goals listed in the Term Sheet 3010 and as prioritized by RecycleMore and Member Agencies 3011
4. Design engaging and visually-based or bilingual/multilingual guides, mailers, brochures, 3012 webpages, and other educational materials with final design and content approved by 3013 RecycleMore and Member Agencies 3014
5. Distribute mailers and other educational materials to households, businesses, and other 3015 customers 3016
6. Develop and implement a strategy for outreach and education to community-based 3017 organizations, approved by RecycleMore and Member Agencies, to facilitate participation in 3018 diversion and recycling programs 3019
3020
For purposes of this Public Education and Outreach Program, the term “linguistically and culturally 3021 appropriate consistent with the community needs of RecycleMore and its Member Agencies“ means 3022 targeted outreach that considers the linguistic and cultural diversity within the WCCIWMA service area 3023 and addresses dialectic or unique circumstances relative to ethnic communities, as determined and 3024 approved by RecycleMore and the Member Agencies. 3025
3026
To best achieve the highest possible level of public education and awareness, Republic shall designate 3027 the Recycling Coordinators to supervise, coordinate and implement all approved public education and 3028 outreach activities on our behalf. Republic agrees that the Recycling Coordinators are designated to 3029 266
Appendix D
Exhibit 4.1.9 Public Education and Outreach Page 4.1.9-2 serve Republic within the WCCIWMA service area, and shall not, except in cases of emergency or 3030 extraordinary circumstances, have duties and responsibilities outside the WCCIWMA service area. The 3031 Recycling Coordinators will, in addition to their other employment responsibilities, assist and provide 3032 support to RecycleMore for outreach development. RecycleMore may, at its election, also engage City 3033 staff for outreach development. The Recycling Coordinator job description shall include the following 3034 tasks in his/her principal areas of responsibility. 3035 Partnership with RecycleMore and Member Agency 3036
1. Serve as a liaisons between RecycleMore and Republic 3037
2. Attend RecycleMore Board of Directors, City Council, City staff, and City strategy 3038 development meetings, as appropriate 3039
3. Work with the RecycleMore, and Member Agencies as may be requested by 3040 RecycleMore, to develop, coordinate and incorporate municipal activities into 3041 Republic activities, and vice versa 3042
4. Participate and represent Republic in community activities 3043
5. Ensure customer satisfaction and participation of all program services 3044 Assist local community service organizations with diversion and recycling programs 3045 Media Relations 3046
1. Develop relationships with local television, radio, and newspapers reporters 3047
2. Track local media coverage 3048
Community Outreach 3049
1. 3050
2. Coordinate, develop, and produce an approved education and outreach plan 3051
3. Coordinate implementation of the approved public education and outreach plan 3052
4. Conduct culturally appropriate approved outreach in English and Spanish (or 3053 predominant second language within the service area) as needed 3054
5. Produce visually engaging outreach materials and use social media to as approved 3055 by RecycleMore to promote services and programs Provide draft copies of all 3056 written public education and outreach information for distribution to customers, 3057 such as notices and outreach materials (includes but is not limited to new 3058 customer service package, annual collection calendars, service information updates, 3059 customer reminders, pending RecycleMore rate change notices) to the WCCIWMA 3060 for review, comment and final approval prior to production and distribution to 3061 customers. Concurrently submit one sample of said information in hardcopy form 3062 directly to RecycleMore. 3063
267
Appendix D
Exhibit 4.1.9 Public Education and Outreach Page 4.1.9-3 SINGLE-FAMILY EDUCATION PROGRAMS 3064
Public Education Activities 3065
1. Prepare a flyer/poster illustrating acceptable materials in Recyclable and Organic 3066 Materials Containers, providing instruction on how to prepare Source Separated 3067 Recyclable and Source Separated Organic Materials for collection describe the 3068 acceptable materials that can be included in the Recyclable and Organic Materials 3069 Containers and listing relevant contacts The flyer should emphasize any new 3070 Recyclable Materials to be included in Single-Stream Collection and the Organics 3071 Collection program. 3072
2. Prepare a “how-to” flyer describing the proper set out procedures for Collection 3073 Containers. 3074
3. Prepare and distribute public service announcements (PSA) for local newspapers. 3075 3076
Promoting Recycling and Diversion Programs 3077
1. Visit homeowner associations or other groups to promote and explain programs. 3078
2. Prepare a tenant outreach plan identifying feasible and effective options Republic 3079 Services could implement, if approved by the WCCIWMA, to better ensure 3080 residential and commercial tenants not currently receiving customer notices/bills 3081 are made aware how they can take advantage of the full range of garbage and 3082 recycling services available to them. 3083
3. Prepare an outreach plan for on-call & optional services identifying feasible options 3084 Republic could implement to inform customers and remind them about what 3085 additional services are available upon request to customers at no additional charge 3086 (including existing optional services like free on-call pick-ups and Christmas tree 3087 recycling as well as future enhancements like the small interior containers to be 3088 offered upon request for indoor use by tenants/occupants of multi-family 3089 complexes or businesses to temporarily store their recyclables until they can be 3090 placed in the appropriate centralized collection point, etc.) 3091
4. Prepare and distribute (4) quarterly newsletters in the form of a bill insert or other 3092 media that inform residents about topics such as availability of on-call Bulky 3093 Item/clean-up events, Bulky Item pick-ups, home Composting, proper handling of 3094 Household Hazardous Waste, E-Waste, and U-Waste, and environmental 3095 conservation. 3096
5. Prepare and distribute bill inserts, brochures, and/or featured quarterly newsletter 3 097 article describing how to prepare Source Separated Recyclable and Source 3098 Separated Organic Materials for Collection. Information shall inform residents as to 3099 the acceptable materials that can be included in the Recyclable Materials and 3100 Organic Materials Containers and any common contaminants to be excluded from 3101 Collection to customers. 3102
6. Prepare Corrective Action Notices (Oops Tags) for drivers to use in the event of set-3103 out problems. Tags shall be tailored to residential generator types, and may be used 3104 as a courtesy notice, or a notice of non-Collection. When used as a courtesy notice, 3105 the materials in question shall be collected, but Customers are informed of the 3106 268
Appendix D
Exhibit 4.1.9 Public Education and Outreach Page 4.1.9-4 improper element of the set-out and advised of how to ensure proper set-out in the 3107 future. When used as a non-Collection notice, the Container in question is not 3108 collected, and the tag shall advise Customer of the specific problem. 3109 Prepare and make available through WCRR and RSS’s website “how-to” information on Recycling, 3110 Composting, and proper Container set-outs in Adobe Acrobat PDF and provide Single-Family Customers 3111 with links for additional resources. Enable Single-Family Customers to access information regarding 3112 copies of newsletters and other outreach materials. Multi-Family Education Programs (to include mobile 3113 homes) 3114
Public Education Activities 3115
1. Prepare and distribute information on new programs, Recycling and Diversion 3116 programs available, special services available, proper handling and disposal of 3117 Household Hazardous Waste, etc. 3118
2. Prepare a “how-to” flyer describing how to prepare Source Separated Recyclable 3119 and Source Separated Organic Materials for Collection and describe the acceptable 3120 materials that can be included in the Recyclable and Organic Materials Containers. 3121
3. Prepare a “how-to” flyer describing the Recyclables Collection program for 3122 distribution to tenants and distribute to Multi-Family property managers for 3123 distribution to tenants. 3124
4. Prepare posters describing Collection programs and distribute to Multi-Family 3125 property managers for on-site use. 3126
Promoting Recycling and Diversion Programs 3127
1. Visit apartment managers or home owners’ association meetings or other groups to 3128 promote and explain WCRR and RSS’s Collection programs. 3129
2. Prepare public education material on Recycling, the State and County mandatory 3130 Recycling requirements and how to comply, and proper handling of Household 3131 Hazardous Waste, E-Waste, and U-Waste and distribute (or arrange for distribution 3132 of) materials directly to tenants of Multi-family Premises. 3133
3. Conduct site visits and provide technical assistance. 3134
4. Offer and respond to requests for on-site meetings and workshops. WCRR and RSS 3135 will conduct workshops (when requested by RecycleMore) that will show property 3136 managers and residents, in a hands-on interactive format, how to use the Recycling 3137 and Organics program and will provide resources for additional information and 3138 support. 3139
5. Prepare and distribute “move-in” kits for property managers and owners of Multi-3140 Family complexes to provide new tenants. Move-in kits shall provide Recycling 3141 information and WCRR and RSS’s Customer service phone number where questions 3142 can be answered. 3143
6. As part of WCRR and RSS’s website, provide tenants and property managers with 3144 access to a dedicated multi-family page which will present “how-to” information for 3145 tenants and property managers as well as links to other resources. 3146 269
Appendix D
Exhibit 4.1.9 Public Education and Outreach Page 4.1.9-5
7. Prepare Corrective Action Notices (Oops Tags) for drivers to use in the event of set-3147 out problems. Tags shall be tailored to residential generator types, and may be used 3148 as a courtesy notice, or a notice of non-Collection. When used as a courtesy notice, 3149 the materials in question shall be collected, but Customers are informed of the 3150 improper element of the set-out and advised of how to ensure proper set-out in the 3151 future. When used as a non-Collection notice, the Container in question is not 3152 collected, and the tag shall advise Customer of the specific problem. 3153
8. Prepare and distribute notices to Customers that are not compliant with mandatory 3154 Recycling requirements of AB 341. 3155
9. If a Multi-family/Source Separated Commercial Organic Materials program is 3156 implemented, conduct the following activities: 3157
• Provide a starter kit to educate property managers on the Source Separated 3158 Commercial Organic Materials Collection program; 3159
• Conduct initial site visits to all Multi-Family premises to encourage 3160 participation in the program and customize the program to fit the 3161 Customer’s needs; and, 3162
• Produce and distribute periodically, but at WCRR and RSS’s discretion 3163 newsletters or bill inserts that inform customers about the Multi-3164 Family/Commercial Food Scrap Collection program. 3165
COMMERCIAL EDUCATION PROGRAMS 3166
Public Education Activities 3167
1. Prepare and distribute a flyer and/or “how-to” brochure to businesses explaining 3168 the Recycling services provided to each general business type (restaurants, 3169 office/commercial buildings, strip malls, and large commercial businesses). 3170
2. Prepare and distribute a flyer and/or “how-to” brochure describing the Source 3171 Separated Organic Materials Collection services available to each business type and 3172 how to prepare Organic Materials for Collection. 3173
3. Meet with business associations (Chamber of Commerce, Rotary Club, etc.) in 3174 separate venues to educate businesses on the Recycling and Organics Collection 3175 programs, answer questions, and provide service information. 3176 Promoting Recycling and Diversion Programs 3177
1. Prepare and distribute a newsletter to Commercial Customers promoting and 3178 explaining Source Separated Recyclable Materials and Source Separated Organic 3179 Materials Collection programs. 3180
2. Conduct site visits and provide technical assistance. 3181
3. For Source Separated Commercial Organic Materials Collection, conduct the 3182 following activities, at a minimum: 3183
• Provide a starter kit to educate businesses on the Source Separated 3184 Commercial Organic Materials Collection program; 3185
270
Appendix D
Exhibit 4.1.9 Public Education and Outreach Page 4.1.9-6 • Conduct initial site visits to all schools, institutions, restaurants, bakeries, 3186 grocery stores, and other food scrap generators to encourage participation 3187 in the program and customize the program to fit the Customer’s needs; 3188 • Produce and distribute periodically, newsletters or bill inserts that inform 3189 customers about the Source Separated Commercial Organic Materials 3190 Collection program. 3191
• (Insert details: number of sites, outcomes, etc.) Individual site visits to 3192 each commercial, multifamily and mobile home park customer to 3193 help the customer determine the appropriate mix of diversion 3194 services and achieve diversion goals pursuant to AB 341 (refer to Site 3195 Visit section) 3196
• (Insert details: number of sites, outcomes, etc.) Ongoing audits of 3197 multi-family and commercial locations to help these customers 3198 develop and take advantage of programs to eliminate waste and 3199 increase diversion (refer to Site Visit section) 3200
3201
4. Attend business associations’ meetings to promote and explain the Collection 3202 programs and the State and County mandatory Recycling requirements. 3203
5. Provide employee training to businesses that participate in Source Separated 3204 Recyclable Materials and/or Source Separated Organic Materials Collection 3205 programs, annually upon the Customer’s request. 3206
6. Prepare Corrective Action Notices (Oops Tags) for drivers to use in the event of set-3207 out problems. Tags shall be tailored to Commercial generator types (based on the 3208 program, and may be used as a courtesy notice, or a notice of non-Collection. When 3209 used as a courtesy notice, the materials in question shall be collected, but 3210 Customers are informed of the improper element of the set-out and advised of how 3211 to ensure proper set-out in the future. When used as a non-Collection notice, the 3212 Container in question is not collected, and the tag shall advise Customer of the 3213 specific problem. 3214
7. Prepare and distribute notices to Customers that are not compliant with mandatory 3215 Recycling requirements of AB 341 which identify why the Customer is not compliant 3216 and what actions Customer can take to be compliant. 3217
8. WCRR and RSS shall reach out to various community organizations such as the 3218 Chamber of Commerce, Rotary, business associations and other appropriate groups 3219 to provide detailed Recycling outreach education and offer tools and support for 3220 successful programs. 3221
SCHOOL OUTREACH 3222
Recycling coordinators will cooperate and partner with RecycleMore in a public school education 3223 curriculum to teach children how to Recycle and Compost at school and at home. 3224 Recycling coordinators shall communicate the availability of its educational resources to each school 3225 through a variety of media prior to the opening of school each fall, and follow up and respond to 3226 271
Appendix D
Exhibit 4.1.9 Public Education and Outreach Page 4.1.9-7 school/teacher requests for educational materials, resources, and presentations throughout the 3227 year. 3228
Recycling coordinators will be available to meet with administrators, faculty, facilities personnel, and 3229 parents (through PTA meetings and other means) initially and as needed to establish and provide 3230 training on internal materials capture systems. Recycling coordinators shall provide educational 3231 curriculum and program how-to information in a fun format—such as through story-telling, 3232 Recycling relays, competitions, waste audits, and via video. Educational curriculum, activities, and 3233 presentations are geared toward grade level/age group. 3234 Recycling coordinators shall work with all schools within the District to identify a Recycling champion 3235 within each school who will act as the school’s Recycling coordinator to monitor faculty, staff, and 3236 administrators for optimal, proper Recycling program participation, know of and utilize educational 3237 resources provided by WCRR and RSS and other sources, and communicate Recycling program 3238 results to students. 3239
SPECIAL EVENTS 3240
Arrange for and staff a booth or table at events to promote source reduction, reuse, Recycling, 3241 Composting, and proper handling of E-Waste, U-Waste, and Hazardous Waste and answer questions 3242 about Collection services. WCRR and RSS will develop a stand-alone and table-top professional 3243 display for use at events and will provide corresponding educational components that can be used 3244 to educate Customers and the general public about Recycling in general. 3245 Special event activities will be identified, scheduled, and coordinated through Recycling 3246 Coordinator’s participation with RecycleMore and Member Agency staff. Number of annual special 3247 events to be determined. 3248
OTHER OUTREACH 3249
Produce press releases and advertisements tied to specific community recycling events. Press 3250 releases shall be developed regarding new or enhanced services as needed. Advertisements shall be 3251 developed in conjunction with workshops, training programs, etc. 3252 Conduct educational tours of the WCRR, RSS, GBTS, and WCCSL facilities to familiarize residents, 3253 businesses, and school children with the facilities’ activities. 3254 Attend community workshops to explain Collection services and respond to questions from the 3255 community. 3256
Develop and maintain a website describing services provided. 3257 A translator service based on the predominant secondary language of the service area will be 3258 employed by Republic Services for educational materials. 3259 EDUCATION FOR PUBLIC EVENTS 3260
The Recycling Coordinators will partner with RecycleMore to develop and launch a sustainability-themed 3261 outreach for public events. The program can involve creating a family of “green” Recycling-specific 3262 272
Appendix D
Exhibit 4.1.9 Public Education and Outreach Page 4.1.9-8 educational hand-outs, and a common, customizable booth design that could be used at special events. 3263 The Recycling Coordinators will also work with event planners to bring additional value. This would 3264 include upfront planning for logistics detail, such as placement of Containers, providing a full contingent 3265 of Containers at each Collection point with clear messaging to encourage Recycling participation, clean 3266 up services, sponsorships, and educational materials. This is limited to an agreed upon list of public 3267 events to attend within the service area. 3268
3269
SITE VISITS 3270
3271
We have developed a comprehensive support program to maximize commercial, multifamily and 3272 mobile home park customers' understanding and participation in the program. C omprehensive waste 3273 stream audit of each customer facility will be made by Republic Services to maximize participation in 3274 the new recycling programs, as well as evaluate the most cost-effective and convenient service 3275 required for our customers. The program's four core elements include: 3276 3277
• Site Evaluation. Trained Republic Services staff visits the facility to review existing services, 3278 determine recycling potential, and assess space constraints for additional bins or carts. 3279 • Property Manager/Owner Buy in and Education. The Recycling - Public Outreach 3280 Coordinators make phone calls and meetings to contact the manager or owner about 3281 the expanded services and how they will benefit the facility. 3282 • Employees/ Resident Buy In and Education. The Recycling - Public Outreach 3283 Coordinators host meetings and delivers educational materials to explain the new 3284 program to employees or residents and why they should participate. 3285 • Regular Follow -Up. The continued success of the program depends on regular contact 3286 with the customer to address additional concerns, space or contamination problems, 3287 reeducation, education for new employees/tenants, etc. 3288 3289
CART AND BIN LABELING / LID REPLACEMENT 3290
3291
At the Authority’s request, the Company shall ensure that all company containers are labeled with 3292 durable full color labels and / or lid imprints that illustrate and spell out the range of items that are 3293 and are not acceptable within all containers (including garbage, green waste, debris boxes, and other 3294 Company provided services). 3295
3296
The Company agrees to place labels and / or imprinted lids on all new carts and bins placed into 3297 service and when carts and bins are replaced / repaired. 3298 3299
If the Authority and / or a Member Agency direct the Company to label all existing carts and bins per 3300 this provision, the Company will be allowed to recover the cost of producing the labels and / or 3301 imprints in the collection rates. The parties will meet and discuss costs funded through other 3302 avenues. The Company will complete installation of the labels and/or lids and shall complete 3303 installation within an agreed upon time line or one (1) year of the decision to do so. 3304 3305
273
Appendix D
Exhibit 4.1.9 Public Education and Outreach Page 4.1.9-9 Prior to procuring any lids or labels the Company shall seek and be granted Authority approval for the 3306 design and content of the lids and labels. Labels / lids shall be replaced as needed to ensure that the 3307 appropriate use of each container is readily understandable to the Company’s subscribers. 3308 3309
PRESENTATIONS 3310
3311
A typical presentation will start with an introduction of who we are and what we do at Republic 3312 Services. A brief history on the evolution of solid waste collection, the introduction of recycling and 3313 more recent innovations is outlined . Students are introduced to what role we play in their 3314 communities, with an emphasis on how we can become partners in the collection and diversion 3315 process. The Recycling – Public Outreach Coordinator talks about AB341, AB939, natural 3316 resources, and the landfill. We also discuss the 4 R's and explain the closing the loop process. 3317 Examples are shown of what items are recyclable in their area. Additional time is provided for any 3318 questions and discussion. 3319
3320
Presentations are available for upper elementary, junior high, high school, adult classes or groups, 3321 business organizations, and clubs. The presentations can be modified according to audience and time 3322 constraints. Topics covered include: 3323
• a brief history of garbage and the industry 3324
• what is recycling? 3325
• why do we recycle? 3326
• what do we recycle? 3327
• curbside and commercial recycling 3328
• the recycle process and closing the loop 3329
• products made from recycled material 3330
• markets 3331
• household hazardous waste and collection 3332
• yard waste program and composting 3333
3334
MEDIA SECTION 3335
1. All materials shall rely primarily on images, at a minimum be bilingual (English and Spanish (or 3336 predominant second language within the service area)), and design and distribution coordinated 3337 with RecycleMore and Member Agencies. At a minimum, Republic shall provide on an annual 3338 basis: 3339
2. One (1) flyer/poster for residential customers and one (1) flier/poster for commercial customers 3340 illustrating acceptable materials in Recyclable and Organic Materials Containers, providing 3341 instruction on how to prepare Source Separated Recyclable and Source Separated Organic 3342 Materials for collection, and listing relevant contacts, for residential and customers 3343
3. Four (4) quarterly newsletters in the form of bill inserts for residential customers and four (4) 3344 quarterly bill inserts for commercial customers 3345
4. One (1) handout illustrating acceptable household hazardous waste, e-waste, and universal 3346 waste materials, providing locations for drop off, and listing relevant contacts 3347
5. One (1) starter kit for residential customers and one (1) starter kit for commercial customers for 3348 at the initiation of Recycling Collection Services, and one (1) starter kit for residential customers 3349 and one (1) starter kit for commercial customers at the initiation of Organics Collection Services. 3350
6. Three (3) newspaper ads a n nu a l ly that communicate commercial program and recycling 3351 274
Appendix D
Exhibit 4.1.9 Public Education and Outreach Page 4.1.9-10 information 3352
3353
Additional calendars, brochures, and other material may be developed mutually by the Authority 3354 and the Company. Development and distribution costs may be substituted for one, of the six listed 3355 above. Additional such material may be mutually developed with costs funded through other 3356 avenues. 3357
Provide improved bill message option(s)/alternative(s), such as offering more space, billing inserts 3358 (stuffers), stickers, stamps (rubber), printed messages directly on the outside of envelopes, etc. 3359 3360
INITIAL OUTREACH SCHEDULE 3361
Beginning December 2013 3362
General (All Programs) 3363
1. Hire two recycling coordinators. RecycleMore (RM) staff or TAC member can help with 3364 interview process if Republic desires. 3365
2. Create and finalize outreach and education plan (Annual Plan) (annually) 3366
3. Republic to create a flyer (single or multiple versions) to provide information about what new 3367 materials can be recycled (organics & recyclables) 3368
4. Prepare “how-to” flyer describing proper set out procedures for collection containers 3369
5. Prepare and distribute PSA to local newspapers 3370
Residential 3371
1. RM and Republic coordinate print media production for the new food scraps programs for 3372 Hercules, Pinole and County residents. 3373
a. RM to create postcard, tri-fold flyer and bill insert, put advertisement in local paper and 3374 do a press release. 3375
b. RM prints and sends bill inserts to Republic for distribution 3376 c. RM purchases the counter top pails. 3377
2. Food Scrap pails will be distributed at Republic locations/facilities to residents in Pinole, 3378 Hercules and County by request. IRRF office to distribute pails as well. Member agencies will 3379 distribute pails from City Hall. 3380
January 2014 – December 2014 3381
General 3382
1. Republic to distribute flyer (single or multiple versions) to provide information about what new 3383 materials can be recycled (organics & recyclables) to all business, residents and multi-family 3384 tenants by January 31, 2014. 3385
2. Prepare and distribute 4 quarterly newsletters to all residential and commercial customers 3386 promoting and explaining new recyclable materials and organics program, etc. The information 3387 provided in newsletter can be collaboration with RM staff. RM staff will review content before 3388 275
Appendix D
Exhibit 4.1.9 Public Education and Outreach Page 4.1.9-11 distribution. Cycle 1: January to March; Cycle 2: April to June; Cycle 3: July to September; Cycle 3389 4: October to December 3390
3. Recycling Coordinators to present information about new programs at business chamber events, 3391 expos and other associations throughout the year. 3392
4. The Recycling Coordinators shall make quarterly status presentations/report (ongoing) 3393
5. Republic to create a comprehensive recycling guide about new programs and materials that are 3394 recyclable for residents and businesses (including but not limited to programs offered by 3395 RecycleMore, HHW programs, grants, school programs, compost giveaways, bulky pickup, on-3396 call services). This guide is for the RSS service area. 3397
6. RecycleMore to coordinate a recycling guide with the City of El Cerrito. 3398
7. Make all the information about rates, services and “ How to” available on the Companies’ 3399 websites by December 31, 2014. RM will continue to maintain their website with information 3400 and the Republic website should provide a direct link to www.recyclemore.com 3401 8 . 4 to 5 weeks prior to the start of weekly collection (October 2014) Republic will create, print and 3402 mail (at the latest September 2014) the new Recycling Guide to all residents and businesses. In 3403 addition, ads will be placed in newspaper and local publications (i.e.: Marketplace). 3404
9. October - December 2014: Create and finalize outreach and education plan with RM staff 3405 (Annual Plan). 3406
10. Prepare and distribute notices to customers who are not in compliance with AB341 (annually) 3407
11. Cart and Bin Labeling 3408
Commercial 3409
1. Prepare and distribute a flyer and/or “how-to” brochure to businesses explaining the Recycling 3410 services provided to each general business type (restaurants, office/commercial buildings, strip 3411 malls, and large commercial businesses). 3412
2. Prepare and distribute a flyer and/or “how-to” brochure describing the Source Separated 3413 Organic Materials Collection services available to each business type and how to prepare 3414 Organic Materials for Collection. 3415
3. January-March, Republic to identify educated and subscribe new commercial food scrap 3416 recycling accounts (200 accounts the first year). 3417
4. April 1, 2014 begin the commercial organics collection route. 3418 3419
Multi-Family (January – June) 3420
1. Prepare Move-in kits for property managers/owners for new tenants 3421
2. Schedule training meetings/workshops and presentations to tenant councils 3422
3. Multi-family residents need to be mailed information about weekly collection service (October). 3423
4. If an organics program is implemented, then conduct the following activities: 3424 a. Provide a starter kit to educate property managers on the Source Separated Organic 3425 Materials Collection program; 3426
b. Conduct initial site visits to all multi-family premises to encourage participation in the 3427 program and customize the program to fit the Customer’s needs. 3428 276
Appendix D
Exhibit 4.1.9 Public Education and Outreach Page 4.1.9-12 3429
C&D 3430
1. Construction and demolition information about certification, services and recycling 3431 opportunities provided to customers at the scale house, etc. This can be in the form of a flyer or 3432 guide. 3433
2. RM staff will continue to provide CALGreen information to Member City planning departments. 3434 3435
Special Events 3436
1. Arrange for and staff a booth/table at events throughout the year. 3437
2. Create a professional informative display to be used at special events (Fourth of July, Cinco de 3438 Mayo, Home Front Festival, Juneteenth etc.). Attend at least 10 special events per year. 3439
3. Upfront planning for logistics detail, such as placement of containers, providing a full contingent 3440 of containers. 3441
3442
January 2015-December 2015 3443
3444
Commercial 3445
1. Add 100 more commercial food scraps customers and maintain existing accounts. 3446 3447
Schools 3448
1. RM and Recycling coordinators cooperate on outreach. Recycling Coordinators will begin to 3449 work with RM staff to understand the educational programs offered. The expectation is that 3450 facility tours will be arranged by Republic. 3 451
2. 3452
3. Communicate the availability of educational resources to each school prior to the opening of 3453 school each fall 3454
4. Respond to school/teacher requests for educational materials, resources, and presentations 3455 throughout the year. 3456
5. Conduct educational tours of Company’s facilities (field trips). 3457
6. Work with schools to identify recycling champion who will act as the school’s recycling 3458 coordinator and provide appropriate training 3459
7. Available to meet with administrators, faculty, facilities personnel, and parents (through PTA 3460 meetings and other means) initially and as needed to establish and provide training on internal 3461 materials capture systems. 3462
8. Other school outreach programs 3463
3464
January 2016 – December 2016 3465
General/Commercial 3466
1. At least 400 commercial organics accounts need to be signed up for food scrap diversion 3467 program and maintained customer base. 3468
2. Prepare press releases and advertisements ongoing about the success of new programs/services 3469 (3 times per year). 3470
277
Appendix D
Exhibit 4.1.9 Public Education and Outreach Page 4.1.9-13
3. Maintain website information. 3471
4. Create and finalize outreach and education plan with RM staff (Annual Plan) with measurable 3472 goals. Present quarterly progress on goals to RM staff and Member Agencies (TAC Meetings). 3473 3474
Schools 3475
1. 4Rs and compost classroom presentations; promotional materials including posters, internal 3476 classroom bins, fliers for school programs will be conducted by RM and Republic. 3477
2. Presentations can continue to be collaboration with RM as well as the school newsletter. 3478
3. RM staff would like to add food scrap diversion at schools with cooperation with Republic. 3479 Republic can implement any item sooner. RecycleMore, with input from Republic, may at its discretion 3480 create informative guides that supplement the ones created by Republic. 3481 278
Appendix D
Exhibit 4.14 Reporting Page 4.14-1
EXHIBIT 4.14 3482
REPORTING 3483
3484
<Insert Sample Report Format here> 3485
279
Appendix D
Exhibit 6.2 Insurance Page 6.2-1
EXHIBIT 6.2 3486
INSURANCE 3487
1. General Liability Insurance Services Office form number GL 0002 covering Comprehensive 3488 General Liability and Insurance Services Office form number GL 0404 covering Broad Form 3489 Comprehensive General Liability; or Insurance Services Office Commercial General Liability coverage 3490 ("occurrence" form CG 0001). $10,000,000 combined single limit per occurrence for bodily injury, 3491 personal injury and property damage. 3492
The Commercial General Liability Business policy must contain endorsements in substantially the 3493 following form: 3494
(i) "Thirty (30) Calendar Days prior written notice shall be given to the Authority in the event of policy 3495 cancellation. Such Notice shall be sent via e-mail to: 3496 West Contra Costa Integrated Waste Management Authority 3497 Executive Director 3498
1 Alvarado Square 3499
San Pablo, CA 94806 3500
3501
(ii) "The Authority, its officers, employees, and agents are additional insureds on this policy." The 3502 Authority requires form CG2010 0704. 3503
(iii) "This policy shall be considered primary insurance as respects any other valid and collectible 3504 insurance maintained by the Authority, including any self-insured retention or program of self-3505 insurance, and any other such insurance shall be considered excess insurance only." 3506 (iv) "Inclusion of the Authority as an additional insured shall not affect the Authority's rights as 3507 respects any claim, demand, suit or judgment brought or recovered against the Contractor. This policy 3508 shall protect Contractor and the Authority in the same manner as though a separate policy had been 3509 issued to each, but this shall not operate to increase the Contractor's liability as set forth in the policy 3510 beyond the amount shown or to which the Contractor would have been liable if only one (1) Party had 3511 been named as an insured." 3512
2. Automobile Liability Insurance Services Office form number CA 0001 covering Automobile 3513 Liability, code 1 "any auto" and endorsement CA 458 002 0611 (occurrence form). $10,000,000 3514 combined single limit per accident for bodily injury and property damage. The Automobile Liability 3515 policy must contain the same endorsements as required for Comprehensive General Liability and MCS 3516 90 endorsement. 3517
3518
3. Workers’ Compensation and Employers Liability Insurance. Workers’ compensation limits as 3519 required by State Labor Code Section 3700. 3520
The Workers' Compensation policy must contain a broad form waiver of subrogation: endorsement. 3521 280
Appendix D
Exhibit 6.2 Insurance Page 6.2-2
The insurer must waive all rights of subrogation against the Authority, its officers, employees and 3522 volunteers for losses arising from work performed by the Contractor for the Authority, except for the 3523 willful misconduct or sole negligence of the Authority. 3524
4. Pollution Legal Liability in the amount of ten million dollars ($10,000,000) covering liability 3525 arising from the release of pollution at the Landfill. The Pollution Legal Liability policy must contain the 3 526 same endorsements as required for Comprehensive General Liability. 3527 281
Appendix D
Exhibit 8.19 Liquidated Damages Page 8.19-1
EXHIBIT 8.19 3528
LIQUIDATED DAMAGES 3529
The performance standards and liquidated damages below are intended to identify the damages 3530 associated with the Contractor’s willful or negligent acts or omissions under the Agreement which 3531 reduce the value of the services provided under this Agreement to the Authority and ratepayers. In the 3532 event that a failure to achieve a performance standard is the result of a foreseeable, but uncontrollable 3533 circumstance, Contractor shall notify the Authority, in writing, of its prospective failure and the means 3534 and date by which Contractor intends to remedy the failure. In the event that a failure to achieve a 3535 performance standard is the result of an unforeseeable and uncontrollable circumstance, Contractor 3536 shall notify the Authority in writing within one business day of the failure and shall notify the Authority 3537 of Contractors plans to prevent future failures for similar reasons. The determination of the 3538 unforeseeable and/or uncontrollable nature of the circumstances shall be made in the reasonable 3539 discretion of the Authority’s Contract Manager. This determination may consider the information 3540 provided by the Contractor and any other information which may be relevant. In the event such 3541 circumstances are determined to be unforeseeable and/or uncontrollable, the Authority’s Contract 3542 Manager shall waive the assessment of damages. 3543
3544
Company WCCIWMA 3545
Initial Here _________ Initial Here __________ 3546
3547
Performance Standard Liquidated Damages
1. Failure to implement and conduct operational services. For each day that contractor is delayed in implementing or conducting any operational service(s) required under Sections 4.1.1 through 4.1.7 of this Agreement beyond the specified implementation date
$1,000/service/day
2. Use of Authorized Facilities. For each ton of Solid Waste, Dry Materials, Recyclable Materials, Organic Materials, or C&D Debris delivered to a facility not approved for use under the provisions of this Agreement. This performance standard and associated liquidated damage would not apply in the event that Contractor provides notice in writing within 48 hours to the Authority of the need to use an alternative facility due to an unforeseen and uncontrollable circumstance.
$125/ton
3. Disposal of Organic or Recyclable Materials. For each ton of otherwise marketable Organic Materials or Recyclable Materials Disposed, either pre- or post-processing, without the prior written approval of the Authority. This provision explicitly excludes Dry Materials processing, Compost Overs, and Residue from C&D and Curbside Processing.
$125/ton
4. Timely submission of required reports and rate adjustment requests. For each day that a report or rate adjustment request required by this agreement is overdue past the specified due date. No submittal shall be deemed responsive to this requirement unless it is complete and accurate. In the event that a report is submitted and complete, but contains information the Authority reasonably believes is inaccurate, Contractor shall have ten (10) Working Days to correct or substantiate the information prior to this liquidated damage being imposed.
$200/day for each day
until accurate and
complete submittal
received
5. Timely response to requested information. For each day that contractor fails to respond to an Authority request for information or data that is authorized by the Agreement and which exceeds the allowable timeframes defined by the Agreement.
The Authority shall request the information in writing and provide the Contractor a $200/day for each day
until accurate and
complete submittal
received
282
Appendix D
Exhibit 8.19 Liquidated Damages Page 8.19-2
minimum of 15 business days to respond. No submittal shall be deemed responsive to this requirement unless it is complete and accurate. In the event that a report is submitted and complete, but contains information the Authority reasonably believes is inaccurate, Contractor shall have ten (10) Working Days to correct or substantiate the information prior to this liquidated damage being imposed.
6. Failure to record accurate weights. For each failure to accurately weigh, record, and store the required details related to each and every load of material received at each of the approved facilities. Loads shall be considered inaccurately weighed if Contractor has not received required scale certification or if Contractor fails to update stored tare weights as needed (e.g. when major repairs are done to vehicles). Exceptions include power failures and equipment failures beyond Contractor’s control. In such an event, the Contractor shall comply with the requirements of Section 4.9 of the Agreement in order to record accurate weights.
$250/load
7. Inaccurate disposal reporting. For each ton of waste that is incorrectly attributed to the Authority or any Franchise Agency resulting from an error in Contractor’s submission to the County Disposal Reporting Coordinator, after notice and opportunity for correction of State DRS reports, for the purposes of the State Disposal Reporting System.
$125/ton
8. Delay in producing and/or delivering public education. For each day, up to 30, that Contractor is delayed in the production and/or delivery of public education materials required to be provided to the customers of Richmond Sanitary Service within the Authority service area under Section 4.1.9 of the Agreement, provided that the delay was an event under the control of the Contractor. In the event that a piece of public education is required monthly, quarterly, or annually, the item will be past due on the first day of the following calendar month, quarter, or year respectively.
In the event Contractor is delayed more than thirty (30) days, Contractor shall have failed to perform under the Agreement and the Authority may utilize the funds available under the performance surety to produce and deliver the required education materials.
$100/day for each day
until delivered, up to 30
days per item
AND
$2,500/event if delayed
more than 30 days
9. Failure to provide technical assistance and outreach. Any failure to provide ongoing technical assistance (e.g. site visits requested by customer, the Authority, a Franchise Agency, or required in Section 4.1.8 or the annual education and outreach plan) and community outreach services (e.g. attending public events and venues to promote recycling and diversion programs) as required by the Agreement. Failure to provide technical assistance to Customers shall be counted as one event per Customer. $750/event
10. Accuracy of customer service information. Any documented (e.g. voice recording, copy of written materials or email, etc.) instance of any Contractor employee or agent providing inaccurate information to the public regarding the services provided under the Agreement. Information shall be determined inaccurate if it is in direct contradiction to the services and terms of the Agreement and/or any public education materials (e.g. website, brochures, posters, etc.) which have been approved by the Authority or applicable Franchise Agency. Information shall also be determined inaccurate if it fails to provide complete information on the subject which would educate the Customer about Diversion opportunities (e.g. omitting food waste from a list of accepted materials in the green cart, failing to inform Commercial customers that recycling or organics services are provided at no additional charge, etc.). $250/event
Company WCCIWMA
Initial Here _________ Initial Here __________
283
Appendix D
Exhibit 8.19 Liquidated Damages Page 8.19-3
11. Insufficient number of active source separated organics accounts. For each Customer below the target number of active Source Separated Organics Customers at or after each milestone date (i.e. 200 accounts by December 31, 2014; 300 accounts by December 31, 2015; 400 accounts by December 31, 2016). An account shall only be deemed active if they have subscribed to service, have received a container, and are actively separating organic materials from other solid waste. This measurement may be performed monthly using actual account information from the preceding calendar month. An account shall be considered active for the purposes of this performance standard, regardless of their actual separation of organic materials, if Contractor can demonstrate to the satisfaction of the Authority that Contractor’s Recycling Coordinators have made a good faith effort to work repeatedly with that account to identify and overcome barriers to their use of the program. $200/customer/ month
12. Failure to achieve dry processing diversion. For each ton that actual calendar year dry processing is below 10,000 tons processed in 2014 and 18,250 tons processed in each subsequent calendar year. This measurement may be performed annually using actual results from the preceding calendar year. In the event that actual processing tonnage is at least 90% of the standard for any given calendar year, Contractor may notify the Authority in writing of its intent cure the failure by processing a commensurate volume of additional dry material in the following calendar quarter. If the Contractor fails to provide such notice or process sufficient additional volumes in the following quarter, the performance standard shall not have been met. $150/ton
13. Failure to maintain diversion of C&D recycling. For each month that Contractor fails to maintain 70% or more of mixed C&D processed by Contractor is diverted.
Damages shall be assessed based on the actual percentage of diversion achieved relative to the target, where two percentage points is used to measure the scale of the damage.
For example, if Contractor achieves a diversion rate of 68.2% for a given month, the Authority may assess liquidated damages of up to $1,000 for that month because
68.2% is within two percentage points of the 70.0% target diversion rate. As another example, if Contractor achieves a diversion rate of 67.9% the Authority may assess liquidated damages of up to $2,000 for that month because 67.9% is more than two and less than four percentage points from the 70.0% target diversion rate.
The measurement criteria to be based on overall C&D processing system diversion.
The facility, in whole or in part, shall be certified from a certifying public agency (e.g.
StopWaste.org, City/County of San Francisco, etc.) or industry group acceptable to the Authority. In the absence of a certifying public agency, the Authority and Contractor will meet and confer on certification criteria. In the event of a Change in Law associated with the diversion credit provided for using construction and demolition debris fines as ADC or other beneficial use, the Parties shall agree on a reduced diversion standard based on the elimination of that credit. $1,000 per two
percentage points per
month
3548
3549
Company WCCIWMA 3550
Initial Here _________ Initial Here__________ 3551
284
Appendix D
Exhibit 8.19A Performance Standards Page 8.19A-1
EXHIBIT 8.19.A 3552
PERFORMANCE STANDARDS 3553
3554
Company WCCIWMA 3555
Initial Here _________ Initial Here__________ 3556
Expansion of Acceptable Material for Residential Single Stream Curbside Recycling & Weekly Collection 3557 of Residential Curbside Recycling 3558
• Implementation of expanded acceptable material as of January 1, 2014 3559 • Implementation of weekly collection of residential curbside recycling as of October 31, 2014 3560 • The combined impact is estimated 7-10% (1,264 to 1,805 tons year) increase in collected 3561 tonnage by October 2015. Performance to be measured based on prior 12 month review 3562 (October 2014 – Oct 2015) for the 7-10% increase in collected tonnage. 3563 • Public education material delivered December 2013 for expanded collection material and 3564 September 1, 2014 for weekly collection services 3565
• Future performance for Public Education to be measured as timely delivery of public education 3566 material delivered to maintain program effectiveness 3567 3568
Weekly Collection of Residential Food & Green Organics Curbside Collection 3569 • Implement as of October 31, 2014 3570
• City of Hercules, City of Pinole, and Unincorporated Contra Costa County begin Food Waste 3571 Collection in Green Waste Cart beginning January 1, 2014 3572 • Estimated 5% increase in collected tonnage within first18 months and 10% increase in collected 3573 tonnage within 36 months (seasonally adj.) 3574
• Estimated tonnage impact of an additional 1,000 tons/year within 18 months and an overall 3575 tonnage increase of 1,900 tons over 36 months (estimate may have to be seasonally adjusted) 3576 • Initial period performance to be based upon program implementation and public education 3577 rollout by September 1, 2014 for weekly collection and November 1, 2013 for Food Waste 3578 Collection 3579
• Future performance to be measured by ability to maintain the diversion level achieved 3580 (estimated 5% in first 18 months with an additional 5% for a total of 10% increase in collected 3581 tonnage within 36 months), maintaining the diversion expressed as a percentage of the pre-3582 program baseline. 10% is over pre-program baseline, not an annual percentage increase. Public 3583 education material to be delivered to maintain program effectiveness 3584 3585
Commercial Source Separated Organics Collection 3586
• January 1, 2014 to March 31, 2014 3587
o Identification of the area’s largest organics generating accounts 3588 o Education of targeted accounts 3589
o Subscription to organics service 3590
• April 1, 2014 commencement of dedicated organics collection route 3591 • 200 accounts contacted and 100 accounts subscribed to service and participating by December 3592 2014 3593
285
Appendix D
Exhibit 8.19A Performance Standards Page 8.19A-2
• 300 accounts contacted and 150 accounts subscribed to service and participating by December 3594 2015 3595
• 400 accounts contacted and 200 accounts subscribed to service and participating by December 3596 2016 3597
• Company and Authority/Member Agencies will meet in 2016 to set an ongoing goal of achieving 3598 a 50% customer saturation rate of subscription to organics service from the targeted food 3599 generating accounts 3600
• Company and Authority/Member Agencies have a 3 year planning horizon to maintain program 3601 effectiveness 3602
• Public education material delivered to maintain program effectiveness 3603 • Actual tonnage information from initial 100 accounts (phase 1) during the first 6 months of 3604 route collection will be compiled. Report data collected to Authority/member agencies. 3605 Mutually set estimated tonnage (%) increase target for each future rollout of additional 3606 customers 3607
3608
Commercial Dry Routing, Collection, and Processing 3609 • Implementation begins February 1, 2014 with review of commercial accounts and waste audits 3610 to identify targetable customers 3611
• May 1, 2014 report due to Authority outlining the results of customer audits 3612 • June 30, 2014 implementation of dry collection route 3613 • Phase I collection target of 25% of commercial/industrial stream (estimated at 10,000 tons but 3614 ultimately determined through detailed audits of waste stream and review of data with 3615 Authority) 3616
• 50% minimum diversion rate of collected material (5000 tons of new diversion) within12 3617 months, or by June 30, 2015 3618
• Phase II collection target of an additional 20% of the process-able dry stream (estimated 8,250 3619 tons but ultimately determined through detailed audits of waste stream and review of data with 3620 Authority) 3621
• 50% minimum diversion rate of additional Phase II collected material (4,125 tons of new 3622 diversion) with 24 months of program startup 3623
3624
Mixed Construction and Demolition Materials Processing 3625 • Performance Standard review period begins January 1, 2014 3626 • Achieve diversion of 70% from mixed Construction and Demolition materials processed over the 3627 sort line delivered from Authority. 3628
• Measurement criteria to be based on overall C&D processing system diversion; Total diversion 3629 based upon material delivered and process at C&D facility with acceptance of source separated 3630 material 3631
• C&D plant will be a certified recycling facility. Certification criteria will be based on recognized 3632 agencies or trade organizations. In the absence of suitable recognized agencies/trade 3633 organizations, the Company and the Authority will meet and confer in good faith on acceptable 3634 certification criteria. 3635
3636
Company WCCIWMA 3637
Initial Here _________ Initial Here__________ 3638
286
Appendix D
Exhibit 8.20 Guaranty Agreement Page 8.20-1
EXHIBIT 8.20 3639
GUARANTY AGREEMENT 3640
This Guaranty, made as of the date written below by _________________ (Guarantor), to and for the 3641 benefit of the West Contra Costa Integrated Waste Management Authority (Authority), a municipal 3642 corporation of the State of California (State). 3643
WITNESSETH 3644
WHEREAS, the Contractor and the Authority have negotiated the Agreement between the Authority for 3645 Solid Waste, Recyclable Materials, and Organic Materials Transport, Processing, and Disposal Services 3646 dated as of the later of the date of execution thereof by the Authority or the Contractor, as may be 3647 supplemented and amended from time to time in accordance with the terms thereof (Agreement), 3648 which Agreement is incorporated in this Agreement by reference and by this Agreement made part of 3649 this Agreement; 3650
WHEREAS, it is in the interest of Guarantor that the Contractor enter into the Agreement with the 3651 Authority; 3652
WHEREAS, the Authority is willing to enter into the Agreement only upon the condition that the 3653 Guarantor execute this Guaranty; 3654
WHEREAS, in the event Contractor fails to timely and fully perform its obligations, including the 3655 payment of moneys, pursuant to the Agreement, Guarantor is willing to Guaranty, Contractor’s timely 3656 and full performance thereof; and 3657
WHEREAS, it is a condition precedent to the Authority’s obligations under the Agreement that the 3658 Guarantor provide this Guaranty. 3659
NOW, THEREFORE, as an inducement to the Authority to enter into the Agreement, the Guarantor 3660 agrees as follows: 3661
Capitalized terms used in this Agreement and not otherwise defined in this Agreement, shall have the 3662 meaning assigned to them in the Agreement. 3663
(1) Guaranty of Contractor’s Performance Under Agreement. Guarantor by this Guaranty directly, 3664 unconditionally, irrevocably, and absolutely guaranties the timely and full performance of Contractor’s 3665 obligations under the Agreement in accordance with the terms and conditions contained therein or to 3666 cause that timely and full performance. Within thirty (30) Calendar Days written request therefore by 3667 the Authority, Guarantor shall honor the Guaranty. Notwithstanding the unconditional nature of the 3668 Guarantor’s payment obligations set forth in this Agreement, the Guarantor may assert the defenses 3669 provided in the paragraph entitled Defenses under Section 8 of this Guaranty, against claims made 3670 under this Guaranty. 3671
287
Appendix D
Exhibit 8.20 Guaranty Agreement Page 8.20-2
(2) Governing law; consent to jurisdiction; service of Process. This Guaranty is governed by the laws of 3672 the State of California. The Guarantor by this Guaranty agrees to the service of Process in the State for 3673 any claim or controversy arising out of this Guaranty or relating to any breach. The Guarantor by this 3674 Guaranty agrees that the Superior Court of Contra Costa County, and to the extent permitted by law, the 3675 United States District Court for the Northern District of California, shall have the exclusive jurisdiction of 3676 all suits, Actions, and other proceedings involving itself and to which the Authority may be party for the 3677 adjudication of any claim or controversy arising out of this Guaranty or relating to any breach of this 3678 Guaranty, waives any objections that it might otherwise have to the venue of any Court for the trial of 3679 any suit, action, or proceeding, and consents to the service of process in any suit, action, or proceeding 3680 by prepaid registered mail, return receipt requested. 3681 (3) Enforceability; no Assignment. This Guaranty is binding upon and enforceable against Guarantor, its 3682 successors, Assignees, and lawful representatives. It is for the benefit of the Authority, its successors 3683 and Assignees. The Guarantor may not Assign or delegate the performance of this Guaranty without the 3684 prior written consent of the Authority in its sole discretion. Any Assignment made without the consent 3685 of Authority is voidable by the Authority in its sole discretion. Together with its request for Authority 3686 consent, Guarantor shall pay Authority fifty thousand dollars ($50,000) to pay Authority its reasonable 3687 expenses for private attorneys' fees and investigation costs ("Assignment expenses") necessary to 3688 investigate the suitability of any proposed Assignee, and to review and finalize any documentation 3689 required as a condition for approving any Assignment. Authority shall reimburse Guarantor the excess, if 3690 any, over those Assignment expenses it incurs. Contrariwise, Guarantor shall pay Authority the excess 3691 Assignment expenses, if any, over fifty thousand dollars ($50,000) Authority incurs within thirty (30) 3692 Calendar Days of Authority’s request thereof. Guarantor shall further pay to Authority the Authority‘s 3693 Reimbursement Costs for fees of attorneys who are not Authority employees and investigation costs 3694 necessary to enjoin the Assignment or to otherwise enforce this provision within thirty (30) Calendar 3695 Days of Authority’s request thereof ("injunction costs"). 3696 For purposes of this Guaranty “Assign” and “Assignment” means: 3697 (i) selling, exchanging or otherwise transferring effective control of management of the Guarantor 3698 (through sale, exchange or other transfer of outstanding stock or otherwise); 3699 (ii) issuing new stock or selling, exchanging or otherwise transferring twenty percent (20%) or more of 3700 the then outstanding common stock of the Guarantor which results in a change of control of 3701 Guarantor; 3702
(iii) any dissolution, reorganization, consolidation, merger, re-capitalization, stock issuance or re-3703 issuance, voting trust, pooling agreement, escrow arrangement, liquidation or other transaction 3704 which results in a change of Ownership or control of Guarantor; 3705 (iv) any Assignment by operation of law, including insolvency or bankruptcy, making Assignment for 3706 the benefit of creditors, writ of attachment of an execution, being levied against Guarantor, 3707 appointment of a receiver taking possession of any of Guarantor’s tangible or intangible property; 3708 and 3709
288
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Exhibit 8.20 Guaranty Agreement Page 8.20-3
(v) any combination of the foregoing (whether or not in related or contemporaneous transactions) 3710 which has the effect of any transfer or change of Ownership or control of Guarantor. 3711 For purposes of determining Ownership, the constructive Ownership provisions of Section 318(a) of the 3712 Internal Revenue Code of 1986, as in effect on the date here, shall apply, provided that (1) ten percent 3713 (10%) is substituted for fifty percent (50%) in Section 318(a)(2)(C) and in Section 318(a)(3)(C) thereof; 3714 and (2) Section 318(a)(5)(C) is disregarded. For purposes of determining Ownership under this 3715 paragraph and constructive or indirect Ownership under Section 318(a), Ownership interest of less than 3716 twenty percent (20%) is disregarded and percentage interests is determined on the basis of the 3717 percentage of voting interest or value which the Ownership interest represents, whichever is greater. 3718 (4) Guaranty absolute and unconditional. The undertakings of Guarantor set forth in this Agreement 3719 are absolute and unconditional, and the Authority is entitled to enforce any or all of those undertakings 3720 against Guarantor without being first required to enforce any remedies or to seek to compel the 3721 Contractor to perform its obligations under the agreement or to seek, or obtain recourse against any 3722 other Party or Parties, including but not limited to the Contractor or any Assignee of the Contractor, who 3723 are, or may be, liable therefore, in whole or in part, irrespective of any cause or state of facts whatever. 3724 Without limiting the generality of the foregoing, the Guarantor expressly agrees that its obligations 3725 under this Guaranty shall not be affected, limited, modified or impaired by any state of facts or the 3726 happening from time to time of an event, other than the payment of monetary obligations by the 3727 Contractor to Authority under the Agreement in accordance with the terms of the Agreement, including, 3728 without limitation, any of the following, each of which is by this Guaranty expressly waived as a defense 3729 to its liability under this Guaranty, except to the extent those defenses would be available to the 3730 Contractor and release, discharge or otherwise offset Contractor’s obligations under the Agreement: 3731 (a) the invalidity, irregularity, illegality or unenforceability, of any defect in or objections to the 3732 Agreement; 3733
(b) any modification or amendment or compromise of or waiver of compliance with or consent to 3734 variation from any of the provisions of the Agreement by the Contractor; 3735 (c) any release of any collateral or lien thereof, including, without limitation, any performance bond; 3736 (d) any defense based upon the election of any remedies against the Guarantor of the Contractor, or 3737 both, including without limitation, any consequential loss by the Guarantor of its right to recover 3738 any deficiency, by way of subrogation or otherwise, from the Contractor or any other Person or 3739 entity; 3740
(e) the recovery of any judgment against the Contractor to enforce any of that collateral or 3741 performance bond; 3742
(f) the Authority or its Assignees taking or omitting to take any of the actions which it or any of that 3743 Assignee is required to take under the Agreement; any failure, omission or delay on the part of the 3744 Authority or its Assignees to enforce, assert or exercise any right, power or remedy conferred on it 3745 289
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Exhibit 8.20 Guaranty Agreement Page 8.20-4
or its Assignees by the Agreement, except to the extent that failure, omission or delay gives rise to 3746 an applicable statute of limitations defense by the Contractor with respect to a specific obligation; 3747 (g) the default or failure of the Guarantor to fully perform any of its obligations set forth in this 3748 Guaranty; 3749
(h) the bankruptcy, insolvency, or similar proceeding involving or pertaining to the Contractor or the 3750 Authority, or any order or decree of a court, trustee or receiver in any proceeding; 3751 (i) in addition to those circumstances described in item (h), any other circumstance which might 3752 otherwise constitute a legal or equitable discharge of a Guarantor or limit the recourse of the 3753 Authority to the Guarantor; 3754
(j) the existence or absence of any action to enforce the Agreement; 3755 (k) subject to the provisions of the Agreement relating to Uncontrollable Circumstances, any present 3756 or future law or order of any government or of any agency thereof, purporting to reduce, amend 3757 or otherwise affect the Agreement or to vary any terms of payment or performance under the 3758 Agreement; 3759
provided that, notwithstanding the foregoing, Guarantor shall not be required to pay any monetary 3760 obligation of Contractor to Authority from which Contractor would be discharged, released or otherwise 3761 excused under the provisions of the Agreement. 3762
(5) Waivers. Guarantor by this Guaranty waives: 3763
(a) Notice of acceptance of this Guaranty and of the creation, renewal, extension and accrual of the 3764 limited financial obligations Guarantied under this Guaranty; 3765 (b) Notice that any Person has relied on this Guaranty; 3766 (c) diligence, demand of payment and Notice of default or nonpayment under this Guaranty or the 3767 Agreement, and any and all other Notices required under the Agreement; 3768 (d) filing of claims with a court in the event of reorganization, insolvency, or bankruptcy of the 3769 Contractor; 3770
(e) any right to require a proceeding first against the Contractor or with respect to any collateral or 3771 lien, including, without limitation, any performance bond, or any other requirement that the 3772 Authority exercise any remedy or take any other action against the Contractor or any other 3773 Person, or in respect of any collateral or lien, before proceeding under this Guaranty; 3774 (f) (i) any demand for performance or observance of, or (ii) any enforcement of any provision of, or 3775 (iii) any pursuit or exhaustion of remedies with respect to, any security (including, with limitation, 3776 any performance bond) for the obligations of the Contractor under the Agreement; any pursuit of 3777 exhaustion of remedies against the Contractor or any other obligor or Guarantor of the 3778 290
Appendix D
Exhibit 8.20 Guaranty Agreement Page 8.20-5
obligations; and any requirement of promptness or diligence on the part of any Person in 3779 connection therewith; and 3780
(g) to the extent that it lawfully may do so, any and all demands or Notices of every kind and 3781 description with respect to the foregoing or which may be required to be given by any statute or 3782 rule of law, and any defense of any kind which it may now or hereafter have with respect to this 3783 Guaranty or the obligations of the Contractor under the Agreement, except any Notice to the 3784 Contractor required pursuant to the Agreement or Applicable Law which Notice preconditions the 3785 Contractor’s obligation or the defenses listed in Section (8) below. 3786 To the extent that it may lawfully do so, the Guarantor by this Guaranty further agrees to waive, and 3787 does by this Guaranty absolutely and irrevocably waive and relinquish, the benefit and advantage of, 3788 and does by this Guaranty covenant not to assert, any appraisement, valuation, stay, extension, 3789 redemption or similar laws, now or at any time hereafter in force, which might delay, prevent or 3790 otherwise impede the due performance or proper enforcement of this Guaranty, the Agreement, or the 3791 obligations of the Contractor under the Agreement, and by this Guaranty expressly agrees that the right 3792 of the Authority under this Guaranty may be enforced notwithstanding any partial performance by the 3793 Contractor or the Guarantor, or the foreclosure upon any security (including, with limitation, any 3794 performance bond) given by the Contractor for its performance of any of its obligations under the 3795 Agreement. 3796
(6) Agreements between Authority and Contractor; Waivers by Authority. The Guarantor agrees that, 3797 without the necessity for any additional endorsement or Guaranty by or any reservation of rights against 3798 Guarantor and without any further assent by Guarantor, by mutual agreement between the Authority 3799 and Contractor, the Authority and Contractor may, from time to time 3800 (a) renew, modify, or compromise the liability of the Contractor for or upon any of the obligations by 3801 this Guaranty Guarantied; or 3802
(b) consent to any amendment or change of any terms of the Agreement; or 3803 (c) accept, release, or surrender any security (including, without limitation, any performance bond), 3804 or 3805
(d) grant any extensions or renewals of the obligations of the Contractor under the Agreement, and 3806 any other indulgence with respect thereto, and to effect any release, compromise or settlement 3807 with respect thereto, 3808
all without releasing or discharging the liability of Guarantor under this Guaranty. 3809 The Guarantor further agrees that the Authority or any of its Assignees shall have and may exercise full 3810 power in its uncontrolled discretion, without in any way affecting the liability of the Guarantor under 3811 this Guaranty, to waive compliance with and any default of the Contractor under, the Agreement. 3812 291
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(7) Continuing Guaranty. This Guaranty is a continuing Guaranty and shall continue to be effective or 3813 be reinstated, as applicable, if at any time any payment of any of the obligations under this Guaranty is 3814 rescinded or is otherwise required to be returned upon reorganization, insolvency or bankruptcy of the 3815 Contractor or Guarantor or otherwise, all as though payment had not been made. 3816 (8) Defenses. Notwithstanding any provision in this Guaranty to the contrary, the Guarantor may 3817 exercise or assert any and all legal or equitable rights, defenses, counter claims or affirmative defenses 3818 under the Agreement or Applicable Law which the Contractor could assert against any Party seeking to 3819 enforce the Agreement against the Contractor, and nothing in this Guaranty shall constitute a waiver 3820 thereof by the Guarantor. 3821
(9) Payment of costs of enforcing Guaranty. Guarantor agrees to pay all costs, expenses and fees, 3822 including all reasonable attorney’s fees, which may be incurred by the Authority in enforcing this 3823 Guaranty following the default on the part of the Guarantor under this Guaranty whether the same is 3824 enforced by suit or otherwise. 3825
(10) Enforcement. The terms of this Guaranty may be enforced as to any one (1) or more breaches 3826 either separately or cumulatively. 3827
(11) Remedies cumulative. No remedy in this Agreement conferred upon or reserved to the Authority 3828 under this Guaranty is intended to be exclusive of any other available remedy or remedies, but each and 3829 every remedy is cumulative and is in addition to every other remedy given under the Guaranty and the 3830 Agreement or in this Agreement after existing at law or in equity or by statute. 3831 (12) Severability. The invalidity or unenforceability of any one (1) or more phrases, sentences or 3832 clauses in this Guaranty contained shall not affect the validity or enforce ability of the remaining 3833 portions of this Guaranty, or any part thereof. 3834
(13) Amendments. No amendment, change, modification or termination of this Guaranty is made 3835 except upon the written consent of Guarantor and the Authority. 3836 (14) Term. The obligations of the Guarantor under this Guaranty shall remain in full force and effect 3837 until (i) all monetary obligations of the Contractor under the Agreement shall have been fully performed 3838 or provided for in accordance with the Agreement, or (ii) the discharge, release or other excuse of those 3839 obligations in accordance with the terms of the Agreement. 3840 (15) No set-offs 3841
By Guarantor. The obligation of Guarantor under this Guaranty shall not be affected by any set-off, 3842 counterclaim, recoupment, defense or other right that Guarantor may have against the Authority on 3843 account of any claim of the Guarantor against the Authority; provided that Guarantor reserves the right 3844 to bring independent claims not arising from the Agreement against the Authority so long as any claims 3845 shall not be used to set-off or deduct from any claims which the Authority may have against the 3846 Guarantor arising from this Guaranty. 3847
292
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Exhibit 8.20 Guaranty Agreement Page 8.20-7
By Contractor. The obligation of Guarantor under this Guaranty is subject to any set-off, counterclaim, 3848 recoupment, defense or other right that the Contractor may assert pursuant to the Agreement, if any, 3849 but the obligation of Guarantor under this Guaranty shall not be subject to any set-off, counterclaim, 3850 recoupment, defense or other right that the Contractor may assert independently of and outside the 3851 Agreement. 3852
(16) Warranties and representations. The Guarantor warrants and represents that as of date of 3853 execution of this Guaranty: 3854
(a) The Guarantor has the power, authority and legal right to enter into this Guaranty and to perform 3855 its obligations and undertakings under this Guaranty, and the execution, delivery and performance 3856 of this Guaranty by the Guarantor (i) have been duly authorized by all necessary corporate and 3857 shareholder action on the part of the Guarantor, (ii) have the requisite approval of all federal, 3858 State and local governing bodies having jurisdiction or authority with respect thereto, (iii) do not 3859 violate any judgment, order, law or regulation applicable to the Guarantor, (iv) do not conflict with 3860 or constitute a default under any agreement or instrument to which the Guarantor is a party or by 3861 which the Guarantor or its assets may be bound or affected, and (v) do not violate any provision of 3862 the Guarantor’s articles or certificate of incorporation or by-laws; 3863 (b) This Guaranty has been duly executed and delivered by the Guarantor and constitutes the legal, 3864 valid and binding obligation of the Guarantor, enforceable against the Guarantor in accordance 3865 with its terms; and 3866
(c) There are no pending or, to the knowledge of the Guarantor, threatened Actions or proceedings 3867 before any court or administrative agency which would have a material adverse effect on the 3868 financial condition of the Guarantor, or the ability of the Guarantor to perform its obligations or 3869 undertakings under this Guaranty. 3870
(17) No merger; no conveyance of assets. Guarantor agrees that during the term of this Guaranty in 3871 accordance with Section (14) Guarantor shall not consolidate with or merge into any other corporation 3872 where the shareholders of the Guarantor yield control of the Guarantor, or a majority interest in the 3873 Guarantor, to the newly formed corporation, or convey, transfer or lease all or substantially all of its 3874 properties and assets to any Person, firm, joint venture, corporation and other entity, unless the 3875 Authority consents thereto in accordance with Section (3) above. 3876 (18) Counterparts. This Guaranty may be executed in any number of counterparts, some of which may 3877 not bear the signatures of all Parties to this Guaranty. Each counterpart, when so executed and 3878 delivered, is deemed to be an original and all counterparts, taken together, shall constitute one and the 3879 same instrument; provided, however, that in pleading or proving this Guaranty, it shall not be necessary 3880 to produce more than one (1) copy (or sets of copies) bearing the signature of the Guarantor. 3881 (19) Notices. All notices, instructions and other communications required or permitted to be given to 3882 or made upon any Party to this Guaranty is in writing, and is given in the manner and to the addresses 3883 provided in the Agreement. 3884
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Appendix D
Exhibit 8.20 Guaranty Agreement Page 8.20-8
(20) Separate suits. Each and every payment default by Contractor under the Agreement shall give rise3885 to a separate cause of action under this Guaranty, and separate suits may be brought under this3886 Guaranty by the Authority or its Assignees as each cause of action arises.3887 (21) Headings. The Section headings appearing in this Agreement are for convenience only and shall not3888 govern, limit, modify or in any manner affect the scope, meaning or intent of the provisions of this3889 Guaranty.3890
(22) Entire Agreement. This Guaranty constitutes the entire agreement between the Parties to this3891 Guaranty with respect to the transactions contemplated by this Guaranty. Nothing in this Guaranty is3892 intended to confer on any Person other than the Guarantor, the Authority and their permitted3893 successors and Assigns under this Guaranty any rights or remedies under or by reason of this Guaranty.3894 (23) Personal Liability. It is understood and agreed to by the Authority that nothing contained in this3895 Agreement shall create any obligation or right to look to any director, officer, employee or stockholder3896 of the Guarantor (or any Affiliate thereof) for the satisfaction of any obligations under this Guaranty,3897 and no judgment, order or execution with respect to or in connection with this guaranty is taken against3898 any director, officer, employee or stockholder.3899
(24) Events of Default. Each of the following shall constitute an event of default under this Guaranty:3900 (a) Failure to fulfill payment of guaranty. Guarantor fails to fulfill full and timely payment of any3901 guaranty under this Guaranty, including Section (1), and the failure continues for five (5) Calendar3902 Days after Notice (which is deemed given upon receipt of registered or certified mailing by U.S. Postal3903 Service or of invoiced Commercial Service) (Hereunder defined as Notice) has been given to the3904 Guarantor by the Authority; fails to perform any of its obligations under this Guaranty or engages in3905 any acts prohibited under this Guaranty other than failures itemized below, and fails to cure that3906 failure or conduct within thirty (30) Calendar Days;3907 (b) Breach of Guaranty. The Guarantor fails to observe and perform any covenant, condition or3908 agreement of this Guaranty, other than any failures listed explicitly in this Section, and that failure3909 continues for more than thirty (30) Calendar Days after Notice has been given the Guarantor by the3910 Authority;3911
(c) Failure to give Notice of proposed Assignment. The Guarantor fails to give Authority notice in3912 accordance with Section (19) within ten (10) Calendar Days of the first to occur of:3913 (i) Contractor or any Affiliate issuing a press release as to any proposed Assignment, (within the3914 meaning of Section (3), or consolidation, merger, conveyance, transfer or lease described in3915 paragraph (e) of this Section (24) or;3916
(ii) the filing with the Securities and Exchange Commission of a Form 8-K or other filing with3917 respect to a memorandum of intent or an agreement and plan thereof.3918 (paragraphs (i) and (ii) together defined as Change Notice); 3919 294
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Exhibit 8.20 Guaranty Agreement Page 8.20-9
(d) Consolidation, merger; conveyance of assets. The Guarantor consolidates, merges or conveys,3920 transfers or leases assets in Violation of Section (17) despite the Authority Board of Directors action3921 following Change Notice in preceding paragraph (c) withholding or denying Authority consent, and on3922 or before fifteen (15) Calendar Days thereafter, does not provide Authority with a substitute3923 Guarantor satisfactory to Authority in Authority’s sole discretion;3924 (e) Bankruptcy, insolvency, liquidation . Guarantor files a voluntary claim for debt relief under any3925 applicable bankruptcy, insolvency, debtor relief, or other similar law now or hereafter in effect, or3926 shall consent to the appointment of or taking of possession by a receiver, liquidator, Assignee, trustee,3927 custodian, administrator (or similar official) of Guarantor for any substantial part of Guarantor's3928 operating assets or any substantial part of Guarantor's property, or shall make any general Assignment3929 for the benefit of Guarantor's creditors, or shall fail generally to pay Guarantor's debts as they become3930 due or shall take any action in furtherance of any of the foregoing.3931 A court having jurisdiction enters a decree or order for relief in respect of the Agreement, in any 3932 involuntary case brought under any bankruptcy, insolvency, debtor relief, or similar law now or 3933 hereafter in effect, or Guarantor consents to or fails to oppose any proceeding, or any court enters a 3934 decree or order appointing a receiver, liquidator, Assignee, custodian, trustee, sequestrator (or similar 3935 official) of the Guarantor or for any substantial part of the Guarantor's operating equipment or assets, 3936 or orders the winding up or liquidation of the affairs of the Guarantor; 3937 (f) Breach of representations or warranties . Any representation or warranty of Guarantor is untrue3938 as of the date thereof; Guarantor knowingly makes, causes to be made or condones the making of any3939 false entry in its books, accounts, Records, and reports under this Guaranty.3940 Upon any Event of Default the Authority may proceed first and directly against the Guarantor under 3941 Guaranty without proceeding against or exhausting any other remedies which it may have. The 3942 Guarantor acknowledges that any Contractor Default comprises a Default under the Agreement. 3943 3944
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Exhibit 8.20 Guaranty Agreement Page 8.20-10
IN WITNESS WHEREOF Guarantor has executed this instrument the day and year first below written. 3 945 {Insert appropriate signature block} 3946
Proper notarial acknowledgment of execution by Guarantor must be attached. 3947 Chairman, president or vice-president, and (2) secretary, assistant secretary, CFO or assistant treasurer, 3948 must sign for corporations. Otherwise, the corporation must attach a resolution certified by the 3949 secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the 3950 corporation. 3951
296
Appendix D
Exhibit 10 Corporate Secretary’s Certificate Page 10-1
EXHIBIT 10 3952
CORPORATE SECRETARY’S CERTIFICATE 3953
3954
3955
The undersigned, being the Secretary of ___________________________________, a 3956 Com pany Name395 7
California corporation (“the Company”), do hereby certify that the following resolution was adopted by 3958 the Board of Directors of the Company and that such resolution has not been amended, modified or 3959 rescinded and is in full force and effect as of the date hereof: 3960 3961
RESOLVED, that _______________________________ be, and hereby is, authorized to 3962 Name of Designated Representative 3963
ex
ecute by and on behalf of the Company the Agreement between the West Contra Costa Integrated 3964 Waste Management Authority and the Company for Post Collection Services and any and all other 3965 agreements, instruments, documents or papers, as he/she may deem appropriate or necessary, 3966 pertaining to or relating to such Agreement, and that any such action taken to date is hereby ratified 3967 and approved. 3968
3969
Dated: __________________ 3970
3971
_____________________________ 3972
Signature 3973
3974
_____________________________ 3975
Title 3976
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DISCU
SSION AND/OR ACTION
AGENDA ITEM
2. 25-109
298
REPORT TO THE CITY COUNCIL
DATE: Regular Meeting of April 8, 2025
TO: Mayor and Members of the City Council
SUBMITTED BY: Dante Hall, City Manager
SUBJECT: Discussion Regarding Establishing a New Sister City Relationship RECOMMENDED ACTION:
Staff recommends that the City Council discuss the concept of establishing a new Sister City relationship and provide direction to staff.
BACKGROUND:
On March 11, 2025, Council Member Bhattarai requested a discussion about establishing a new Sister City relationship. The Council agreed unanimously to bring the discussion back at a future meeting. Councilmember Bhattarai also provided the City Manager with a letter from Tilottama Municipality, Nepal, regarding a City-to-City Relationship for City Council consideration (attached).
ANALYSIS:
The City of Hercules has a history of establishing Sister City relationships to foster international partnerships and promote cultural exchange through the Hercules Sister City Association, a volunteer based non-profit. On November 5, 1981, officials from Tsushima, Japan, came to Hercules to sign an affiliation document that formalized the relationship between the City of Hercules and the City of Tsushima. The ceremony took place in Refugio Valley Park and included the dedication of the Tsushima Friendship Bridge that spans the creek leading to the lake. Tsushima renamed a street previously known as Nishiki-machi to Hercules Street. Hercules also has a street named for our Sister City, Tsushima Avenue, which extends from San Pablo Avenue west to John Muir Parkway.
November 5, 2024, marked the 43rd anniversary of the alliance between Hercules and Tsushima.
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Following the establishment of the Sister City relationship, the Hercules Sister City Association sent Hercules Youth Ambassadors, comprising middle and/or high school students, to represent Hercules on a visit to Tsushima and other parts of Japan. The Hercules Sister City Association managed fundraising for the trips and regular communication with the City of Tsushima.
Current Status of Hercules Sister City Association
The Hercules Sister City Association last took applications for the 2020 -2021 Hercules Youth Ambassadors beginning on January 13, 2020. The selected Youth Ambassadors represented the City of Hercules on a trip to Tsushima and other locations in Japan, from late July to early August 2021.
In May 2022, the Hercules Sister City Association notified the City that it was terminating the sister city association between Hercules and Tsushima due to COVID-19 and the lack of resources, including staffing and funding, to resume activities at this time.
Since that time, the Association has undergone some organizational changes and seeks to reestablish its connection with Tsushima more sustainably . As a first step, it is coordinating a virtual exchange between the students of the two cities.
FISCAL IMPACT:
There is no fiscal impact associated with discussing this item. However, approval of this initiative would require additional staff time and funding to establish a framework for implementing the program.
ENVIRONMENTAL REVIEW:
This discussion is exempt from environmental review under the California Environmental Quality Act (CEQA) because it is an administrative activity with no potential significant environmental impact. No discretionary action is being taken.
ATTACHMENTS:
1. Letter from Tilottama Municipality, Nepal, Regarding City-to-City Relation
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