18942561.1
AMENDED AND RESTATED CONTRACT FOR THE COLLECTION AND
TRANSPORTATION
OF MUNICIPAL SOLID WASTE,
RECYCLABLE MATERIALS, AND COMPOSTABLES
AND THE OPERATION OF THE NAPA MATERIALS DIVERSION FACILITY
BETWEEN
THE CITY OF NAPA
AND
NAPA RECYCLING & WASTE SERVICES, LLC
OCTOBER 2022
EXHIBIT "A"
PROPOSED 2022 CONTRACT AMENDMENT (10/18/2022 VERSION)
PROPOSED 2022 CONTRACT AMENDM
ENT (10/18/2022 VERSION)
17650078.3
TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS .......................................................................................... .. ............ 8
1.01 Definitions .................................................................................................................... 8 ARTICLE 2. REPRESENTATIONS AND WARRANTIES OF CONTRACTOR ........................... 9
2.01 Corporate Status .......................................................................................................... 9
2.02 Corporate Authorization ............................................................................................... 9
2.03 Contract Duly Executed ............................................................................................... 9
2.04 No Conflict with Applicable Law or Other Documents .................................................. 9
2.05 No Litigation ................................................................................................................. 9
2.06 Financial Condition ..................................................................................................... 10
2.07 Expertise ..................................................................................................................... 10
2.08 Contractor’s Investigation ............................................................................................ 10
2.09 Statements and Information in Proposal .....................................................................11 ARTICLE 3. TERM OF AGREEMENT ...................................................................................... 12
3.01 Effective Date ............................................................................................................. 12
3.02 Term ........................................................................................................................... 12
3.03 Conditions to Effectiveness of Agreement. .................................................................. 12 ARTICLE 4. COLLECTION OF MUNICIPAL SOLID WASTE, RECYCLABLE MATERIALS AND COMPOSTABLES ................................................................................................ 15
4.01 Scope of Work – General ............................................................................................ 15
4.02 Implementation Plan ................................................................................................... 16
4.03 Residential MSW Collection. .......................................................................................16
4.04 Commercial/Business MSW Collection .......................................................................17
4.05 City Sponsored Special Events ................................................................................... 17
4.06 Diversion Programs. ................................................................................................... 17
4.07 School District Facilities MSW Collection and Recycling .............................................18
4.08 Other Services and Special Services. .........................................................................19
4.09 Hours of Collection ...................................................................................................... 19
4.10 Collection Standards. .................................................................................................. 20
4.11 Litter Abatement. ........................................................................................................ 20
4.12 Hazardous Waste ....................................................................................................... 22
4.13 City's Right to Change Scope of Work ........................................................................24 ARTICLE 5. TRANSPORTATION OF MATERIALS .................................................................. 25
5.01 Transportation and Disposal of MSW ..........................................................................25
5.02 Transportation of Recyclable Materials, Yard Trimmings, Co-Collected Yard Trimmings/Food Scraps, Source-Separated Food Scraps and Source-Separated Construction and Demolition Debris ............................................................................25 EXHIBIT "A"
PROPOSED 2022 CONTRACT AMENDMENT (10
/18/2022 VERSION)
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5.03 Transportation of Mixed Constr
uction and D
emolition Debris ......................................25
5.04 Transportation of Processed Recyclables and Compost .............................................25
5.05 Transportation of Residue ...........................................................................................26
5.06 Transportation of Compostable Materials to Zamora Compost Facility........................26
5.07 Transportation of Hazardous Materials .......................................................................26
5.08 General ....................................................................................................................... 27 ARTICLE 6. OPERATION OF MATERIALS DIVERSION FACILITY .........................................28
6.01 Scope of Work – General ............................................................................................ 28
6.02 Implementation Plan ...................................................................................................29
6.03 Receipt of Recyclable Materials/Compostables ..........................................................30
6.04 Receipt and Processing of Materials From Transfer Station. .......................................31
6.05 Use of Personnel and Equipment ................................................................................34
6.06 Guaranteed Additional Compostables .........................................................................36
6.07 Days and Hours of Operation ......................................................................................37
6.08 Installation of New Processing Equipment ..................................................................37
6.09 Materials Diversion Operations ...................................................................................39
6.10 Permits ....................................................................................................................... 39
6.11 Delivery of Residue to Transfer Station .......................................................................40
6.12 Hazardous Materials ................................................................................................... 41
6.13 Hazardous Waste Exclusion Program .........................................................................42
6.14 Other Operating Procedures and Standards ...............................................................44
6.15 Modifications ............................................................................................................... 44
6.16 Utilities ........................................................................................................................ 44
6.17 Taxes ..........................................................................................................................45
6.18 Marketing of Recovered Materials and Compost. ........................................................45
6.19 Contractor Reports ......................................................................................................50
6.20 City Use of Office ........................................................................................................57
6.21 Origin Reporting by Jurisdiction ..................................................................................57
6.22 Use of Materials Diversion Facility by Designated Hauler for County ..........................58
6.23 City Access to Materials Diversion Facility ..................................................................58
6.24 Proposed Biomass Gasification Plants at Materials Diversion Facility .........................58
6.25 Proposed Anaerobic Digestion to Biofuel System at Materials Diversion Facility ........59 ARTICLE 7. EQUIPMENT AND PERSONNEL..........................................................................61
7.01 General ....................................................................................................................... 61
7.02 Vehicles. ..................................................................................................................... 63
7.03 MSW, Recycling and Compostables Containers. ........................................................ 67 EXHIBIT "A"
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7.04 Materials Diversion Facil
ity E
quipment. .......................................................................69
7.05 City Right to Purchase Equipment, Sales of Equipment ..............................................70
7.06 Personnel. .................................................................................................................. 71 ARTICLE 8. Billing, Account, Customer, and OTHER COLLECTION-RELATED SERVICES ...76
8.01 Collections Account Billing. .........................................................................................76
8.02 Collections Billing Records .......................................................................................... 78
8.03 Collections Monthly Reports .......................................................................................78
8.04 City Access to Collections Billing Information ..............................................................81
8.05 Gatehouse Account Management and Billing ..............................................................82
8.06 Public/Customer Service and Accessibility. ................................................................. 83
8.07 Service Complaints .....................................................................................................85
8.08 City’s Right to Direct Termination of Service to Premises ............................................86
8.09 Change in Collection Schedule ...................................................................................86
8.10 Report of Accumulation of MSW or Unauthorized Dumping ........................................86 ARTICLE 9. RECORD KEEPING, REPORTING AND INSPECTIONS......................................87
9.01 General ....................................................................................................................... 87
9.02 Record Keeping .......................................................................................................... 87
9.03 Reporting ....................................................................................................................87
9.04 Inspection by City .......................................................................................................87
9.05 Compliance Reporting ................................................................................................88
9.06 Route Audits ............................................................................................................... 88
9.07 Reporting Information Required by Bond Indenture ....................................................89
9.08 Reporting Required by Regulating Agencies ...............................................................91 ARTICLE 10. INDEPENDENT CONTRACTOR .........................................................................92
10.01 Contractor an Independent Contractor ........................................................................92
10.02 No Partnership or Joint Venture Created ....................................................................92
10.03 No Entitlement to Benefits ...........................................................................................92 ARTICLE 11. INDEMNITY, INSURANCE, BOND .....................................................................93
11.01 Indemnification ............................................................................................................93
11.02 Insurance. ................................................................................................................... 93
11.03 Faithful Performance Bond ....................................................................................... 100
11.04 Alternative Security ................................................................................................... 101
11.05 Hazardous Waste Indemnification ............................................................................. 101
11.06 Integrated Waste Management Act Indemnification .................................................. 102 ARTICLE 12. COMPENSATION TO CONTRACTOR ............................................................. 103
12.01 General ..................................................................................................................... 103 EXHIBIT "A"
PROPOSED 2022 CONTRACT AMENDMENT
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12.02 Summary of Contactor
Compensat
ion ...................................................................... 103
12.03 Operating & Capital Cost Payments .......................................................................... 104
12.04 Base Profit Margin .................................................................................................... 134
12.05 Additional Payment For Throughput Over Baseline ................................................... 134
12.06 Construction Management Fee ................................................................................. 141
12.07 Incentives ................................................................................................................. 141
12.08 Share of Revenues from Sale of Recyclable Materials and Compost ........................ 146
12.09 Napa Valley Unified School District. .......................................................................... 147
12.10 Unit-Priced Services and Allowances ........................................................................ 151
12.11 Additional Public Outreach ........................................................................................ 152
12.12 Hauling & Disposal Costs of Organic Materials from MDF ........................................ 152
12.13 Adjustments for Changes .......................................................................................... 154
12.14 Extraordinary Events ................................................................................................ . 154
12.15 Information Supporting Requests .............................................................................. 155
12.16 Arbitration, Judicial Review ....................................................................................... 155 ARTICLE 13. DEFAULT AND REMEDIES .............................................................................. 162
13.01 Events of Default ...................................................................................................... 162
13.02 Right to Suspend or Terminate Upon Default. ........................................................... 164
13.03 Specific Performance ................................................................................................ 164
13.04 City’s Right to Cure in Event of Contractor Default .................................................... 165
13.05 City's Right to Perform In Event of Suspension or Termination ................................. 165
13.06 Use of Property Upon Default ................................................................................... 166
13.07 Damages .................................................................................................................. 167
13.08 City’s Remedies Cumulative ..................................................................................... 167
13.09 Liquidated Damages ................................................................................................ . 167
13.10 City Default ............................................................................................................... 172 ARTICLE 14. OTHER AGREEMENTS OF THE PARTIES ...................................................... 174
14.01 Relationship of Parties .............................................................................................. 174
14.02 Compliance with Law; Non-Discrimination ................................................................ 174
14.03 Assignment ............................................................................................................... 174
14.04 Subcontracting .......................................................................................................... 177
14.05 No Affiliated Entity..................................................................................................... 177
14.06 Contractor’s Investigation; No Warranties by City ..................................................... 177
14.07 Condemnation .......................................................................................................... 179
14.08 Notice ....................................................................................................................... 179
14.09 Representatives of the Parties. ................................................................................. 180 EXHIBIT "A"
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14.10 Duty of Contractor Not to Di
scri
minate ...................................................................... 181
14.11 Right to Inspect Contractor Operations ..................................................................... 181
14.12 Maintenance and Review of Records, Submission of Reports .................................. 181
14.13 Right to Demand Assurances of Performance .......................................................... 182
14.14 Right of City to Make Changes ................................................................................. 182
14.15 Force Majeure ........................................................................................................... 183
14.16 Cooperation During Transition .................................................................................. 185
14.17 No Damages for Invalidation of Contract ................................................................... 185
14.18 Guaranty ................................................................................................................... 185
14.19 Diversion Programs Not Restricted ........................................................................... 185
14.20 Reports as Public Records ........................................................................................ 186
14.21 City Rights Regarding Collection Fees and Gate Fees ............................................. 187
14.22 Office and Storage .................................................................................................... 188
14.23 Customer Service Center .......................................................................................... 188 ARTICLE 15. MISCELLANEOUS AGREEMENTS .................................................................. 189
15.01 Governing Law .......................................................................................................... 189
15.02 Jurisdiction ................................................................................................................ 189
15.03 Binding on Successors ............................................................................................. 189
15.04 Parties in Interest ...................................................................................................... 189
15.05 Waiver ...................................................................................................................... 189
15.06 Attachments .............................................................................................................. 189
15.07 Entire Agreement ...................................................................................................... 190
15.08 Section Headings ...................................................................................................... 190
15.09 Interpretation ............................................................................................................. 190
15.10 Amendment .............................................................................................................. 190
15.11 Severability ............................................................................................................... 190
15.12 Costs and Attorneys’ Fees ........................................................................................ 190
15.13 References to Laws .................................................................................................. 190
15.14 City’s Municipal Code ............................................................................................... 191
15.15 Employment Matters ................................................................................................ . 194 EXHIBIT "A"
18981923.1
LIST OF ATTACHMENTS
Attachment A: Definitions
Attachment B: S
cope of Work for Collection Operations
Attachment C-1: Implementation Plan for Collection
Attachment C-2: Implementation Plan for Materials Diversion Facility Attachment D: NOT USED
Attachment E: N apa Valley Unified School District Scope of Services Attachment F: Scope of Work for Operations at Napa Material Diversion Facility Attachment G: Permits Applicable to Materials Diversion Facility Attachment H: MDF Performance Standards
Attachment I: NOT USED
Attachment J: Process Descriptions and Drawings
Attachment K: Collection Vehicles to be Furnished by Contractor Attachment L: MSW, Recyclable Materials and Yard Trimmings Containers to be Furnished by Contractor
Attachment M-1A: City Furnished Office Equipment
Attachment M-1B: Listing of City-Owned Recycling Equipment Attachment M-2: Listing of MRF Equipment Contractor Owned Attachment M-3: Listing of Stormwater and CASP Contractor Owned Equipment Attachment N: Contractor Furnished Personnel
Attachment O: NOT USED
Attachment P: NOT USED
Attachment Q: Billing Protocol
Attachment R: Reports to be Submitted to City
Attachment S-1: Faithful Performance Bond
Attachment S-2: Co ntinuation Certification
Attachment T: Combined Operating and Capital Cost for Collection of MDF Operation Attachment U: Reconciliation Review Process
Attachment U-1: Metrics and Methodology for Reconciliation Review Attachment V-1: Targeted Incentive (TI)
Attachment V-2: Residue Reduction Incentive (RRI)
Attachment V-3: Collection Incentive (CI)
Attachment V-4: Sample Glossary of Material and Facility Codes Attachment W: Transition Plan at the Expiration of Term (December 31, 2031)
EXHIBIT "A"
PROPOSED 2022 CONTRACT AMENDMENT (10/18/2022 VERSION)
18981923.1
Attachment X Guaranty
Attachment Y: Arbi
tration of Disputes Arising Under Sections 12.13 and 12.14 Attachment Z: Letter to Employees Union
Attachment AA: City of Napa / Northern Recycling Agreement Attachment BB: Map of Five Mile Radius from Entrance of Materials Diversion Facility Attachment CC: List of Balers Provided by Contractor Pursuant to Section 6.03.02 Attachment DD: Materials Diversion Facility Paid Report Attachment EE: Napa Materials Diversion Facility Operating Regulations (Updated 2022) Attachment FF: Buyer / Broker Information Sheet
Attachment GG: Additional Payment Calculation Methodology for 2013 to End of Term Attachment HH: Purchase Order for Recycle More Vehicle
Attachment II: NOT USED
Attachment JJ: Bill Insert for Recycle More Program
Attachment KK: NOT USED
Attachment LL: Agreed Upon Procedures for Reporting on Materials Sales Transactions with Affiliated Entities
Attachment MM: Sample Calculations for Disposition Costs When No Markets Exist (Negative Value Recovered Materials)
EXHIBIT "A"
PROPOSED 2022 CONTRACT AMENDMENT (10/18/2022 VERSION)
PROPOSED 2022 CONTRACT AMENDMENT
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1 17650078.3
RECITALS
A. The State of California has found and
declared that the amount of solid
waste generated in California, coupled with diminishing landfill space and potential adverse environmental impacts from landfilling, have created an urgent need for State and local agencies to enact and implement an aggressive integrated waste management program. The State has also found that the recycling or reuse of solid waste will conserve not only landfill capacity but water, energy and other natural resources. The State has, through enactment of the California Integrated Waste Management Act of 1989 and amendments thereto (hereinafter referred to as the “Act”), and Sections 39730.5 through 39730.8 of the California Health and Safety Code, regarding emissions, and amendments thereto, directed the responsible state agency, and all local agencies, to promote recycling and to maximize the use of feasible source reduction, recycling and composting options in order to reduce the amount of solid waste that must be disposed of by land disposal.
B. The City concurs in the aforementioned findings and declarations of the State of California.
C. The City has implemented comprehensive recycling programs for residential, commercial and other operations in the City, which entail collection of Recyclable Materials, Yard Trimmings, Residential Co-Collected Food Scraps and Yard Trimmings, Commercial Food Scraps and Source Separated Construction and Demolition Debris and processing of these and other materials at City’s Materials Diversion Facility. These recycling and composting operations are integral and important components of the City’s strategy for implementing the Act and are EXHIBIT "A"
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incorporated into the City’s Source Reduct
ion and Recycling Element which, in turn, has
been incorporated into the Napa County Integrated Waste Management Plan.
D. In July 2004, City issued a Request for Proposals for Diversion Services and Residual Municipal Solid Waste Management (hereinafter referred to as “RFP”) seeking proposals from qualified firms to provide collection of Municipal Solid Waste, Recyclable Materials, and Yardwaste and operation of the Napa Materials Diversion Facility (which entails processing materials for reuse and recycling, marketing of such materials, and transporting nonrecyclable residue for disposal.) Contractor made an independent investigation, satisfactory to it, of the conditions and circumstances surrounding the RFP and addenda, if any, the work to be performed by it, the recycling and source reduction programs then in effect in the City and other Participating Agencies, the Materials Diversion Facility site and facilities, and equipment then installed in the Materials Diversion Facility, the environmental documents associated with the Materials Diversion Facility as well as the permits governing its adoption, the Source Reduction and Recycling Elements adopted by each of the Participating Agencies, and the Agreement between the NVWMA and the operator of the transfer station.
E. City evaluated all proposals submitted and determined that the Contractor proposed to provide such services in a manner and on terms which were in the best interests of the City and its residents, taking into account the qualifications and experience of the Contractor, the Contractor’s demonstrated commitment to recycling, the fact that Contractor took no exceptions to the draft contract included in the RFP and the cost of providing such services.
EXHIBIT "A"
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3 17650078.3
F. The City and Contractor entered into a co
ntract for Collection and
Transportation of Municipal Solid Waste, Recyclable Materials, and Yardwaste and operation of the Napa Materials Diversion Facility on December 7, 2004 (City Agreement No. 8687, hereinafter referred to as the “Initial Agreement”) The effective date of the Initial Agreement was January 14, 2005. The Contractor’s obligation to collect Municipal Solid Waste, Recyclable Materials and Yardwaste and to operate the Materials Diversion Facility began on October 1, 2005 at 12:01 a.m.
G. The parties executed the First Amendment to the Initial Agreement on March 1, 2005 to replace seven (7) conventional diesel fuel collection vehicles with seven (7) collection vehicles powered by engines using compressed natural gas (“CNG”).
H. The parties executed the Second Amendment to the Initial Agreement on July 6, 2010 to formalize agreements made among the parties and an affiliate of Contractor that had been summarized in a signed “Joint Summary Report” dated April 9, 2007. These agreements were required as a result of several changed conditions that occurred between 2006 and 2010 including the following: Northern Recycling Operations and Waste Services, LLC (an Affiliated Entity of Contractor, hereinafter referred to as “Northern”) competed for and was awarded a 15-year contract to operate the Transfer Station owned by the Napa-Vallejo Waste Management Authority (hereinafter “NVWMA”) of which City is a member. Northern’s proposal to the NVWMA (which was incorporated into the Northern-NVWMA contract) included several provisions that were not contemplated by the terms of the Initial Agreement that could potentially harm the City if not addressed in the Second Amendment, including EXHIBIT "A"
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4 17650078.3
(i) Northern’s use of some of the pers
onnel and equipment that were already
contractually committed to City pursuant to the Initial Agreement, (ii) Northern committing to divert twenty-five percent (25%) of incoming tonnage to the Transfer Station in year one of the Northern-NVWMA contract, thirty percent (30%) by year three, and thirty-five percent (35%) by year five which had the potential to put the Northern’s Transfer Station operations in direct competition with the City’s MDF for processing recyclable materials from the Napa Valley-Vallejo wasteshed.
I. On March 19, 2010, the NVWMA approved an amended and restated contract with Northern that included reducing the required diversion level from twenty- five percent (25%) to fourteen percent (14%) of the inbound tonnage at the Transfer Station.
J. Another changed condition addressed in the Joint Summary Report was the deployment of balers for recycled materials, and collection of the baled materials, by other Affiliated Entities of Contractor within a ten-mile radius of the MDF. Such diversion of recyclable materials from the MDF would have been financially detrimental to City.
K. The Second Amendment to the Initial Agreement also deleted the diversion incentives described in Section 12.04 which were no longer workable given Northern’s operation of the Transfer Station (resulting in there being no independent third party to verify tonnages delivered to the Transfer Station by Contractor on behalf of City) and Northern’s scope of work for the NVWMA that included separation of mixed construction and demolition waste from City and other NVWMA member jurisdictions.
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L. The Second Amendment also documented th
e parties’ agreements on
operational changes that had evolved since Contractor commenced City Collection operations and processing of materials at the MDF on October 1, 2005.
M. The parties executed the Third Amendment to the Initial Agreement on July 30, 2014 to create new incentives to financially compensate Contractor when diversion of specified materials is increased, to add the Recycle More Program, and to document changes in operational procedures put into place since the Second Amendment was signed.
N. On April 16, 2014 the City exercised its right pursuant to Section 3.03 to extend the Initial Agreement by a period of one year, to December 31, 2016.
O. On October 20, 2016 the City exercised its right pursuant to Section 3.03 to extend the Initial Agreement by another period of one year, to December 31, 2017.
P. On November 7, 2017 the City exercised its right pursuant to Section 3.03 to extend the Initial Agreement by another period of one year, to December 31, 2018.
Q. The parties now desire to amend the Initial Agreement and extend the existing term through December 31, 2031.
R. Since 2005, the Contractor has performed the scope of services contained in the Initial Agreement and has thoroughly investigated and analyzed the new scope of services and it has full knowledge concerning the conditions, circumstances and costs encompassing this Amendment and the work to be performed by it under this Contract.
Contractor hereby enters into the 2022 Amendment with full knowledge concerning the EXHIBIT "A"
PROPOSED 2022 CONTRACT AMENDMENT
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6 17650078.3
conditions, circumstances and c
osts encompassing the Contract, and the work to be
performed by Contractor under the Contract.
S. The City elected to negotiate with Contractor to extend the existing term of the Initial Agreement and to amend the Initial Agreement consistent with the non- binding Memorandum of Understanding, as amended November 13, 2017 and executed by the Public Works Director and Contractor's General Manager/Managing Member, in order to continue the high quality of service the City has received from Contractor.
T. The 2018 Amendment allowed the City to leverage the competitive process by which the Contractor was selected and the terms of the Initial Agreement were established in order to manage costs and continue to receive a high level of service from the Contractor. In particular, the Amendment was valuable to the City and its rate payers as, based on the Contractor's agreement to maintain the vehicles and equipment for a fourteen year working life, rather than the ten year industry standard, the Amendment provided a total of twenty-six years of service with only two major cycles of vehicles and equipment. The Amendment also resulted in reduced air emissions from the conversion of Contractor's entire fleet of heavy refuse and recycling vehicles to one hundred percent CNG vehicles. In negotiations, the Contractor has also met the City's challenge to bring additional flow of compostable organic material in order to generate revenue to offset the costs of this Amendment and it agrees to maintain this flow for a minimum of ten years.
U. Additionally, the Amendment allowed the City to continue to receive the benefits of the Initial Agreement, such as the preservation and improvement of the EXHIBIT "A"
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incentives and performance based compensa
tion structure and the use of the
Contractor's Customer Service Office and storage facility at no cost to the City.
V. The 2018 Amendment contemplated the estimated compensation to the Contractor for the City's Covered Aerated Static Pile (CASP) composting system and associated stormwater management improvements, but the parties agreed additional supplemental payments would be required once the permit and regulatory requirements were established. In January and April 2020, respectively, the CASP and stormwater management improvements became operational. This 2022 Amendment memorializes changes to the compensation and operational terms necessitated by the successful operation of the CASP and associated stormwater management improvements as well as refinements to other Contract terms.
W. Finally, the City elected to negotiate with Contractor based on Contractor's representation, after due investigation, that the costs outlined in Article 12. and Attachment T are the final, all-inclusive costs for Contractor's compensation unless otherwise specifically enumerated in the Contract.
NOW, THEREFORE, in consideration of the mutual promises contained in this Contract, and for other good and valuable consideration, the parties agree as follows:
EXHIBIT "A"
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ARTICLE 1. DEFINITIONS
1.01 Definitions. Unless the context
otherwise requires, capitalized terms
used in this Contract shall have the meani
ngs set forth in the definitions contained in
Attachment A.
EXHIBIT "A"
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ARTICLE 2. REPRESENTATIONS AND WA
RRANTIES OF CONTRACTOR
2.01 Corporate Status. Contractor
is a limited liability company duly
organized, validly existing and in good stan
ding under the laws of the State of
California, and is qualified to do business in the State of California.
2.02 Corporate Authorization. Contract
or has the authority to enter into and
perform its obligations under this Co
ntract. The Members of Contractor have taken all
actions required by law, the limited liability company agreement dated as of September 23, 2004 including any amendments thereto, or otherwise to authorize the execution of this Contract.
2.03 Contract Duly Executed. The persons si
gning this Contract on behalf of
Contractor have been authorized to do so and thi
s Contract constitutes a legal, valid
and binding obligation of Contractor.
2.04 No Conflict with Applicable Law
or Other Documents. Neither the
execution and delivery by Contractor of t
his Contract, nor the performance by
Contractor of its obligations hereunder (i) conflicts with, violates or will result in a violation of any existing applicable law; or (ii) conflicts with, violates or will result in a breach or default under any term or condition of any existing judgment, order or decree of any court, administrative agency or other governmental authority, or of any existing contract or instrument to which Contractor is a party, or by which Contractor is bound.
2.05 No Litigation. There is no action, sui
t, proceeding, or investigation at law
or in equity, before or by any court or governm
ental entity, pending or threatened
against Contractor, or otherwise affecting Contractor, wherein an unfavorable decision, EXHIBIT "A"
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10 17650078.3
ruling, or finding, in any single cas
e or in the aggregate, would materially adversely
affect Contractor’s performance hereunder, or which, in any way, would adversely affect the validity or enforceability of this Contract, or which would have a material adverse effect on the financial condition of Contractor.
2.06 Financial Condition. During the 2004 Reques
t For Proposal Process,
Contractor made available to City infor
mation on the financial condition of its Members.
In addition, Contractor has provided a copy of its audited financial statements to the City annually since 2006. Contractor recognizes that City has relied on this information, and continues to rely on this information, in evaluating the sufficiency of Contractor’s financial resources to perform this Contract. To the best of Contractor’s knowledge, this information is complete and accurate, does not contain any material misstatement of fact and does not omit any fact necessary to prevent the information provided from being materially misleading.
2.07 Expertise. Contractor has the experti
se and professional and technical
capability to perform all of its obli
gations under this Contract.
2.08 Contractor’s Investigation. P
rior to submitting its original proposal to the
City in 2004, Contractor conducted an indepe
ndent investigation and analysis, the
results of which were satisfactory to Contractor, of the conditions and circumstances surrounding the Contract, its content and preparation, and the work to be performed by Contractor under the Contract. The original 2004 Contract accurately and fairly represented the intentions of Contractor, and Contractor entered into this Contract on the basis of that independent investigation and analysis. Since October 2005, Contractor has performed the scope of services contained in the Contract and has EXHIBIT "A"
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11 17650078.3
thoroughly investigated and analyzed the new
scope of services associated with
operation and maintenance of new particulate enclosures, an organics receiving building and organics pre-processing equipment, the construction, acceptance and operation of the new Covered Aerated Static Pile (CASP) composting system described in Articles 6 and 12 and Attachments F, G, H, J, N and T, and full scale rollout of the Commercial Food Scrap Collection program described in Attachment B. Based upon this experience, Contractor hereby enters into this 2022 Amendment with full knowledge concerning the conditions and circumstances encompassing the Contract, and the work to be performed by Contractor under the Contract.
2.09 Statements and Information in P
roposal. The Proposal submitted to
City by Contractor as part of t
he 2004 Request for Proposals process, and information
submitted to City supplementary thereto, does not contain any untrue statement of a material fact nor omit to state a material fact necessary in order to make the statements made, in light of the circumstances in which they were made, not misleading.
Contractor took no exceptions to the draft contract language contained in the RFP.
Contractor’s 2004 proposal is included in Attachment MM to the Initial Agreement.
EXHIBIT "A"
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ARTICLE 3. TERM OF AGREEMENT
3.01 Effective Date. The Effective Date
of this Contract shall be October 18,
2022. The Initial Agreement Ef
fective Date was January 14, 2005.
3.02 Term. The Term of the Contract is h
ereby extended to end at midnight on
December 31, 2031, unless earlier term
inated.
3.03 Conditions to Effectiveness of
Agreement.
A. Obligation of City to Perform. The obligation of the City to perfo rm
under this Contract is subject to sa
tisfaction, on or before the Effective Date, of each of the conditions set out below, each of which may be waived in whole or in part by City:
1. Accuracy of Representations. The rep
resentations and
warranties made by Contractor in Article 2 of this Contract shall be true and correct on
and as of the Effective Date.
2. Absence of Litigation. There shall
be no litigation pending
on the Effective Date in any court challengi
ng the execution of this Contract or seeking
to restrain or enjoin its performance.
3. Furnishing of Bond and Guaranty. Cont
ractor has furnished
the performance bond required by Section 11.03 and the guaranty required by Sectio n
14.18, each meeting the requirements of this Contract.
4. Furnishing of Evidence of Insurance. C
ontractor has
furnished satisfactory evidence of ins
urance required by Section 11.02.A.1 and
11.02.A.2.
EXHIBIT "A"
PROPOSED 2022 CONTRACT AMENDMENT
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13 17650078.3
5. Effectiveness of City’s Approv
al. The approval of this
Contract by City shall have become ef
fective, pursuant to California law, on or before
the Effective Date.
City may waive the satisfaction
of the conditions described in
Section 3.03.A.3 and 4, allow this Contract to become effective, and exercise its rights and remedies under this Contract for Contractor’s failure to furnish the bond, the guaranty, or the evidence of insurance.
B. Obligation of Contractor to Perform. T
he obligation of
Contractor to perform under this Cont
ract is subject to the satisfaction on or before the
Effective Date of both of the conditions set forth below, each of which may be waived in whole or in part by Contractor.
1. Absence of Litigation. There shall
be no litigation pending
on the Effective Date in any court challengi
ng the execution of this Contract, or seeking
to enjoin its performance.
2. Effectiveness of City's Approv
al. The approval of this
Contract by the City shall have become eff
ective, pursuant to California law.
C. Notice. If either party wishes to as
sert that a condition for its
benefit has not been satisfied and has no
t been waived, it must deliver written notice to
that effect to the other party on the Effective Date. If no such notice is received, the Contract will become effective on the Effective Date.
EXHIBIT "A"
PROPOSED 2022 CONTRACT AMENDMENT
(10/18/2022 VERSION)
14 17650078.3
Each party is obligated to perform in g
ood faith the actions, if any, which
this Contract requires it to perform before the Effective Date and to cooperate towards the satisfaction of the conditions set forth above.
EXHIBIT "A"
PROPOSED 2022 CONTRACT AMENDMENT
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15 17650078.3
ARTICLE 4. COLLECTION OF MUNICIPAL S
OLID WASTE, RECYCLABLE
MATERIALS AND COMPOSTABLES
4.01 Scope of Work – General. Contractor sh
all (a) collect Municipal Solid
Waste (“MSW”) generated at Residen
tial Premises, Commercial and Business
Establishments, City facilities and other events and locations within the City and deliver it to the Transfer Station or other disposal site approved by City, and (b) collect Recyclable Materials, Yard Trimmings, Food Scraps and other items specified in Attachments B-1 and B-2 placed for collection by participating Residential Customers, Commercial and Business Customers, City facilities and other events and locations within the City and deliver it to the Materials Diversion Facility.
The work to be done by Contractor includ
es the furnishing of all labor,
supervision, equipment, materials, supplies and all other items necessary to perform the services required in a thorough, workmanlike and efficient matter, so that residents, businesses and institutions within the City are provided reliable, courteous and high- quality services at all times. The enumeration of, and specification of requirements for, particular items of labor or equipment shall not relieve Contractor of the duty to furnish all others that may be required, whether enumerated or not.
Contractor shall perform all work in accordance with Attachments B-1 and B-2, all provisions of which are incorporated herein whether or not such provisions are specifically referred to in any other section of this Contract. In addition, to the extent that Contractor’s 2004 proposal includes promises to perform services in addition to, or at a higher standard of service than those required by the 2004 Request for Proposals, EXHIBIT "A"
PROPOSED 2022 CONTRACT AMENDMENT
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16 17650078.3
those promises are incorporated into this C
ontract and Contractor hereby ratifies its
agreement to perform as promised.
4.02 Implementation Plan. The parti
es recognized that significant planning
and preparation would be required to ensure a s
uccessful initiation of collection
operations by Contractor on October 1, 2005. To that end, Contractor’s proposal to City contained a detailed implementation plan including the tasks to be completed and a schedule for completion. The plan was successfully executed by Contractor, with coordination and oversight by City, in 2005 and 2006. The implementation plan was Attachment C-1 and C-2 to the 2004 contract and has been deleted by the 2018 Amendment. For the implementation of the 2018 and 2022 Amendment, Contractor will adhere to the implementation plan and replacement schedule outlined in Attachment C.
Contractor shall diligently adhere to th
e implementation plan and shall meet
periodically, whenever City requests, to review progress. Failure to adhere to the implementation plan, including its schedule, shall constitute a breach of this contract which, if uncured, shall constitute a default under Section 13.01.
4.03 Residential MSW Collection.
A. Regular Collections. Contractor shal
l collect all MSW generated
at Residential Premises within t
he City and placed for collection at curbside, and at
sideyard/backyard locations by occupants who are eligible for such collection under regulations adopted by City from time to time. MSW shall be collected from such Premises at the frequencies and in the manner described in Attachment B-1, Section 2.
EXHIBIT "A"
PROPOSED 2022 CONTRACT AMENDMENT
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17 17650078.3
4.04 Commercial/Business MSW Col
lection. Contractor shall collect all
MSW generated at Commercial and Busi
ness Establishments within the City and placed
for collection. MSW shall be collected from such Premises at the frequencies and in the manner described in Attachment B-1, Section 3.
4.05 City Sponsored Special Events. C
ontractor shall collect all MSW,
Recyclable Materials, and Compostable Ma
terials generated at Premises owned and/or
operated by the City and City shall be billed at the Commercial rates for these services as described in Article 8. Contractor shall provide collection services at up to twenty (20) City-sponsored events. The cost for this service is included in Contractor’s Operating and Capital Cost Payment.
4.06 Diversion Programs.
A. Residential Recycling. The Contractor s
hall collect Recyclable
Materials and commingled Yard Trim
mings/Food Scraps generated at participating
Residential Premises, placed for collection in authorized containers (to be provided by Contractor) at the curbside. Contractor shall also collect Recyclable Materials and commingled Yard Trimmings/Food Scraps generated at Residential Premises, placed for collection at backyard or sideyard locations by occupants who are eligible for backyard or sideyard collection under regulations adopted by the City from time to time.Recyclable Materials and commingled Yard Trimmings/Food Scraps shall be collected from Residential Premises at the frequencies and in the manner described in Attachment B-1, Section 2.
B. Commercial/Business Recycling. C
ontractor shall collect
Recyclable Materials and Yard Trimm
ings/Wood from participating Commercial and
EXHIBIT "A"
PROPOSED 2022 CONTRACT AMENDMENT
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18 17650078.3
Business Establishments at the
frequencies and in the manner described in Attachment
B-1, Section 3.03.
C. City Sponsored Special Events. Cont
ractor shall collect
Recyclable Materials and Yard Trimm
ings from Premises owned or operated by the City
and City shall be billed at the Commercial rates for these services as described in Article 8. Contractor shall collect Recyclable Materials and Food Scraps at up to twenty (20) City-sponsored events at the frequencies and in the manner described in Attachment B, Section 4.01 – 4.03. The cost for collection of Recyclable Materials and Food Scraps at City-sponsored events is included in Contractor’s Capital and Operating Cost payment.
D. Food Scrap Recycling. Contractor sh
all implement commingled
Yard Trimmings/Food Scrap collec
tion and diversion for Residential Customers as
provided in Attachment B-1, Section 2.03 - 2.03.3. Contractor shall provide Food Scrap collection and diversion for Commercial and Business Establishments as described in Attachment B-2, Section 3.08 – 3.08.3; and at City facilities and events as provided in Attachment B-1, Sections 4.01 and 4.02.
4.07 School District Facilities
MSW Collection and Recycling. In 2004, the
City entered into a Memorandum of Un
derstanding with the Napa Valley Unified School
District (“School District”) pursuant to which the School District is to receive MSW, Recyclable Materials, Yard Trimmings/Wood and Food Scrap collection services from Contractor, as well as certain entitlements to free use of the MDF. Contractor will furnish services to School District facilities as provided in, and will otherwise comply with, Attachment E.
EXHIBIT "A"
PROPOSED 2022 CONTRACT AMENDMENT
(10/18/2022 VERSION)
19 17650078.3
4.08 Other Services and Special Services
.
A. Other Services. Contractor shall provi
de other collection services
as requested by waste generators in the Ci
ty on an on-call basis, including drop box
service described in Attachment B, Section 3.09.
B. Special Services. Contractor shall pr
ovide the following special
services as described in Attachment
B, Section 5.
• Bulky Item Collections
• Semi-Annual Yard
Trimmings Cleanup
• Special Events Collections
• Collection and Recycling of Used Oil and Used Oil Filters at Residences
• Holiday Greenery Collection and Recycling
• Recycle More Collection Services including but not limited to, Electronic Waste Collection and Recycling
4.09 Hours of Collection. Collection of
MSW, Recyclable Materials and/or
Yard Trimmings may occur only withi
n hours authorized by the City. Contractor may not
collect MSW, Recyclable Materials, Food Scraps or Yard Trimmings earlier than 6:00 a.m. local time or later than sunset, except that collections in commercial districts at Premises that are at least 100 feet from Residential Premises may begin at 4 a.m. If noise and/or nuisance issues are occurring as a result of the collection(s), then City will notify Contractor, and Contractor shall make good faith efforts to reroute collection at the designated location(s) to occur after 6:00 a.m., and/or make other accommodations to avoid or minimize noise and/or nuisance issues at the designated location(s).
EXHIBIT "A"
PROPOSED 2022 CONTRACT AMENDMENT
(10/18/2022 VERSION)
20 17650078.3
Collection at certain School Distri
ct sites may occur only between 6 a.m. and
8 a.m., as provided in Attachment E.
4.10 Collection Standards.
A. Care of Private Property. Contract
or shall use due care when
handling solid waste, Food Scrap, Yard Tr
immings and recycling containers.
Containers shall not be thrown from trucks, roughly handled, damaged or broken.
Containers shall be returned to the collection point upright, with lids properly closed.
Contractor shall ensure that its empl
oyees close all gates opened by them
in making collections, unless otherwise directed by the Customer, and avoid crossing landscaped areas and climbing or jumping over hedges and fences.
City shall refer complaints about damage to private property, including common areas in common-area subdivisions, to Contractor. Contractor shall promptly repair, or arrange for the repair of, all damage to private property caused by its employees.
B. Noise . All collection operations sh
all be conducted as quietly as
possible and shall conform to any federal
, state, County and City noise level
regulations. The noise level during the stationary compaction process shall not exceed 75 decibels at a distance of 25 feet from the collection vehicle. The City may conduct random checks of noise emission levels to ensure such compliance.
4.11 Litter Abatement.
A. Minimization of Spills. Contractor s
hall use due care to prevent
MSW, Recyclable Material, Food Scr
aps or Yard Trimmings from being spilled or
EXHIBIT "A"
PROPOSED 2022 CONTRACT AMENDMENT
(10/18/2022 VERSION)
21 17650078.3
scattered during the collection or tr
ansportation process. If any MSW, Recyclable
Material, Food Scraps or Yard Trimmings are spilled, Contractor shall promptly clean up all spilled materials whether on private or public property. Each collection vehicle shall carry a broom and shovel at all times for this purpose.
Contractor shall not transfer loads from one vehicle to another on any public street or private roadway, unless it is necessary to do so because of mechanical failure or damage to a collection vehicle which renders it inoperable.
B. Clean Up. The Contractor shall clean up l
itter in the immediate
vicinity of any MSW, Recyclable M
aterials, Food Scraps or Yard Trimmings storage
area (including the areas where collection containers or bins and debris boxes are delivered for collection) whether or not Contractor has caused the litter. Contractor shall notify the Customer and the City after the second occurrence. City will require the Customer to accept and pay for increased service (i.e., a larger bin or more frequent collections) or direct Contractor to bill the Customer for any additional clean ups required, at rates established by City, or both.
C. Clean Up of Illegal Dumping. Contrac
tor shall respond to all calls
from City regarding spilled or ill
egally dumped MSW, Recyclable Materials, Food
Scraps, Yard Trimmings or Bulky Items during regular work hours and, in emergencies, at night and on weekends. Contractor shall collect and deliver such material to the Transfer Station (or, in the case of Recyclable Materials, Food Scraps and Yard Trimmings, to the Materials Diversion Facility) provided such material does not exceed in volume the amount which can be collected by a two-person crew utilizing a pick up truck or collection vehicle.
EXHIBIT "A"
PROPOSED 2022 CONTRACT AMENDMENT
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22 17650078.3
D. Covering of Loads. Contractor shall place c
overs on all open
debris boxes during transport to the Tra
nsfer Station or Materials Diversion Facility and,
if required by City’s Storm Water Best Management Practices, while in use by Customers.
4.12 Hazardous Waste
A. General. Contractor shall be aware of,
and comply with, all laws
and regulations relating to the handling an
d transportation of Hazardous Wastes and
hazardous materials, including those regarding training and documentation. If Contractor observes any substances which it believes to contain Hazardous Waste within the City, including but not limited to in containers designed for MSW, Recyclable Materials, Food Scraps and Yard Trimmings, Contractor shall not collect such Hazardous Waste but shall immediately notify the appropriate regulatory agencies and the City. The preceding sentence does not apply to the collection of Electronic Waste components that are classified as Hazardous Waste (currently CRTs and LCDs) or used oil and oil filters pursuant to this Contract.
B. Notice to Customers. Contractor sh
all notify all Customers at
least once a year of (i) the prohibiti
on against the set out and delivery to Contractor of
Hazardous Waste and (ii) the obligation of each Customer to provide for the proper handling and disposition of Hazardous Waste. To the extent that Contractor has actual knowledge of the existence of such Hazardous Waste in a container placed for collection, Contractor shall not collect such container. Contractor shall, prior to leaving the location where such Hazardous Waste has been observed, leave a tag at least 2” x EXHIBIT "A"
PROPOSED 2022 CONTRACT AMENDMENT
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23 17650078.3
6” which informs the customer why the col
lection was not made and lists the telephone
number for the Napa County Department of Environmental Management.
C. Contractor to Segregate and Dispo
se. In the event Contractor
inadvertently collects any Hazardous W
aste and during the course of transportation and
disposition becomes actually aware that it has collected such Hazardous Waste, Contractor shall segregate Hazardous Waste, and shall arrange for its transport and disposal to a properly permitted recycling, treatment or disposal facility of Contractor’s choosing. Contractor shall be solely responsible for the transport and disposition of all Hazardous Waste that is collected by the Contractor. Contractor will cooperate with City attempts to locate and collect from the responsible Customer.
D. Operating Procedures and Employ
ee Training. Contractor shall
establish, implement and maintain wri
tten operating procedures designed to ensure
Contractor’s utilization of techniques generally accepted in the waste hauling industry for cities of the size and nature of the City of Napa, to handle and dispose of Hazardous Waste and its compliance with the provisions of this Section
4.12. Contractor shall
establish, i
mplement and maintain an employee training program and shall ensure that employees responsible for the identification of Hazardous Waste are fully trained.
Contractor shall maintain documentation which describes the training received by its employees.
E. Household Hazardous Waste. City shall p
articipate with
appropriate regulatory and governmental agenci
es for the collection and proper disposal
of Household Hazardous Waste generated within the City, but nothing in this Contract shall be construed as requiring the City (or, except as otherwise provided for herein, the EXHIBIT "A"
PROPOSED 2022 CONTRACT AMENDMENT
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24 17650078.3
Contractor) to establish a specific progr
am or to expend a specific amount of funds for
such purpose.
4.13 City's Right to Change Scope of Wor
k. City may, without amending this
Contract, direct Contractor to c
ease performing one or more of the types of services
described in the Contract, may direct Contractor to modify the scope of one or more of such services, may direct Contractor to perform additional collection service, and may similarly modify Contractor’s obligations under other provisions of this Contract.
The types of changes that City may direc
t include, but are not limited to,
increases or decreases in the number of routes for collection of specific materials, changes in the types of Recyclable Materials to be collected as the wastestream changes, addition of new diversion programs, modification, expansion, cessation of specific programs, pilot programs, use of new technology, innovative services, new collection methods, different types of services and/or new requirements for Customers.
If such changes cause an increase or decrease in the cost of performing the services, an equitable adjustment in the Contractor’s compensation shall be made. The method for determining the amount of such an adjustment shall be as set forth in Section 12.13. Contractor will continue to perform the new or changed service while the appropriate adjustment in compensation is being determined.
EXHIBIT "A"
PROPOSED 2022 CONTRACT AMENDMENT
(10/18/2022 VERSION)
25 17650078.3
ARTICLE 5. TRANSPORTATION OF M
ATERIALS
5.01 Transportation and Disposal of MSW. Con
tractor shall transport and
deliver all MSW collected pursuant t
o this Contract to the Transfer Station, or to such
other disposal site designated by the City.
Contractor shall cooperate with the oper
ator(s) of the Transfer Station with
regard to operations therein, including by way of example, complying with directions from the operator to unload collection vehicles in designated areas, accommodating to maintenance operations and construction of new facilities, cooperating with the operator’s hazardous waste exclusion program, and cooperating with the operator’s tonnage tracking system.
5.02 Transportation of Recyclable Ma
terials, Yard Trimmings, Co-
Collected Yard Trimmings/Food Scra
ps, Source-Separated Food Scraps and
Source-Separated Construction and De
molition Debris. Contractor shall transport
and deliver all Recyclable Materials,
Yard Trimmings, Co-Collected Yard
Trimmings/Food Scraps, all Source-Separated Food Scraps and all Source-Separated Construction and Demolition Debris to the Materials Diversion Facility unless otherwise directed by City.
5.03 Transportation of Mixed Constructi
on and Demolition Debris.
Contractor shall transport and deliver all
mixed Construction and Demolition Debris to the
Transfer Station for processing unless otherwise directed by City.
5.04 Transportation of Processed Rec
yclables and Compost. Contractor
shall transport and deliver all Recovered M
aterials processed at the Materials Diversion
Facility and all compost produced at the Materials Diversion Facility to a purchaser or a EXHIBIT "A"
PROPOSED 2022 CONTRACT AMENDMENT
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26 17650078.3
Person who will use the materials in a proc
ess or product, such that the City and
Participating Agencies will receive credit for Diversion under the Act.
5.04.1 Transportation of Compost Over
s to Potrero Hills Landfill.
Contractor shall transport Compost O
vers to the Potrero Hills Landfill, or other landfill
pre-approved in writing by the City in its sole discretion, for use as Alternative Daily Cover as described in Attachment B-3. City reserves the right to direct Contractor to cease delivery of Compost Overs to the Potrero Hills Landfill or to redirect this material to another facility at any time.
5.05 Transportation of Residue. Unless ot
herwise directed by City, all
Residue (i.e. materials which cannot
be diverted) will be transported from the Materials
Diversion Facility to the Transfer Station, with the following exception:
5.06 Transportation of Compostable Mate
rials to Zamora Compost
Facility. As approved by the City, Contr
actor shall transport a portion of Compostable
Materials delivered to the Napa MDF to t
he Zamora Compost Facility located in Yolo
County, or other compost facility pre-approved in writing by the City in its sole discretion, and shall compost said materials at that facility as further described in Attachment B-3. City reserves the right to direct Contractor to cease transportation of all or a portion of the Compostable Materials from the MDF to the Zamora Facility, and to direct Contractor to cease processing of such materials at the Zamora Facility, at any time.
5.07 Transportation of Hazardous Mater
ials. If Contractor encounters at the
Materials Diversion Facility, any
Hazardous Materials which cannot be accepted at the
EXHIBIT "A"
PROPOSED 2022 CONTRACT AMENDMENT
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27 17650078.3
Transfer Station, it shall arrange
for their transport and disposal to a properly permitted recycling, treatment or disposal facility of Contractor’s choosing.
5.08 General. Contractor shall use due car
e to prevent Residue, Compostable
Materials or Recovered Materials fr
om being spilled or scattered during transport from
the Materials Diversion Facility. All vehicles hauling materials from the Materials Diversion Facility shall be enclosed or have other appropriate covering as approved by City. If any Residue, Compostable Materials or Recyclable Materials are spilled, Contractor shall immediately clean up all spilled materials, whether on private or public property.
No Recyclable Materials, Food Scraps
or Yard Trimmings which have been
delivered to the Materials Diversion Facility already separated, and no materials which have been processed at the Materials Diversion Facility for Recycling, may be disposed of (1) on land, or (2) through Transformation, without the prior written consent of City.
Processed Yard Trimmings (compost) shall not be used for Alternative Daily Cover at solid waste landfills without City’s prior written consent.
No materials of any kind may be disposed of on land at any location other than by delivery to the Transfer Station. No materials of any kind may be disposed of in water or in the atmosphere.
EXHIBIT "A"
PROPOSED 2022 CONTRACT AMENDMENT
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28 17650078.3
ARTICLE 6. OPERATION OF MATERIA
LS DIVERSION FACILITY
6.01 Scope of Work – General. Contractor s
hall arrange for the design,
furnishing and installation of new proces
sing equipment as described in Attachment F,
Sections 2 and 3. Contractor shall accept, process and arrange for Diversion of materials described in Attachment F that are delivered to the Materials Diversion Facility.
The work to be done by Contractor includ
es the furnishing of all labor,
supervision, equipment, materials, supplies and all other items necessary to perform the services required in a thorough, workmanlike and efficient matter. The enumeration of, and specification of requirements for, particular items of labor or equipment shall not relieve Contractor of the duty to furnish all others that may be required, whether enumerated or not.
Contractor shall perform all work in accordance with Attachment F, all provisions of which are incorporated herein whether or not such provisions are specifically referred to in any other section of this Contract. In addition, to the extent that Contractor’s 2004 proposal included promises to perform services in addition to, or at a higher standard of service than those required by the 2004 Request for Proposals, those promises are incorporated into this Contract and Contractor hereby ratifies its agreement to perform as promised.
Contractor shall comply with all MDF Operating Regulations as set forth in Attachment EE, which may be revised from time to time by the City.
EXHIBIT "A"
PROPOSED 2022 CONTRACT AMENDMENT
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29 17650078.3
6.02 Implementation Plan. The parti
es recognize that substantial planning
and preparation will be required to ensure an
orderly upgrade and refurbishment of
Materials Diversion Facility processing equipment and operations by Contractor. To that end, Contractor has prepared a detailed implementation plan addressing the steps Contractor will take, and the schedule on which it will take them, for continued processing and operations of Materials Diversion Facility. The implementation plan is attached as Attachment C-2 and includes:
• Design and layout of new and refurbished pro
cessing equipment;
• Procurement of new and refurbished processing equipment; • Securing of government approvals, as necessary to allow for installation and operation of new equipment;
• Installation and testing of processing equipment;
• Procurement of mobile equipment, materials and supplies; • Hiring and training personnel; and
• Submission of the health and safety plan, the sampling and analysis plan, and the Hazardous Waste Exclusion Plan required by Attachment F.
Contractor shall diligently adhere to the implementation plan and shall meet periodically, at City’s request, to review progress. Failure to adhere to the implementation plan, including its schedule, shall constitute a breach of this Contract which, if uncured, shall constitute a default under Section 13.01.
The specific plans and other materials required to be submitted by the implementation plan are subject to City’s review and approval. City will take actions, make decisions, and provide directions to Contractor in accordance with the schedule and time allowances set forth in Attachment C-2, so as not to delay Contractor’s adherence to the implementation plan schedule.
EXHIBIT "A"
PROPOSED 2022 CONTRACT AMENDMENT
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30 17650078.3
6.03 Receipt of Recyclable Materials/Co
mpostables. Contractor shall accept
for processing materials delivered to
the Materials Diversion Facility by (1) Contractor,
(2) the County and its Designated Hauler, (3) the other Participating Agencies and their Designated Haulers, (4) residents of and businesses operating within the City or within the other Participating Agencies, (5) entities with which the City has entered into a contract for use of the Materials Diversion Facility, and (6) any other materials delivered to the Materials Diversion Facility by the public, private businesses, other haulers and other public agencies.
City may at any time, and from tim
e to time, require Contractor to accept for
processing materials delivered from outside the Primary Service Area. Unless and until it does so, however, Contractor shall not accept any materials which originate outside the Primary Service Area. City has no obligation to Contractor to allow materials from outside the Primary Service Area to be accepted at the Materials Diversion Facility.
Acceptance of materials from outside the Primary Service Area shall, if allowed by City, never be permitted to interfere with processing of materials delivered by or on behalf of the Participating Agencies or their Designated Haulers. To that end, and by way of example and not limitation, City may direct that materials from outside the Primary Service Area not be accepted during peak hours. Vehicles carrying materials from outside the Primary Service Area shall be refused entry during such periods.
Contractor may use the Materials Diversion Facility only for the receipt and processing of materials delivered by Persons described in this section and for storage, maintenance and repair of vehicles and equipment used in collection of MSW from within the City (and within Zone 1 of Napa County if Contractor is also the County’s EXHIBIT "A"
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/18/2022 VERSION)
31 17650078.3
Designated Hauler and City approves such use)
and for activities directly related to and
directly supportive of these operations. Contractor may not use the Materials Diversion Facility, or permit it to be used, for any other purpose without City’s prior written consent, which may be granted or withheld in City’s sole discretion.
6.04 Receipt and Processing of Material
s From Transfer Station.
A. Acceptance of Materials. Contractor shall
accept for processing
the following materials delivered fr
om the Transfer Station pursuant to the City-Northern
Agreement in Attachment AA: (a) Yard Trimmings, (b) Co-Collected Food Scraps, Soiled Paper Products and Yard Trimmings, (c) Recyclable Materials and (d) DRTS New Materials.
B. Materials Diversion Facility Pro
cessing Areas. Compostables
(including Yard Trimmings, Food Scr
aps, Soiled Paper Products and Yard Trimmings,
Co-Collected Food Scraps, Soiled Paper Products and other organic materials suitable for composting) will be delivered to the Composting Area. The following materials will be delivered to the Clean MRF: Pre-Processed, Baler-Ready Recyclable Materials; Pre- Processed, Market-Ready Recyclable Materials (including carpet underpadding); DRTS Pre-Sorted Mixed Recyclable Materials; and DRTS New Materials.
C. Eligibility For Additional Payment. C
ompostables delivered from
the Transfer Station and DRTS Pre
-Sorted Mixed Recyclable Materials (including DRTS
Pre-Sorted Mixed Recyclable Materials delivered under emergency circumstances as described in Attachment AA) will be included in the tonnage used to calculate Contractor’s eligibility for an Additional Payment under Section
12.05, and the amount
of any such Addition
al Payment. The following materials delivered from the Transfer EXHIBIT "A"
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32 17650078.3
Station to the Clean MRF will not be i
ncluded in the tonnage used to calculate
Contractor’s eligibility for an Additional Payment under Section 12.05, nor the amount of any such payment: Pre-Processed, Baler-Ready Recyclable Materials; Pre-Processed, Market-Ready Recyclable Materials; and DRTS New Materials.
D. Effect on Maximum Capacity of Clean
MRF. Delivery of the
following materials from the Tr
ansfer Station to the Clean MRF will reduce the Maximum Capacity of the Clean MRF and Contractor’s obligation to provide processing capacity is accordingly reduced: Pre-Processed, Baler-Ready Recyclable Materials; Pre- Processed, Market-Ready Recyclable Materials; and DRTS New Materials. For example, if 1,500 Tons of Pre-Processed, Baler-Ready Recyclable Materials, Pre- Processed, Market-Ready Recyclable Materials and DRTS New Materials are delivered from the Transfer Station in a given calendar year, the Tons will not be included in the calculations used in determining Contractor’s eligibility for the Additional Payment for that year, but the Maximum Capacity of the Clean MRF for that year will be reduced from 46,800 Tons to 45,300 Tons.
E. Characterization of the Material
s. The quantity of DRTS Pre-
Sorted Mixed Recyclable Materials
delivered by Northern from the DRTS to the
Materials Diversion Facility is not to exceed ten percent (10%) of the total Tons delivered by Northern in a single calendar year and residue in these materials is not to exceed one percent (1%). A characterization of the DRTS Pre-Sorted Mixed Recyclable Materials will be conducted by the City using labor provided by Contractor pursuant to Attachment F, Section 6.8. The City will provide independent oversight of the sort using City employees, independent contractors, or agents of City to determine the “Average EXHIBIT "A"
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Per Ton Market Value” of the material (
as described in Attachment Six of the Northern
Agreement in Attachment AA) and the percent residue remaining after the material is sorted. The City shall prescribe the sampling technique and protocol, the size and number of samples, the sorting methodology, the method for weighing sorted materials, the method for inputting the data and the protocol used to calculate the following: (a) the percent of each material in the mix; (b) the Quarterly Average Materials Revenue Received for each type of material in the mix, and (c) the percent residue. The City envisions that the characterization will be conducted by collecting samples of the mixed materials in sample boxes and manually sorting the material such that the sorting belts at the Materials Diversion Facility are not impacted. The City reserves the right to change the sampling methodology and protocol, and also to utilize or substitute any sorting labor it chooses (including but not limited to City forces, third parties, independent contractors, interns and other agents of the City) to conduct the characterization. Once the “Average Per Ton Market Value” of the material mix is established, additional characterizations may be conducted at frequencies determined at the sole discretion of the City. Contractor will cooperate fully with City in conducting all characterizations of DRTS Pre-Sorted Recyclable Materials. If Contractor has already performed the characterizations required by Attachment F, Section 6.8 for other City-directed purposes, City may conduct additional characterizations using non- Contractor labor, or may compensate Contractor for performing additional characterizations. The number of Tons of material delivered from the Transfer Station will be based solely on MDF scalehouse records.
EXHIBIT "A"
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34 17650078.3
F. Contractor Cooperation Regarding Nort
hern Agreement.
Additional terms related to the proc
essing, delivery and pricing of Yardwaste (as defined
in Northern Agreement) and Pre-Processed, Baler-Ready Recyclable Materials, Pre- Processed, Market-Ready Recyclable Materials, DRTS Pre-Sorted Mixed Recyclable Materials and DRTS New Materials are contained in the agreement between the City and Northern in Attachment AA. Contractor will cooperate with City and Northern to accomplish the purpose of that agreement. Contractor and Affiliated Entities will not employ any artifice, business structure or other stratagem to circumvent or undermine the spirit and purpose of this Contract or the spirit and purpose of the City-Northern agreement. Nothing in the City-Northern agreement is intended to relieve Contractor of its duties and responsibilities described in this Contract to market the Materials Diversion Facility and to encourage new and repeat customers to bring materials directly to the Materials Diversion Facility.
6.05 Use of Personnel and Equipment. Cont
ractor will not permit Northern or
any other Affiliated Entity to use any
of Contractor’s equipment or personnel to deliver
Compostables or Pre-Processed, Baler-Ready Recyclable Materials, Pre-Processed, Market-Ready Recyclable Materials, DRTS Pre-Sorted Mixed Recyclable Materials, DRTS New Materials or any other materials from the DRTS to the Materials Diversion Facility. Contractor and all Affiliated Entities (including Northern) agree not to install, provide, lease or operate a high capacity baler that is capable of creating export bales within a five (5) mile radius of the entrance to the Materials Diversion Facility. The five (5) mile radius is shown on the map in Attachment BB. Contractor and Affiliated Entities may, for other business purposes, install, provide, lease and operate small balers, EXHIBIT "A"
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35 17650078.3
which are limited to a vertical “downs
troke” type of baler with a single ram and that
would produce bales not exceeding 800 pounds each (assuming corrugated cardboard is the material being baled), at private businesses as long as all of the following conditions are met:
A. Materials Delivered to Materials Di
version Facility. All of the
Recyclable Materials and all other ma
terials baled are directly delivered to the Materials
Diversion Facility for final marketing.
B. NCRWS Baled Materials. If the baled mater
ials are delivered to
the Materials Diversion Facility by
NCRWS or its subcontractor, pursuant to NCRWS’s
collection contract with the County of Napa, the Tons of such baled materials shall be delivered to the Clean MRF area for processing and shall be included in the tonnage used to calculate Contractor’s eligibility for the Additional Payment under Section
12.05 and to calculate the amount of any suc
h payment. The pricing contained in the City’s
Memorandum of Understanding with the County of Napa dated May 3, 2005 (City Agreement No 8782, County of Napa Agreement No 6430) as amended July 21, 2015 and December 19, 2017, shall apply to this baled material.
C. No Baling of Committed Material
s. The baler(s) are not used to
bale any materials committed to be del
ivered by Northern from the Transfer Station to
the Materials Diversion Facility pursuant to the agreement between the City and Northern in Attachment AA.
D. No Baling of DRTS New Materials. T
he baler(s) are not used to
bale any DRTS New Materials as defined
in Attachment A and in the City’s Agreement
with Northern in Attachment AA.
EXHIBIT "A"
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36 17650078.3
E. Balers Not To Be Used to Circumve
nt Agreements. The
baler(s) are not used to in any way to cir
cumvent, undermine or defeat the purpose of
this Contract or the agreement between the City and Northern in Attachment AA.
Attachment CC contains a list submi
tted by Contractor in 2018 of the small
balers installed or operated by Affiliated Entities at private businesses within a five (5) mile radius of the entrance to the Materials Diversion Facility . Contractor shall update the list and submit a new list to City on July 1, October 1, January 1 and April 1 of each year of the Term. Contractor will submit the list even if there have been no additions or deletions to the list since the last submittal.
Contractor shall make the decision as to whether to re-bale any baled materials received at the Materials Diversion Facility or to market the baled material directly. Contractor shall make reasonable business efforts and act in good faith to maximize the revenue from the sale of such material.
6.06 Guaranteed Additional Composta
bles. Contractor shall secure and
guarantee delivery of an additional 30,
000 Tons of Compostables per year beginning in
calendar year 2018 and continuing for the duration of the Contract. These additional Compostables will be measured by inbound tonnage over and above an annual Compostables of 40,680 Tons per calendar year, so the guarantee will thus be 70,680 inbound Tons per calendar year. Failure of Contractor to deliver the minimum 70,680 Tons of Compostables will result in a financial penalty to the Contractor of $15 per Ton (as indexed annually from Year 2 (2019) through Year 5 (2022) by 2.5% and beginning Year 6 (2023) by Price Index CUURA422SA0L1E – All Urban Customers) for each Ton under the 70,680 Tons guarantee beginning in calendar year 2018 and continuing for EXHIBIT "A"
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37 17650078.3
the duration of the Contract. Both
City and Contractor recognize that permit limitations
imposed by regulatory agencies such as the Bay Area Air Quality Management District on the Materials Diversion Facility may limit the maximum amount of Compostables that may be received and composted on site at the Materials Diversion Facility. To the extent that Contractor is limited by regulatory permit limits, the City agrees not to apply the $15 per Ton (as adjusted) financial penalty unless the amount of Compostables received at the Material Diversion Facility falls under 95 percent of the maximum allowable tonnage for composting processing area. For example, if the Materials Diversion Facility’s air permit only allows for a maximum 65,000 Tons of Compostables to be received and processed in a calendar year, Contractor will not be subject to the penalty unless the annual inbound Compostables tonnage fell below 61,750 tons.
While the City retains sole final authority to establish gate fees for the Materials Diversion Facility (as described in Section 14.21 of this Contract), the City agrees to meet and confer with Contractor prior to establishing any increase to the self-haul public or contractual users of Materials Diversion Facility that exceeds 3% in a given calendar year.
6.07 Days and Hours of Operation. Contr
actor shall operate the Materials
Diversion Facility every day of the year
except New Year’s Day, Easter Sunday,
Thanksgiving and Christmas Day (“the holidays”). Minimum and maximum hours of operation are set out in Attachment F, Section 2.6.
6.08 Installation of New Processi
ng Equipment. Contractor shall arrange for
the equipment listed on Attachments
M-2 and M-3 to be installed in the Materials
Diversion Facility by an appropriately licensed California contractor. Although the City EXHIBIT "A"
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38 17650078.3
believes that, as a charter city, it
is exempt from certain provisions of state statutes
governing the contracting requirements for general law cities, unless the City approves an exception (pursuant to Attachment F, Section 8.1 of this Agreement), the contract between Contractor and the installation contractor shall be subject to all provisions of California law applicable to public works contained in the Public Contract Code and Labor Code, including the requirement that the installation contractor pay workers prevailing wages as determined by the California Department of Industrial Relations (DIR). City has received a DIR determination of such wages. The contract shall require the installation contractor to carry at least $2 million in general liability insurance and to name Contractor and City as additional insureds.
Prior to January 1, 2023, Contractor shall arrange for new equipment installed by or for it in the Materials Diversion Facility to be tested as necessary to demonstrate that such equipment functions properly, has been installed in accordance with manufacturers’ specifications, and meets performance standards included in contracts between Contractor and the manufacturer/vendor/installation contractor. Contractor will not accept such equipment until it is satisfied that the requirements of this paragraph are met and will provide City a written assurance that they have been met prior to acceptance.
Upon acceptance, Contractor will provide City a copy of all warranties and O&M manuals applicable to the installed equipment.
Upon acceptance of the installed equipment, Contractor will perform the overall Facility acceptance testing as described in Attachment H.
EXHIBIT "A"
PROPOSED 2022 CONTRACT AMENDMENT
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39 17650078.3
Contractor will own the equipment install
ed, subject to City’s right to purchase
provided in Section 7.05.
6.09 Materials Diversion Operation
s. Contractor will conduct the following
operations at the Materials Diversion F
acility:
• Clean Materials Recovery Facility;
• composting;
• wood processing;
• source separated construction and demolit
ion debris processing.
Contractor will conduct each of these o
perations, and others identified in
Attachment F, as described in Attachment F.
6.10 Permits. City and Contractor shall c
omply with the terms of all permits
and approvals from governmental agencies
applicable to the Materials Diversion
Facility, including those listed on Attachment G.
If new operating permits and approvals (or
amendments to the permits and
approvals obtained by City) become necessary, by virtue of Contractor’s operations, it will be the responsibility of Contractor and City to obtain them. City will assist the Contractor in obtaining them provided that the operations which give rise to the need for them are in compliance with this Contract and in the best interests of City, in City’s judgment. Contractor shall apply for permits in its own name or in the name of the City (or both), as directed by the City from time to time. Contractor shall submit a draft of all applications for operating permits (and for subsequent renewals or modifications thereof) to the City for its review and approval prior to filing an application with the permitting agency. Contractor shall keep the City fully informed at all times on the EXHIBIT "A"
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40 17650078.3
status of all permit applications
, including meetings with agency staff and hearings on
permit applications before the agency’s governing board. Contractor shall not agree to permit terms or conditions on any permit without the prior written consent of the City.
Copies of all permits issued in Contractor’s name and originals of all permits issued in the City’s name (and any renewals or amendments) shall be delivered to the City promptly, and in any case within five (5) working days of their receipt by Contractor.
Contractor shall keep all licenses, permits and approvals governing the Materials Diversion Facility in force and shall comply with their terms, including any which may require improvements or modifications in operating procedures.
The City will be responsible for all costs associated with obtaining new or modified current permits and any new annual fees that are not already part of existing permit or regulatory fees applicable to the MDF at the time of the 2021 Contract Amendment. Contractor shall be solely responsible for paying any fines or penalties imposed by governmental agencies for Contractor’s noncompliance with any permit terms or its failure to obtain necessary permits.
6.11 Delivery of Residue to Transfer S
tation. Contractor shall deliver all
non-recyclable and non-compostable Residue
from the operations at the Materials
Diversion Facility to the Transfer Station. If Contractor identifies a potential non-disposal beneficial use of Residue, Contractor will provide all relevant information to the City in order to make an informed decision about redirecting such Residue materials to an alternate, fully permitted facility or use. Contractor shall not deliver Residue, or any identified portion of Residue, to a facility other than the Transfer Station without prior written permission from the City.
EXHIBIT "A"
PROPOSED 2022 CONTRACT AMENDMENT
(10/18/2022 VERSION)
41 17650078.3
6.12 Hazardous Materials
A. Handling of Hazardous Materials.
Contractor shall not cause or
permit any Hazardous Material to be gener
ated, brought onto, used or stored on, under
or about the Materials Diversion Facility by Contractor or its agents, employees, contractors, or invitees, except for (a) limited quantities of standard office and janitorial supplies containing chemicals categorized as Hazardous Material, (b) paint and solvents used in painting Contractor vehicles, (c) lubricants and other substances used in maintenance and repair of Contractor vehicles, (d) de minimus amounts of Household Hazardous Waste and used oil and oil filters collected by Contractor from within the City, (e) electronic waste delivered by City and County residents, and (f) freon and mercury switches contained in Bulky Goods delivered to the Materials Diversion Facility.
All such items shall be properly handled and disposed of.
B. Notice of Release or Investigatio
n. If either party becomes
aware of (a) any actual or threatened release o
f any Hazardous Material on, under, or
about the Materials Diversion Facility or (b) any inquiry, investigation, proceeding, or claim by any government agency or other person regarding the presence of Hazardous Material on, under, or about the Materials Division Facility, such party shall give the other party written notice of the release or investigation within five (5) days after learning of it and shall simultaneously furnish to the other party copies of any claims, notice of violation, reports, or other writings prepared or received by that party that concern the release or investigation.
C. Indemnification. Except for t
he City’s unlawful misconduct or sole
negligence, Contractor shall indemnify
, defend, and hold harmless City, along with its
EXHIBIT "A"
PROPOSED 2022 CONTRACT AMENDMENT
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42 17650078.3
City Council, officers, agents,
and employees, with respect to all losses arising out of or resulting from the release of any Hazardous Material on, under or about the Materials Diversion Facility or the violation of any Environmental Law by Contractor, its agents, employees, contractors, or invitees after October 1, 2005 and before the expiration of the term of this Agreement. This indemnification includes, without limitation: (a) losses attributable to diminution in the value of the Materials Diversion Facility; (b) all other liabilities, obligations, penalties, fines, claims, actions (including remedial or enforcement actions of any kind and administrative or judicial proceedings, orders, or judgments), damages (including consequential and punitive damages), and costs (including attorney, consultant, and expert fees and expenses) resulting from the release or violation. This indemnification shall survive the expiration or termination of this Agreement for a period of three (3) years.
D. Remediation Obligations. If the pres
ence of any Hazardous
Material results in contamination
of the Materials Diversion Facility, Contractor shall
promptly take all necessary actions to remove or remediate such Hazardous Material, consistent with any order or decree issued by any regulatory agency having jurisdiction over the Materials Diversion Facility. This provision does not limit the indemnification set forth in Section
6.12.C.
6.13 Hazardous Waste Exclusion Pr
ogram. Contractor shall, upon
commencement of operations at the Mater
ials Diversion Facility, implement a
Hazardous Waste Exclusion Program (“HWEP”) in a diligent, reasonable and non- discriminatory manner. If CalRecycle or the California EPA require additional measures to be incorporated into the HWEP, Contractor shall comply with such additional EXHIBIT "A"
PROPOSED 2022 CONTRACT AMENDMENT
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43 17650078.3
measures. Contractor shall tempor
arily store materials discovered through the HWEP
(or otherwise) that cannot be processed at the Materials Diversion Facility or accepted at the Transfer Station in the appropriate storage areas provided at the Materials Diversion Facility for this purpose. Contractor shall arrange and pay for the safe and lawful disposal of such waste.
The operator of the Transfer Station is required to conduct its own independent HWEP which will entail checking of loads delivered from the Materials Diversion Facility by Contractor. If the operator of the Transfer Station rejects material delivered to the Transfer Station, Contractor shall remove and dispose of it in a safe and lawful manner, at its sole expense. Contractor shall also be solely responsible for reimbursing the Transfer Station operator for costs of testing and disposal of waste which the Transfer Station operator initially accepts but subsequently discovers may not be legally disposed of at the Disposal Facility, to the extent that such reimbursement is required by the contract between the City and the operator of the Transfer Station.
All Hazardous Waste which is transported from the Materials Diversion Facility shall be transported by Department of Toxic Substances Control registered hazardous waste haulers which have been determined by Contractor to meet the training, financial responsibility and other requirements of the Health and Safety Code. Contractor shall complete, provide to the hauler, and maintain copies of applicable hazardous waste manifests for all Hazardous Waste transported from the Materials Diversion Facility, as required by applicable laws and regulations.
Contractor shall furnish monthly a report showing the amount of each type of Hazardous Waste delivered from each of the Participating Agencies, separately by EXHIBIT "A"
PROPOSED 2022 CONTRACT AMENDMENT
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44 17650078.3
jurisdiction, the amount recycled, t
he amount incinerated, and the amount disposed,
including the name and address of the Disposal Site.
6.14 Other Operating Procedures and
Standards. In addition to the
foregoing, Contractor shall conduct it
s operations in accordance with the requirements
of CalRecycle (currently codified at 14 California Code of Regulations Division 7) and as they may be amended or superseded, and with the procedures and standards in Attachment F.
6.15 Modifications. Contractor may not
make any modifications to the
Materials Diversion Facility w
ithout first obtaining City’s written consent, which City may grant or withhold in its sole discretion, as further described in Attachment F. As a condition to its consent to modifications, City may impose any requirements it considers desirable, including a requirement that Contractor provide plans and specifications for the proposed modifications, comply with laws and insurance requirements, employ contractors approved by (or selected by) City, and provide City with a surety bond, letter of credit or other financial assurance that the cost of the modifications will be paid when due.
6.16 Utilities. Contractor will be responsi
ble for the cost of all utilities provided
to the Materials Diversion Facilit
y including but not limited to water, sewer, and janitorial services. Until or unless the City takes over electricity utility charges directly, Contractor will pay for electricity charges with an estimated monthly reimbursement from the City to be reconciled on an annual basis with actual electricity charges per Reconciliation Review process described in
Article 12 and Attachment U.
EXHIBIT "A"
PROPOSED 2022 CONTRACT AMENDMENT
(10/18/2022 VERSION)
45 17650078.3
6.17 Taxes. The City annexed the Materials Di
version Facility as non-
contiguous annexation in March 2014 so there ar
e currently no property taxes assessed
to the City. However, if any property taxes are assessed to the Materials Diversion Facility during the term of this Contract, the City will pay any and all real property taxes and assessments levied against the Materials Diversion Facility. If Contractor receives a demand from the County that it pay a possessory interest tax pursuant to California Revenue and Taxation Code Section 107, it shall promptly notify City, which shall have the right to contest such assessment. Contractor shall cooperate with City if City does contest such assessment.
If Contractor is required to pay a poss
essory interest tax, it shall do so, but City
shall reimburse Contractor for the amount paid within thirty (30) days after receiving a demand for payment from Contractor, accompanied by evidence of its payment of the tax.
Contractor will pay any and all other taxes imposed in connection with its operation of the Materials Diversion Facility, including personal property taxes and income taxes.
6.18 Marketing of Recovered Materials an
d Compost.
A. Marketing Efforts. Contractor shall us
e its best efforts in
marketing and promoting the sale of all R
ecovered Materials. As used in this Section
6.18 “Recovered Materials” includes fini
shed compost. Contractor shall employ its best
marketing strategy in effecting disposition of Recovered Materials, and shall use its best efforts to obtain the best possible prices for Recovered Materials consistent with prevailing conditions in the market, whether foreign or domestic. Contractor will exert at EXHIBIT "A"
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46 17650078.3
least the same effort in marketing t
he Recovered Materials from the Materials Diversion
Facility as it does in marketing materials which it markets for its own account as Principal or as an agent/broker for any third party.
B. Marketing Plan. Contractor shall ann
ually submit to City on or
before February 1 of each year, a plan f
or marketing of Recovered Materials for the
forthcoming year. The marketing plan shall include the following:
1. Quantities: estimated quantities
of Recovered Materials
which Contractor expects to market
during the year broken down by the type and grade
of material. The number of categories and level of detail required in the report will be subject to City approval.
2. Prices: estimated unit market values
and total sales revenue
for each category.
3. Marketing : advertising and sales promot
ion strategy and
budget, including that for hard to sell ma
terials, as required by Attachment F.
C. Marketing Duties. Contractor shal
l perform all of the following:
1. Storage. Contractor shall suitably
store all Recyclable
Materials and Recovered Materials to prot
ect against theft, deterioration, contamination
or other damage. As provided in Section 11.02, Contractor shall insure all R ecyclable
Materials and Recovered Materials while in its possession, and during shipment prior to transfer of title, against fire, theft and other casualty losses. Contractor shall ship all Recovered Materials offsite within times specified in Attachment F.
EXHIBIT "A"
PROPOSED 2022 CONTRACT AMENDMENT
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47 17650078.3
2. Certificate of End Use. Contractor w
ill obtain documentation
from the purchasers/recipients o
f Recovered Materials establishing that they have been
acquired for uses that will allow the Recovered Materials to qualify as having been diverted from disposal for purposes of the Act. The documentation shall be sufficient in form and content to satisfy CalRecycle that the materials have been diverted.
3. No Warranties. Contractor shall n
ot make any warranties or
representations regarding the Recovered
Materials other than those, if any, specifically
authorized by the City to be made and will include in all sales contracts a disclaimer of warranties by City, if required to do so by City.
4. Delivery. Contractor will be responsibl
e for effecting delivery
to purchasers unless the terms of s
ale require the purchaser to arrange for delivery. In
addition, Contractor upon request shall load compost and soil onto vehicles of all members of the public.
5. Disposition Costs When No Markets
Exist. Due to market
cycles and fluctuations, some or all
of the Recovered Materials may have no, or
negative, market value (i.e., an end user will accept the materials but will charge a fee for doing so). If users are willing to accept them only on condition of payment, Contractor may propose alternative markets or permitted facilities for beneficial, non- disposal use of Recovered Materials to the City to have such materials recycled. The City will consider these options and may grant written permission to Contractor to pursue alternate markets or destination facilities other than the Transfer Station. In the event that the City approves an alternate use of Recovered Materials when the total negative costs exceeds $0 per Ton, the City will reimburse Contractor for 100% of the EXHIBIT "A"
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48 17650078.3
actual negative costs (combined transpor
tation and per Ton tip fee and/or processing
fee) greater than $0 per Ton of negative costs and up to $47 per Ton. For the Negative Value Materials (Recovered Materials with any net negative costs including and/or processing/tipping fees to have Recovered Materials picked up at the Materials Diversion Facility or delivered to the user’s facility) with a negative cost between $47 per Ton and up to $57 per Ton, Contractor will pay for 100% these costs with no reimbursement from the City.
If the total negative cost of Recovered Materials exceeds $57 per Ton (inclusive of transportation costs for Recovered Materials to user), the City will consider the proposal and provide written permission (or denial) to Contractor to pursue the alternate market/use of the Negative Value Materials exceeding $57 per Ton. If the City has approved a negative value use of Recovered Materials $57 per Ton or greater (meaning any negative costs above $57 per Ton, inclusive of transportation cost, tipping fee or processing charge), the City will reimburse Contractor for 100% of the actual negative costs (combined transportation and per Ton tip fee and/or processing fee) greater than $57 per Ton of negative costs. For example, if the City-approved Negative Value Materials for a beneficial use was a total negative cost of $65 per Ton, the City would pay Contractor a total of $55 per Ton (100% City reimbursement from $0 to 47 per Ton, Contractor responsibility with no City reimbursement between $47 per Ton and $57 per ton and additional City reimbursement between negative cost of $57 per Ton and $65 per Ton in this example). Attachment MM has been added to this Contract to present five representative scenarios and sample calculations to further illustrate the meaning and intent of this Contract provision for disposition of costs when no markets exist.
EXHIBIT "A"
PROPOSED 2022 CONTRACT AMENDMENT
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49 17650078.3
If costs of disposition exceed t
he limits set forth above in this Section and no
alternate markets or beneficial use is available, Contractor may request City’s approval to dispose of unmarketable Recovered Materials as MSW. If City grants such approval, Contractor shall transport the materials to the Transfer Station. If City instead directs Contractor to continue to arrange for the materials to be recycled or be directed to an alternate beneficial use other than landfill disposal, City shall reimburse Contractor of the per-Ton cost incurred in their disposition as set forth above.
6. CalRecycle Regulations. Contractor s
hall comply with all
regulations of CalRecycle and any succes
sor agencies that administer the California
Beverage Container Recycling and Litter Reduction Act, including but not limited to regulations concerning (1) tracking of tonnages and material types, (2) calculation and allocations of tonnages of each type of material marketed and reported, (3) preparation of all documentation required for transactions involving materials with California Redemption Value (CRV), and (4) all reports prepared for and tracking of funds received for CRV materials, including but not limited to DR-6 and DR-7 reports, as set forth in Public Resources Code Division 12.1, Section 14500 et seq, and all regulations relating thereto. Contractor shall be solely responsible for all allocations and calculations of tonnages marketed and all tonnages and pounds reported under each category in the DR-6 and DR-7 reports to CalRecycle.
D. Title and Risk of Loss. Title to, and ri
sk of loss of, Recyclable
Materials shall be with Contractor upo
n delivery to the Materials Diversion Facility.
Contractor shall keep the Recyclable Materials and Recovered Materials on site free from liens and other claims of Contractor’s creditors.
EXHIBIT "A"
PROPOSED 2022 CONTRACT AMENDMENT
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50 17650078.3
E. Relationship of Parties. The parties t
o this Contract intend and
hereby agree that their relationship shall be
that of independent contractors with respect
to the marketing of Recovered Materials. Nothing contained herein shall be construed to create any employment, partnership, joint venture, co-ownership or agency relationship between the parties, and Contractor shall not by any action allow any presumption to arise that a relationship of partnership or agency exists between the parties.
F. Limits on Modes of Disposition. Cit
y may direct Contractor to
stop delivering Recovered Materials
for uses that do not qualify as diversion for
purposes of the Act, if uses that do qualify are feasibly available.
6.19 Contractor Reports. On or before the t
wentieth (20th) day of each
month, Contractor shall submit to Ci
ty a report showing the information required in
Attachment R under the heading “Monthly MDF Reports”. On or before the twentieth (20th) day of each month, Contractor shall al
so submit the information required in
Attachment DD “MDF Monthly Materials Paid Sales Report” as it may be revised from time to time by the City. The information in Attachment DD shall be reported for the Materials Sales Month that includes the twenty-first (21 st) day of each month through the
twentieth (20th) day of the following month. The Att
achment DD reporting is required for
all Materials Diversion Facility materials shipped or transported out of the Materials Diversion Facility on or after May 1, 2008. For example, the MDF Monthly Materials Paid Sales Report submitted on May 20
th of a given year would include informati
on for
MDF materials sales deposits for the time period of March 21st through April 20th (the previous Materials Sales Month). T
he information shall be submitted in electronic
EXHIBIT "A"
PROPOSED 2022 CONTRACT AMENDMENT
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51 17650078.3
sortable format (e.g. Excel pivot
table or equivalent) that is compatible with City
computer hardware and software. The current reporting format is shown in Attachment DD. Said reporting format may be changed from time to time by the City. Each load shall be identified by, and tracked and reported using the Materials Diversion Facility weight ticket number for that load. The City reserves the right to request additional information from Contractor as described in sections of the Contract including, but not limited to, Section 6.19, Section 9.04 and Section 14.11.
A. Information to Be Provided. The i
nformation to be provided
includes but is not limited to the “Cont
ent” list for each and every materials sales
transaction as shown in Attachment DD. The City has made software changes to the Soft Pak Scale System to add fields so that to the extent possible, the information in the Content list may be recorded in the Soft Pak Scale System and then submitted electronically. If certain required fields are not able to be entered and tracked in the Soft Pak Scale System, Contractor shall record and submit the information for which there is not yet a field in Soft Pak (e.g. amount of Broker Fee and to whom it was paid) either using a different electronic format or in hard copy format. In the event it is not possible for the City to add fields to the Soft Pak System for all of the information in the “Content” list in Attachment DD, Contractor shall continue to record and submit the information using a different electronic format or in a hard copy format.
B. Copies of All Purchase Orders. Cont
ractor shall submit, on or
before the twentieth (20th) day of each month, scanned copies (in ele ctronic PDF
format) of all Purchase Orders for loads shipped out of the Materials Diversion Facility EXHIBIT "A"
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52 17650078.3
during the prior calendar month. Copies
of Purchase Orders shall be submitted as part
of the monthly Attachment DD Reports.
C. Buyer and Broker Information Shee
ts. Contractor shall complete
and sign, under penalty of perjury, a Buyer
/Broker Information Sheet as shown in
Attachment FF for each buyer of materials from the Materials Diversion Facility and for each broker handling or involved in any materials sales transaction for materials being sold from the Materials Diversion Facility . Contractor submitted the Buyer/Broker Information Sheets for current buyers and brokers within sixty (60) days of the date of the Third Amendment. (The Third Amendment was executed July 30, 2014. The sixty (60) day period ended September 28, 2014.) Contractor shall report any material change in the information submitted for a buyer or broker within ten (10) calendar days of learning of the material change, by submitting a revised Buyer/Broker Information Sheet to the City. Should Contractor desire to make arrangements with a new buyer or broker, Contractor shall submit a Buyer/Broker Information Sheet to the City scalehouse attendants a minimum of forty-eight (48) hours prior to the first shipment of materials outbound from the Materials Diversion Facility to that buyer and/or broker. If this requirement is not met, City may, in its sole discretion, delay the shipment until the requirement is met, and/or direct Contractor to offload the material to prohibit shipment of the material until such time as the requirement is met.
D. Semi-Annual Materials Sales Aging R
eport. On or before May
15 and November 15 of each year, City w
ill review current materials sales data and will
provide Contractor with a list of outstanding materials sales shipments (shipped more than 60 days prior) for which payment has not been received. Contractor shall provide EXHIBIT "A"
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53 17650078.3
to City the following information abo
ut each outstanding shipment within 45 days (on or
before July 1 for the list dated May 15 and on or before January 1 for the list dated November 15): status of the load and date payment is expected; collection activities undertaken to date; collection activities planned to be undertaken by Contractor and on what dates; and if applicable, description and reason(s) why Contractor is recommending that the transaction be “written off” the books as “uncollectible”.
E. Weekly Finished Bale Count At
Materials Diversion Facility.
Contractor shall conduct weekly counts
of finished bales of materials stored on-site at
the Materials Diversion Facility prior to shipment to buyers and/or brokers. The past practice of the parties has been for Contractor to make a scanned (electronic PDF) copy of the handwritten bale count (listing the number of finished bales of each material type) and send it via electronic mail to the City as an information item. Contractor agrees to continue this practice and to send such handwritten bale count information to City within two (2) business days after the bale count is conducted.
F. Annual Inventory of Material
s On Site At Materials Diversion
Facility. Contractor shall conduct a phy
sical inventory of all materials on site at the
Materials Diversion Facility as of
the close of business on June 30 of each year, and
shall submit a report of the annual inventory to the City on or before July 10 of each year. The physical inventory shall include a count of all finished bales, all materials in bunkers, hoppers, roll off boxes and other storage containers, and of all materials loose on the Materials Diversion Facility floor, recorded by material type. For loose materials, Contractor shall include in the report the method and calculations used to estimate the quantity of each type of material (e.g. “X” cubic yards of mixed paper at a conversion EXHIBIT "A"
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54 17650078.3
factor of “Y” is estimated to be “Z”
Tons). Contractor shall notify City at least fourteen
(14) calendar days in advance of the annual inventory of the date and time the inventory will be conducted. City shall have the right, but not the obligation, to send an employee or other agent or representative to be present and to observe the inventory process. In years when June 30 falls on a weekend day, Contractor shall conduct the annual inventory at the close of business on the last sorting day of the month of June.
G. Report of Materials Sales Transact
ions With Affiliated Entities.
Contractor shall provide an Agreed-Upon Pr
ocedures Report listing all materials sales
transactions with Affiliated Entities at the same time that Contractor submits a copy of its audited financial statements to the City. The Agreed-Upon-Procedures Report shall be prepared by Contractor’s Certified Public Accountant as described in Attachment LL and shall contain the information listed in Attachment LL. Contractor shall provide City with additional information about the listed transactions within fifteen (15) business days of any City request. City shall pay Contractor the annual cost for preparation of the Agreed-Upon-Procedures Report, not to exceed Two Thousand Five Hundred dollars ($2,500) annually.
H. City -Directed Sale of Materials To N
on-Affiliated Entities. In the
event the City’s review of materi
als sales data submitted by Contractor shows that
materials are being marketed to an Affiliated Entity, City may, in its sole discretion direct Contractor to sell one of the materials that is being marketed to an Affiliated Entity, to a non-Affiliated Entity. In such event, City shall notify Contractor that City intends to direct the sale of a specified material to a non-affiliated third party. Contractor shall provide City with a list of the non-Affiliated Entity buyers for the specified material. City may EXHIBIT "A"
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55 17650078.3
select one of the listed buyers and wil
l then request that Contractor fill out a
Buyer/Broker Information Sheet (Attachment FF) for that buyer. City may then direct Contractor to ship the next two (2) loads of the specified material (e.g. scrap metal) to the City-selected non-Affiliated Entity. The City may direct the sale of two (2) loads of one type of material to a non-Affiliated Entity a total of two (2) times per calendar year.
The data concerning this sales transaction shall be recorded and reported by Contractor in the normal manner as required by this Contract.
I. City-Directed Price Quotes and Sale of
Materials. In addition to
the provisions of Subsection H above, Ci
ty shall have the right to direct Contractor to
obtain price quotes from buyers and/or brokers (other than those to whom Contractor is selling a specified material) once each calendar year, for up to two (2) types of materials each year. If so directed by City, Contractor shall obtain a minimum of three (3) price quotes for each material type. At least one (1) of the quotes must be from a non- Affiliated Entity. If the quotes are more favorable than the prices and terms Contractor is receiving from its current buyer and/or broker, City will discuss with Contractor the reasons for the price difference and compare the terms. City may direct Contractor to give Contractor’s current buyer or broker for the specified material an opportunity to match or exceed the more favorable price and terms offered by the new buyer or broker. In the event Contractor’s current buyer or broker refuses or is unable to match the more favorable price and/or terms, City may direct Contractor to sell the materials to the new buyer or broker. In such event City may direct Contractor to complete a Buyer/Broker Information Sheet (Attachment FF) for the new buyer and to ship up to the next ten (10) loads to the new buyer. The data concerning these sales transactions shall EXHIBIT "A"
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56 17650078.3
be recorded and reported by Contractor in the norm
al manner as required by this
Contract. City may utilize the provisions of this Subsection “I” for two (2) materials at one time, or may utilize the provisions for a single material type and later in the calendar year utilize the provisions for a second material type.
J. Payment to Contractor For En
hanced Materials Sales
Reporting. Beginning February 1, 2011, C
ontractor was paid for an additional 0.25 full-
time equivalent (FTE) of a Custo
mer Service Representative (CSR) position in order to
complete the enhanced materials sales data reporting required in this Section 6.19.
Beginning August 1, 2014 Contractor w
as and shall continue to be paid for another 0.25
FTE of a CSR position to complete the reporting required by this Section 6.19. This shall be paid as part of Contractor’s Capital and Operating Cost Payment described in Section 12.03.
K. Retention of Records. Contractor sh
all retain records for all
materials sales transactions for a per
iod of three (3) years after the date of receipt or
issuance. Such records shall include but not be limited to, Purchase Orders, bookings, copies of checks received in payment for materials, receipts, invoices and other documentation showing the payments, costs and deductions charged by brokers, end markets and processors for freight, shrinkage, packaging, contamination, demurrage, storage and all other charges and costs affecting the final revenue received for the materials, as specified by the City. Records of allocation of materials and calculations used by Contractor to determine the quantities of each type of material listed on the Attachment R and Attachment DD reports as marketed from the Materials Diversion Facility, shall also be maintained by Contractor. Contractor may, at its option, maintain EXHIBIT "A"
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57 17650078.3
these records in computer form,
on microfiche, or in any other manner, provided that the records can be preserved and retrieved for inspection and verification in a timely manner.
L. Requests For Additional Informat
ion. City may request
additional information regarding any At
tachment R Report and any Attachment DD
Report. Such request shall be in writing and shall describe the information requested with reasonable specificity. Contractor shall furnish the requested information to City within thirty (30) days from the date of the request.
M. Use of Information. City may use recor
ds provided pursuant to
this Section for any purpose including, but
not limited to review by City employees,
auditors, contractors or other agents, and review by CalRecycle, its successor or other agencies. Such records and documents may not be considered proprietary by Contractor.
6.20 City Use of Office. City shall hav
e exclusive use of approximately three
hundred ninety four (394) square feet of
the office space as shown on Attachment M-
1.C. In addition ten (10) parking spaces will be reserved for the exclusive use of City staff and invitees. Contractor shall provide, at no charge to City, utilities to this portion of the building, including water, sewer, heat and light, as well as janitorial and building maintenance services. City will provide, at its expense, telephones and other communications equipment, furniture, computers, office supplies.
6.21 Origin Reporting by Jurisdiction
. Contractor shall assist City in
compiling tonnage data by jurisdiction s
o that City can provide users of the Materials
Diversion Facility with data they are required to submit to CalRecycle.
EXHIBIT "A"
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58 17650078.3
6.22 Use of Materials Diversion Facil
ity by Designated Hauler for County.
If Contractor is also selected by Napa Co
unty to provide collection services, it may use
the Facility for storage, servicing and maintenance of collection vehicles and equipment used to provide service to County if, but only if, the County and City agree on terms for such use and in compliance with such terms.
6.23 City Access to Materials Diversion
Facility. In addition to City’s rights
under other provisions of this Contrac
t, City and its agents shall have the right at all
reasonable times to enter the Materials Diversion Facility to (a) inspect the Materials Diversion Facility , (b) allow prospective future operators and others engaged in municipal solid waste management/recycling to tour the Materials Diversion Facility , (c) serve or post notices required by law or that City considers necessary for protection of City or the Materials Diversion Facility , (d) perform repairs which City is required to make under this Contract, (e) make repairs or alterations to or replacements of the Materials Diversion Facility that City considers necessary or desirable in accordance with the terms of this Contract, (f) take possession due to a default by Contractor, (g) perform any obligations of Contractor that Contractor fails to perform. In addition, City employees/agents may enter the City-office portions of the administrative offices at the MDF shown on Attachment M at any time and without prior notice.
6.24 Proposed Biomass Gasificatio
n Plants at Materials Diversion Facility.
At the time of this 2021 Contract
Amendment, the City and Contractor have had
extensive discussions regarding the operating and capital costs for two, one megawatt (MW) biomass gasification plants at the Materials Diversion Facility. To this end, Contractor has developed preliminary operating and capital costs for analysis and EXHIBIT "A"
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59 17650078.3
planning purposes. If the City and Contrac
tor agree on the final operating and capital
cost for the two biomass gasification plants, the Parties will propose an amendment to this Contract, subject to approval by the City Council, by which the final cost will be added to the compensation spreadsheets contained in Attachment T to this Contract.
The two biomass gasification plants would utilize Wood Waste and suitable portions of Yard Trimmings as feedstock for power generation at the Materials Diversion Facility. Such power will be used at the Materials Diversion Facility or sold.
Although the specifics of an amendment to this Contract, which would fully describe the installation, financing and operations of the proposed biomass gasification plants, have not yet been finalized, the City and Contractor have reached a conceptual agreement on the basic framework for such an amendment and the details of the basic framework are included in Attachment F.
6.25 Proposed Anaerobic Digestion
to Biofuel System at Materials
Diversion Facility. At the time
of the 2021 Contract Amendment, the City and
Contactor have had extensive discussions r
egarding the installation and operation of an
Anaerobic Digestion (AD) to biofuel system at the Materials Diversion Facility. The proposed 44,000 Tons per year AD to biofuel system would receive pre-processed Compostables and Packaged Organics to be processed into renewable compressed natural gas, electrical power and “digestate.” The digestate would be collected by Contractor for composting in the CASP. The fuel created by the AD Facility would supply the Contractor's collection vehicles.
In 2014, the City was awarded a $3 million
competitive grant from the California
Energy Commission (CEC) for the proposed AD to biofuel system. If the City and EXHIBIT "A"
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60 17650078.3
Contractor agree on the final terms f
or the installation and operation of the AD Facility,
the Parties will propose an amendment to this Contract, subject to approval by the City Council. Although the specifics of an amendment to this Contract, which would describe the installation and operations of the proposed AD Facility, have not yet been finalized, the City and Contractor have reached a conceptual agreement on the basic framework for such an amendment and the details of the basic framework are included in Attachment F.
EXHIBIT "A"
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61 17650078.3
ARTICLE 7. EQUIPMENT AND PERSONNEL
7.01 General. Contractor shall furnis
h all equipment necessary to perform
safely and efficiently the servi
ces required by this Contract except for the equipment
furnished by the City for use at the Materials Diversion Facility which is listed on Attachment M-1.A and recycling containers listed on Attachment M-1.B.
Purchases of replacement equipment shall b
e made consistent with Attachments
K, L and T. Contractor shall not purchase equipment with a cost in excess of $10,000 without City’s prior approval.
If Contractor enters into any financial transactions with an Affiliated Entity for the provision of labor, equipment, supplies, services, or capital related to the furnishing of services under this Contract, or for the purchase of Recyclable Materials or sale of Recovered Materials, that relationship shall be disclosed to City, and in the financial reports submitted to City. In such event, the City’s rights to inspect records and obtain financial data shall extend to such Affiliated Entity. The provisions of Section 14.04 shall apply to any proposed subcontractor, whether the proposed subcontractor is an Affiliated Entity or other Person.
A. Management and Use of Equipment.
1. Exclusive Use At MDF. Except as ex
pressly permitted
herein, Contractor shall not utilize any
of the equipment listed in Attachments K, L and
M, or any equipment that Contractor is required by this Contract to provide in the future, for any purpose other than operation of the MDF. Said equipment shall not be used for operation of the Transfer Station by Contractor’s affiliated company, Northern, for any EXHIBIT "A"
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62 17650078.3
operations of NCRWS, or for operati
ons by any other Affiliated Entity. Equipment that
shall not be used for any other purpose includes but is not limited to: the MDF water truck, forklift and loader; office equipment; computers; printing and postage resources; and collection equipment such as trucks, roll off boxes, carts and bins.
2. Equipment Identification. All eq
uipment provided by
Contractor for operations pursuant to
this Contract, including but not limited to vehicles,
carts, roll off boxes, bins and rolling stock in the MDF shall be specially marked to indicate that the equipment belongs to Napa Recycling and Waste Services, LLC and is for use solely in the City of Napa. Such painted markings shall be easily visible and recognizable from a distance of one hundred (100) feet as distinguishing Contractor’s equipment from that of all other Affiliated Entities, including but not limited to Northern, NCRWS, and 600 Tower Road (DBA Valley Recycling). As part of the markings described herein, Contractor shall consecutively number all three hundred fifty (350) roll off boxes committed by Contractor to City operations as listed in Attachment L. These roll off boxes shall be numbered from 001 to 350 in numbers easily discernable from a distance of one hundred (100) feet. All vehicles and equipment owned by each of Contractor’s Affiliated Entities including but not limited to vehicles and roll off boxes shall also be uniquely painted to identify the vehicles and equipment as belonging to each of the Affiliated Entities. Such painted markings shall be easily discernable from a distance of one hundred (100) feet. Contractor completed the above-described painting EXHIBIT "A"
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and marking by September 30, 2010 and wil
l maintain compliance as equipment is
replaced within sixty (60) days of replacement.
3. Accommodation of Affiliate Com
puter. Contractor may
install and operate the local computer ow
ned by Northern and used to store and
manipulate data from operation of the Transfer Station in the offices of the MDF. If it does so, Contractor shall be responsible for all maintenance, repair and replacement of the computer, shall carry insurance on it, and shall hold the City harmless for any damage to or destruction of it.
4. No Storage of Other Affiliate Pr
operty. Except as provided
under the lease between City and NCRWS fo
r storage of NCRWS equipment (City
Agreement No 8891), Contractor shall not install or store any other personal property, including but not limited to computers, printers, fax machine, office equipment or any other items that are not specifically dedicated to operations for the City required by this Contract, without the prior written consent of the City. If the City approves the installation or storage of any such equipment at the MDF, Contractor agrees to be fully responsible for maintenance, repair and replacement of all such equipment, to carry insurance on all such equipment, and to hold the City harmless for any damage to or destruction of such equipment.
7.02 Vehicles.
A. General. Contractor shall provide coll
ection and auxiliary vehicles
of the type, size and configuration,
and in the quantities shown on Attachment K. The
one food composting collection CNG vehicle purchased in 2015 shall be replaced with a new and unused vehicle of suitable design and construction for arduous heavy-duty EXHIBIT "A"
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service by January 1, 2026, as described in
Article 12, Attachment T, and Attachment K.
Contractor will be compensated for vehicles as set forth in Article 12 and Attachment T.
If the Contractor determines that it needs additional or replacement vehicles to perform the scope of work, Contractor is solely responsible for purchasing any additional or replacement vehicles at no additional cost to the City. All vehicles acquired during the Term shall also be new and unused. If it becomes necessary during the Term, a used vehicle may be placed into service on a temporary basis (i.e., no more than 90 days) provided that it is safe, in good operation condition, and equivalent in design and capacity to vehicles in regular service. All vehicles shall comply with all laws and regulations including but not limited to the California Air Resources Board regulations for diesel-fueled solid waste collection vehicles codified at 13 CCR Section 2020 et seq.
B. Vehicle Identification. Name of Cit
y and Contractor, Contractor’s
local telephone number, and a unique vehic
le identification number for each vehicle
shall be prominently displayed on all vehicles. City shall approve all details, including size, color and location of text, I.D. numbers and logo.
C. Cleaning and Maintenance.
1. General . Contractor shall maintain all of
its equipment used
in providing service under this Contract
in a safe, neat, clean and operable condition at
all times.
2. Cleaning . The exterior and interior of v
ehicles used in the
collection of MSW, Recyclable M
aterials and Compostables shall be thoroughly washed
by Contractor at least once every working day and thoroughly steam cleaned at least once every week. City may inspect vehicles at any time to determine compliance with EXHIBIT "A"
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sanitation requirements and aesthetic con
ditions. Contractor shall make vehicles
available to the Napa County Local Enforcement Agency for inspection, at any frequency it requests.
3. Painting . All vehicles used in collect
ion of MSW, Recyclable
Materials and Compostables shall be repai
nted by Contractor at least once every two
years, unless the City determines that repainting specific vehicles at that frequency is not necessary because the vehicle’s appearance is satisfactory or unless the City determines that repainting a specific vehicle earlier (due to graffiti, wind damage, etc.) is necessary to ensure that the vehicle gives the appearance of having been repainted within the preceding twenty four (24) months.
4. Maintenance . Contractor shall (i) ins
pect each vehicle daily
to ensure that the vehicle and all equipment
is operating properly. Vehicles which are
not operating properly shall be taken out of service until they are repaired and do operate properly; and (ii) perform or cause to be performed all scheduled maintenance functions in accordance with the manufacturer’s specifications and schedule.
Contractor shall keep accurate records of all vehicle maintenance, recorded according to part or vehicle I.D., date, and mileage, and shall make such records available to the City upon request.
5. Repairs . Contractor shall repair, or ar
range for the repair of,
all vehicles and equipment for which r
epairs are needed because of accident,
breakdown or any other cause so as to maintain all vehicles and equipment in a safe and operable condition. If an item of repair is covered by a warranty, Contractor shall obtain warranty performance. Contractor shall maintain accurate records of repair, EXHIBIT "A"
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which shall include the part or vehicle I
.D., date/mileage, nature of repair and the
signature of a maintenance supervisor that the repair has been properly performed.
6. Storage. Contractor shall arrange to s t
ore all vehicles and
other equipment in safe and secure location(s
), including 600 Tower Road. Vehicles
will be stored at the Materials Diversion Facility or at another location arranged by Contractor and approved by City. Facilities used for storage shall comply with all zoning and land use requirements applicable to the facility. City shall have access to the facility at all times.
D. Operation. Vehicles shall be operated i
n compliance with the
California Vehicle Code and all applic
able safety regulations and local ordinances.
Vehicles shall be operated only by employees of Contractor who are appropriately licensed by the California Department of Motor Vehicles. Contractor shall not load vehicles in excess of the manufacturer’s recommendations or limitations imposed by state or local weight restrictions on vehicles. Contractor is solely responsible for paying any fines imposed by the California Highway Patrol, or other regulatory agencies, for violation of these requirements.
E. CNG Vehicles & Refurbishment Plan.
Contractor purchased
seven compressed natural gas (“CNG”)
vehicles in 2005 and will now refurbish these
seven vehicles and one conventional diesel engine vehicle for use in its commercial and residential fleet as shown on Attachment K. Once the vehicles were received and street-ready, the Contractor submitted its CNG vehicle invoices to the City. The City was awarded grant funds from the Bay Area Air Quality Management District (“BAAQMD”), provided these invoices to BAAQMD and requested distribution of EXHIBIT "A"
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67 17650078.3
$315,000 in grant funds pursuant to a Fun
ding Agreement between the City and
BAAQMD (“Funding Agreement”). Upon receipt of the grant funds the City remitted them, in a lump sum form, to the Contractor. The seven 2005 CNG vehicles and one conventional diesel engine vehicle will be refurbished by January 1, 2021, will be refurbished for a second time by January 1, 2027, and will continue to be operated through the duration of the Contract as further described in Article 12, Attachment T, and Attachment K. All costs associated with refurbishment and replacement of vehicles are set forth in Article 12 and Attachments K and T.
7.03 MSW, Recycling and Compostables
Containers.
A. General. Contractor shall furnish
(and deliver to Customers) all
containers for storage of (i) MSW,
(ii) Recyclable Materials and (iii) Compostables, the
type and size of which are shown in Attachment B, and quantities of which are shown on Attachment L. Contractor shall extend the life of the current containers through maintenance and will replace containers with new and unused containers in accordance with the quantities, color, labeling, identification, and schedules shown in Attachments B and L. The type, size and number of containers shall be sufficient to contain, with the lid closed, all MSW, Recyclable Materials and Compostables generated between collections.
B. Repair and Replacement. In addition, to r
eplacing containers in
accordance with the quantities, color,
labeling, identification, and schedules shown in
Attachments B and L, Contractor shall repair or replace all containers damaged by collection operations, or which do not meet vendors’ warranties, or as identified by customer or City. City shall have sole and final discretion to determine if the condition EXHIBIT "A"
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of containers meets the standards s
et forth in this Contract, and Contractor will respond
in a timely manner to address and resolve any container issue(s) identified by the City.
When Contractor replaces containers, it must provide a bill of sale and any associated warranty to the City within sixty days of purchase. City will provide Contractor a fixed annual payment for container replacement as described Article 12 and Attachments T and L. If Contractor purchases replacement containers at a cost in excess of the 14- year aggregate of fixed annual payments (as documented by the aggregate dollar value of the bills of sale submitted by Contractor to the City), the Contractor will own the additional replacement containers purchased at a cost in excess of the 14-year aggregate of fixed annual payments.
C. Cleaning, Painting and Maintenance
of Contractor-Furnished
Containers. Contractor shall maint
ain all Contractor-furnished containers in a
functional condition and so as to pres
ent an attractive appearance. Such containers
shall be painted and repainted as requested by City. Contractor-furnished containers that have been painted or marked with graffiti shall be repainted or removed from the Premises by Contractor within twenty-four (24) hours of notification by the Customer or City. At the same time as such containers are removed, they shall be replaced by like- sized containers furnished by Contractor without evidence of graffiti. Contractor shall clean and maintain all Contractor-furnished containers in a safe and sanitary condition EXHIBIT "A"
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and whenever the City, or another agency wit
h jurisdiction as a regulator, determines
that cleaning is required to abate a health concern or nuisance condition.
7.04 Materials Diversion Facility E
quipment.
A. General. City will provide the equip
ment listed on Attachment M-1.
Contractor shall provide all other equipme
nt, sufficient in number and capacity to
perform safely and efficiently the work required by this Contract including but not limited to the equipment listed on Attachment M-2. Contractor shall maintain all existing equipment in good working order and all equipment furnished by Contractor shall be new and unused or refurbished as of January 1, 2021 in accordance with Articles 6 and 12 and Attachments F, H, J, M-1, M-2, and T. All equipment shall be suitable in design and construction for arduous, heavy-duty service in a materials recovery/composting operation and shall comply with all applicable laws and regulations.
B. Mixed C&D Equipment; Temporary Re
placements. Equipment
initially furnished exclusively f
or processing Mixed C&D Debris may be used rather than
new. If Mixed C&D Debris processing commences, new equipment may be required as provided in Attachment F.
All equipment acquired during the T
erm shall also be new and unused. If it becomes
necessary during the Term, a used piece of equipment may be placed into service on a temporary basis (i.e., no more than 90 days) provided that it is safe, in good operation condition, and equivalent in design and capacity to the equipment it is temporarily replacing.
EXHIBIT "A"
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7.05 City Right to Purchase Equipment,
Sales of Equipment. The City shall
have the right, but not the duty, to purchas
e any or all equipment, including vehicles,
owned by Contractor at the expiration or earlier termination of this Contract, at its net book value as shown on Contractor’s financial statements, which shall be no greater than the purchase price less the accumulated depreciation allowed for such equipment in payments of Contractor’s compensation pursuant to Article 12. Prior to November 1, 2005, Contractor delivered to the City properly signed UCC-1 Financing Statements and all other documents necessary or appropriate for the City to secure its purchase options and file, or allow the City to file, such Statements and other documentation as provided in California Commercial Code. As new or replacement equipment is purchased, similar documentation covering it shall be provided by Contractor within thirty (30) days of purchase.
Upon the City’s exercise of its opti
on to purchase, Contractor will sign and deliver
bills of sale or other documents reasonably requested by City to evidence the transfer of title to all equipment purchased.
If Contractor wishes to lease (rather than purchase) the equipment which it is to furnish, it shall request City’s permission to do so and provide to City, for its approval, complete and accurate copies of all equipment leases which it proposes to enter into.
The leases must provide that the lessor will, if requested, consent to their assignment to City without charge upon the expiration or earlier termination of this Contract and must provide adequate mechanisms for the City to acquire title to equipment if desired.
If Contractor sells vehicles or other equipment during the Term, its undepreciated value will be removed from the calculation of Contractor’s Payment. If the equipment was EXHIBIT "A"
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fully depreciated before its sale, t
he revenue received by Contractor from its sale shall
be reported to City and deducted from Contractor’s Payment.
7.06 Personnel.
A. General. Contractor shall furnish
such competent and qualified
drivers, laborers, mechanical, superv
isory, clerical, managerial and other personnel as
may be necessary to provide the services required by this Contract in a safe, efficient, reliable and courteous manner. The minimum complement of employees which Contractor will provide for the scope of work described in this Contract shall be as set forth on Attachment N.
Attachment N shows the personnel compl
ement at the Materials Diversion
Facility at the Baseline throughput (80,550 Tons per year). The parties recognize that throughput rates may be greater than Baseline and additional personnel may be required. The Contractor will add personnel as needed to operate the Materials Diversion Facility, without any increase in compensation, except as provided in Section 12.05.
1. General Manager and Controller. Contrac
tor commits to
provide seventy-five percent (75%) of one f
ull-time equivalent (FTE) for both the
General Manager and Controller positions. The annual work hours of the General Manager, currently Greg Kelley, are seventy-five percent (75%) of one FTE. Contractor agrees the General Manager position will be held by Greg Kelley unless the City approves, in writing, a substitution of another General Manager. Contractor further agrees that the annual work hours provided by the General Manager to the City shall not be reduced below seventy-five percent (75%) of one FTE without the written EXHIBIT "A"
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consent of the City. For purposes of t
his Contract one FTE equals two thousand eighty
(2080) work hours per year. The annual work hours of the Controller, currently Ken Lydon, are seventy-five percent (75%) of one FTE. Contractor agrees the Controller position will be held by Ken Lydon unless the City approves, in writing, substitution of another Controller. Contractor further agrees that the annual work hours provided by the Controller to the City shall not be reduced below seventy-five percent (75%) of one FTE without the written consent of the City. In order to accommodate the work being performed by the General Manager and the Controller for Affiliated Entities as described herein, those two (2) management employees may utilize their office space at the MDF for such work.
B. Driver Qualifications. All driver
s shall be trained and qualified in
the operation of waste collection vehi
cles and must have in effect a valid license, of the
appropriate class, issued by the California Department of Motor Vehicles. Each driver shall carry his/her license during work hours.
C. Uniforms. Contractor shall require its
drivers, and all other
employees who come into contact with the publi
c in the City during working hours, to
wear standardized uniforms bearing the Contractor’s name, and to carry an identification badge or other means of identifying the employee. The City shall have the right to approve the style and color of the uniforms. Such uniforms shall present a freshly cleaned appearance. Employees shall be instructed to present employment identification cards to City staff, customers, security guards and law enforcement officers upon request, during work hours.
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D. Safety Training. Contractor shall
provide suitable operational and
safety training for all of its
employees who utilize or operate vehicles or equipment for collection or processing of MSW, Recyclable Materials and Compostables, or who are otherwise directly involved in such collection or processing.
E. No Gratuities. Contractor shall not
permit its employees to
demand or solicit, directly or indi
rectly, any additional compensation or gratuity from
members of the public for the collection of MSW, Recyclable Materials and Compostables under this Contract.
F. Employee Conduct and Courtesy. Contrac
tor shall use its best
efforts to assure that all employees pr
esent a neat appearance and conduct themselves
in a courteous manner. Contractor shall regularly train its employees in customer courtesy, shall prohibit the use of loud or profane language, and shall instruct collection crews to perform the work as quietly as possible. If any employee is found not to be courteous or not to be performing services in the manner required by this Contract, Contractor shall take all necessary corrective measures, including, but not limited to, transfer, discipline or termination. If City has notified Contractor of a complaint related to discourteous behavior, Contractor shall, upon request of City, reassign the employee to duties not entailing contact with the public while the Contractor is pursuing its investigation or disciplinary process.
G. Provision of Recycling/Public
Education Supervision.
Contractor shall designate one qualifi
ed employee as supervisor of recycling and public
education activities. The supervisor will devote all of his or her time to these activities.
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Contractor shall notify City, in
writing, of the name of the supervisor prior to
commencing operations and whenever there is a change in the staffing of the position.
H. New Hiring. Contractor shall hire and
maintain the necessary
complement of employees in order to perf
orm all operations. Contractor shall conduct a
background check of each applicant which will, at a minimum, include a check of his/her driving record through the Department of Motor Vehicles, record of criminal convictions, and references. All applicants shall be required to take a standard test for use of illegal drugs and alcohol as a condition of employment. Drivers shall be required to demonstrate proficiency in the English language; at least one person proficient in spoken English shall be on every collection vehicle when that vehicle is in service.
Contractor will furnish City with a copy of its training manual and schedule of training of new employees; City may require Contractor to include specific topics in such manual and training program. City may attend and observe any safety or operational training classes. Nothing in this Section
7.06.H shall be construed to give City c
ontrol over the
selection or supervision of Contractor’s employees.
I. Ongoing Training and Testing. Contractor
shall provide regular
safety training on an ongoing basis and s
hall conduct random drug and alcohol testing
of employees in safety-sensitive positions in compliance with regulations issued by the U.S. Department of Transportation.
J. Use of Workers Not Employed by
Contractor. If Contractor
engages any workers through an independent cont
ractor, such as an employment
agency, it shall ensure that such contractor or agency:
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1. Complies with the nondiscriminati
on requirements imposed
on Contractor by Section 14.10;
2. Maintains Comprehensive General Liability, workers
compensation and Employer’s Liability insurance covering such workers in the amount required by Section 11.02.A and with policies meeting the other requirements of Section
11.02. Contractor is responsible for providing qualified and competent workers, whether as direct employees or through workers furnished by an independent contractor.
Contractor is also responsible for providing sufficient training to all workers so that they can perform the work in a safe and competent manner and are thoroughly familiar with the work which Contractor is required to perform and the standards it is required to meet, under this Contract.
All drivers, mechanics, sorters, supervisory and managerial workers shall be direct employees of Contractor.
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ARTICLE 8. BILLING, ACCOUNT, CUST
OMER, AND OTHER COLLECTION-
RELATED SERVICES
8.01 Collections Account Billing.
A. General. Contractor shall: (i) bil
l customers for MSW and
Recyclable Materials collection at t
he rates established by the City Council from time to
time; (ii) coordinate with City’s lockbox vendor on matching billings with payments received and identification of returned checks, miscued items and unreadable checks; (iii) establish and maintain courier services for daily forwarding to City’s lockbox vendor of payments received in cash and for advance payment of temporary accounts; (iv) establish and maintain a separate credit card system for account payment directly into a City-designated account; (v) provide a full customer service center within City limits (not including City-annexed MDF property); (vi) maintain accurate billing and payment records; (vii) establish billing and collection procedures; and (viii) notify the City of delinquent accounts monthly. Contractor shall adhere to the billing frequencies, provisions regarding format of bills, policies and terms in the Billing Protocol attached as Attachment Q.
B. City Inserts. City may direct Con
tractor to produce and insert
mailers with billings relating to Cit
y-sponsored events and integrated waste
management activities, to the extent that the mailer does not increase Contractor’s normal postage cost for billing. If a postage increase is incurred for said mailing, the City will be responsible for the actual amount of the increase. Any implementation of electronic billing shall include a mechanism to provide insert information that would have been sent out through mailed bills.
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C. Delinquent Accounts.
1. Contractor shall be responsible for col
lecting delinquent
charges for services it renders to customers. Contractor shall employ measures, consistent with federal and California laws regulating the collection of debts, to obtain payment of charges including use of its own employees to obtain judgments in Small Claims Court and to enforce such judgments. Contractor shall not (1) assign delinquent accounts to a third party collection agency, or (2) initiate a Small Claims Court action without prior written approval from City.
2. If City elects to assume responsibility for collection of delinquent charges, Contractor shall designate a representative to attend administrative or other hearings as scheduled by City to address delinquent charges for services rendered to any customer by Contractor and/or legal proceedings initiated by the City to collect such charges. Contractor’s representative shall provide the customer’s account records to the City, together with any other documents requested by the City.
3. If a customer's check is returned, Contractor must note the returned check in the Contractor’s customer billing database and provide written notice to customer within 5 business days of receiving notice of the returned check from the bank.
4. Contractor shall be responsible for developing and managing an equipment pull list specifying Containers for accounts that are over 90 days delinquent. Contractor shall implement a process to remove all Containers for those accounts over 90 days delinquent and prioritize the equipment removal of those with the EXHIBIT "A"
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highest as well as oldest outstanding bal
ances. Contractor shall have a route
supervisor verify monthly that drivers are not servicing delinquent accounts that have had equipment pulled.
5. Contractor may suspend or terminate waste collection services provided to any Premises for accounts over 90 days delinquent if the Contractor has fulfilled the requirements set forth in Section 8.01. If Contractor suspends or terminates waste collection services for an account, Contractor must note the suspension or termination in the Contractor’s customer billing database.
D. Use of Subcontractor. Contractor may
delegate billing-related
responsibilities under Subsections A, B, and C to a qualified, experience d and
financially responsible firm as a subcontractor, with City’s prior written approval.
8.02 Collections Billing Records. Contr
actor shall keep records of all billing
documents and customer account records
including, but not limited to, invoices,
customer payment coupons mailed with the invoice and collection notices, for a period of three (3) years after the date of receipt or issuance. Contractor may, at its option, maintain those records in electronic machine-readable form or in any other manner, provided that the records can be preserved and retrieved for inspection and verification in a timely manner.
8.03 Collections Monthly Reports. On
a monthly basis, Contractor shall
provide the City with the reports outlined
below concerning the billing, accounts
receivable, delinquent accounts, sales journal, and month-end accounting. The City has EXHIBIT "A"
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the discretion to request additional repor
ts and to direct Contractor to modify format and
content.
A. Accounts Receivable Aging Report consi
sting of a listing by
account of the amounts billed and paymen
ts received during the prior month in an Excel
document file format. This report shall be submitted to the City on or before the twelfth (12th) day of each month.
B. Cash Receipts Journal consisting of a l
isting in date order of each
payment recorded (including cash, credit c
ard and electronic payments received and all
payments reported by the lockbox), customer account number, customer service address and amount received during the prior month. This report shall be submitted to the City on or before the twelfth (12
th) day of each month.
C. Delinquent Account Reports which includes
an Account Stop List,
Payment Plan List, Monthly Update Lis
t, and Third Party Collection Agency Report.
These reports shall be submitted to the City by the fifth (5th) of every month. These reports wi
ll include, in customer account order, the customer name, service address, account number and amount delinquent (i.e., not paid within thirty (30) days) during the prior month. Additionally, the Delinquent Account Reports must include:
1. Account Stop List shall include the l
ist of accounts over 90-
days delinquent which had equipment pulled and acc
ount stopped within the past
calendar month. Contractor must provide separate lists for residential and commercial accounts;
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2. Payment Plan List shall include the account
s currently under
a payment plan and the associated terms o
f such payment plan. Contractor must
provide separate lists for residential and commercial accounts;
3. Monthly Update List shall include a comprehe
nsive list of all
accounts that are over 90-days delinquent i
ncluding noting which accounts became 90-
days delinquent within the past calendar month. Contractor must provide separate lists for residential and commercial accounts; and
4. Third Party Collection Agency Repor
t shall include all new
assignments of delinquent accounts
to Third party collections, as well as any payments
received on accounts.
D. Sales Report consisting of the “S
ales Journal” report providing
customer payments received during the
prior month including any adjustments. The
Sales Report shall be submitted to the City on or before the twelfth (12th) day of each month.
E. Month End Accounting Report comparing dep
osits posted in the
Contractor’s customer billing dat
abase, the deposits received by bank, and the
associated variances. Variances on the month end accounting report shall include the customer account number, but if the account number is not available at time or report it shall be provided to the City in the following month. The Month End Accounting Report shall be submitted to the City on or before the twelfth (12th) of each month.
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81 17650078.3
8.04 City Access to Collections
Billing Information. Contractor shall
provide City with prompt access to al
l current and up-to-date billing information
necessary to allow the City to collect delinquent bills pursuant to the Municipal Code. In addition, Contractor cooperated fully and actively with City staff to effectuate transfer of billing information to the City electronically by January 1, 2006.
Since September 28, 2014, the Contractor
has provided and will continue to
provide City with read-only real time 24-hour access to all information in Contractor’s customer billing database. City shall not have the ability or the right to alter or change any of the data in Contractor’s customer billing database. Only the following City personnel shall have access to Contractor’s customer billing database: the Materials Diversion Administrator, the Management Analyst/Materials Diversion Analyst, the Waste Prevention Specialist, Code Enforcement Officer, two Accountants, the Finance Manager and an Accounting Technician. Contractor has and will continue to cooperate and consult with City to determine the best mode of read-only access (e.g. via a new workstation located at the MDF, using wireless remote access or an alternative form of access). Contractor has and will continue to provide City with access to Contractor’s computer hardware and software to the extent required to establish City’s read-only real time access. Hardware and software that may be required includes a computer workstation, other appropriate hardware to be located at the MDF, software (including a minimum of three (3) and a maximum of six (6) Soft-Pak software licenses) and programming required to interface with Contractor’s customer billing database. If additional hardware, software or installation is needed in the future, City shall pay the reasonable costs (as determined by City’s IT Manager) for the required hardware, EXHIBIT "A"
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software and installation. City
may elect to pay Contractor directly for hardware,
software and installation costs (in which case City shall pay Contractor the actual costs plus a three percent (3%) profit); or City may elect to purchase the required equipment, software and installation services directly and/or utilize City’s own personnel to perform the installation.
8.05 Gatehouse Account Management and B
illing. Historically, the
Contractor has managed all MDF Gat
ehouse accounts. As of July 1, 2018, the City
assumed responsibility from the Contractor of management of MDF Gatehouse accounts. While the City assumed this management responsibility, the Contractor continues to be responsible for printing and mailing invoices and statements to Gatehouse account holders. The City is responsible for all other management pertaining to the MDF Gatehouse accounts. By June 15, 2018, the Contractor provided any information pertaining to MDF Gatehouse accounts necessary for the City to comprehensively assume the MDF Gatehouse account management functions. The Contractor shall provide timely and adequate responses to any City questions or requests for information pertaining to MDF Gatehouse accounts that are submitted both before and after the City assumes responsibility for the MDF Gatehouse accounts.
While account questions from MDF Gatehouse customers shall be referred to the City after July 1, 2018, the Contractor shall provide customer service to MDF Gatehouse customers that contact the business office or customer service center with general questions or requests for information that are not specific to an individual account.
Additionally, if City representatives are not available to accept in-person customer payments from MDF Gatehouse accounts, Contractor will accept in-person payments EXHIBIT "A"
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for MDF Gatehouse accounts and will then prov
ide the customer payments to the City
for processing.
8.06 Public/Customer Service and A
ccessibility.
A. Business Office and Customer Servi
ce Center. Contractor shall
establish and maintain a business offi
ce at the Materials Diversion Facility (or at a
location in the City) for purposes of carrying out its obligations under this Contract.
Contractor shall also provide a full customer service center within the City limits (not including City-annexed MDF property).
B. Customer Service Center Hours.
Contractor’s business office
and customer service center shall be open t
o the public from 8:30 a.m. to 5 p.m.
Monday through Friday with telephone access available from 8:00 am to 5 p.m. Monday through Friday. The business office and customer service center may be closed on Saturdays, Sundays and holidays as defined.
C. Availability of Representative
. A knowledgeable representative
of the Contractor shall be available at
both the office and customer service center during
office hours to communicate with the City and members of the public in person and by telephone and to assist customers making payment in person. While payments for Collection Accounts will only be taken at the customer service center, the City and the Contractor will work collaboratively to ensure that Gatehouse account payments can be accepted at both the customer service center and business office.
D. Telephone. Contractor shall maintain a telephon
e in operation at
its office during business hours.
Incoming calls will be answered as directed by City.
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84 17650078.3
Contractor shall install telephone equip
ment sufficient to handle the volume of calls
typically experienced on the busiest weekday. Contractor shall also maintain an emergency telephone number for use during other than normal business hours and shall provide that number to City. Contractor shall have a representative, or an answering service to contact such representative, available at the emergency telephone number during hours when the office is closed. Contractor shall arrange for the regular telephone number to be listed in all telephone directories generally distributed in the City and on all Contractor’s bills and invoices.
Contractor must ensure that telephone calls to it from locations within the City are billed as “local calls” by all telephone companies.
Contractor shall establish a direct tie line between the City and its office to allow the City to transfer service calls received by it directly to the Contractor and to accept calls forwarded to it by Contractor.
If City receives complaints that Customers are unable to reach Contractor’s office by phone, or are subject to excessive waiting time “on hold” prior to reaching a customer service representative, City may require that Contractor install additional telephone lines.
E. Correspondence. Contractor shall resp
ond to all written
correspondence from City or custom
ers within five (5) business days.
F. Maps, Schedules, Consumer Inform
ation. Contractor shall
furnish the City with maps and schedules
for all collection routes, and shall update such
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85 17650078.3
maps and schedules whenever a change occurs.
Contractor shall have current maps
and schedules available for inspection by the public at its business office.
In addition, Contractor shall prepare brochures containing information about the collection of MSW, Recyclable Materials and Compostables including:
schedules of collections, curbside procedures, etc. Contractor shall distribute such brochures to the occupants of all Residential Premises and Commercial and Business Establishments at least annually. Brochures shall be revised and distributed if there is any material change in the information and, in any event, at least once each year of the Term, prior to January 1 of each calendar year. Information cards shall also be mailed to City residents or businesses upon request.
Contractor will submit drafts of the maps, schedules and brochures to City prior to distribution and will incorporate City’s comments in the final version distributed to the public.
8.07 Service Complaints. Contractor s
hall be responsible for the prompt and
courteous attention to, and prompt
and reasonable resolution of, all Customer
complaints relating to service and billing. Contractor shall record in a separate log, the format of which is approved by the City, all complaints, noting the name and address of complainant, date and time of complaint, nature of complaint, and nature and date of resolution. This complaint log shall be provided monthly to the City. In addition, Contractor shall compile a summary statistical table of the complaint log (or a copy of the log if requested by City) and submit the table, or copy, to City by the 20th day of each month.
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86 17650078.3
Contractor shall respond to all complaint
s from Customer within eight (8) working
hours of its receipt of notice of the complaint. In particular, if a complaint involves a failure to collect MSW from a Premises, as required by this Contract, Contractor shall collect the MSW in question within such eight (8) hours period, provided it has been placed for collection in accordance with the City’s Municipal Code.
8.08 City’s Right to Direct Termi
nation of Service to Premises. The City
may direct the Contractor to suspend or t
erminate waste collection services provided to
any Premises if the Owner or occupant thereof (or other party responsible for payment) is delinquent in payment of such bills or for other cause as determined by City.
Contractor will promptly implement City directions to suspend or terminate service. City shall indemnify and hold Contractor harmless from any liability or costs associated with Contractor’s suspending or terminating service in response to directions of the City pursuant to this Section.
8.09 Change in Collection Schedule. Cont
ractor shall obtain written approval
from City prior to any change in collec
tion operations which results in a change in the
day on which collection occurs at Residential Premises. Contractor will comply with the requirements in Attachment B regarding notice to customers of changes in operations.
8.10 Report of Accumulation of MSW or U
nauthorized Dumping.
Contractor shall direct its drivers
to note (1) the addresses of any Premises at which
they observe that MSW is accumulating and is not being placed for collection and (2) the address, or other location description, at which MSW has been dumped in an apparently unauthorized manner. Contractor shall deliver the address or description to City within two (2) working days of such observation.
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87 17650078.3
ARTICLE 9. RECORD KEEPING, REPORTING
AND INSPECTIONS
9.01 General. Contractor recognizes that
maintenance of accurate and
complete records of its operations and t
imely submission to City of accurate and
complete reports is an essential aspect of the service to be provided by it under this Contract.
9.02 Record Keeping. Contractor shall
maintain accurate records of (i)
personnel, (ii) equipment, (iii) col
lection operations, (iv) operations of the Materials
Diversion Facility, (v) disposal of MSW and MDF Residue, (vi) customer service, (vii) billing and payment, (viii) sale of Recyclable Materials and Compost, (ix) financial matters, (x) any information necessary to report to any regulating agency, and (xi) other matters in such detail and format necessary to compile the reports required by this Contract, including Attachment R.
9.03 Reporting. Contractor shall compi
le and submit complete and accurate
reports required by this Contract, inc
luding Attachment R, in the format and at the
frequencies specified.
9.04 Inspection by City. The City shall
have the right, but not the obligation,
to observe and inspect all of the Contract
or’s operations involved in providing services
under this Contract to determine whether Contractor is performing in accordance with this Contract and applicable laws and regulations. Contractor shall cooperate fully with such inspections. In connection therewith, the City shall have the right to enter any of Contractor’s facilities, speak to any of Contractor’s employees and receive a response to any inquiries directed to such employees, and review and make copies (at City’s expense), of all of Contractor’s operational and business records related to this EXHIBIT "A"
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Contract. If City so requests, C
ontractor shall make specified personnel available to
accompany City employees on inspections.
City may periodically investigate Contractor’s financial status to determine Contractor’s financial capacity to continue to perform in accordance with this Contract.
Such investigations will be done at the sole expense of City, using such City employees or independent agents as City deems appropriate. Contractor will cooperate during such investigations and will make available for inspection such records as the City, or its agent, may request.
Contractor shall maintain a complete roster of employees providing service under this Contract. The roster shall contain the name, social security number, job classification and such other information as City may require. The City may inspect the roster, and make a copy thereof at its expense, at any time during business hours.
9.05 Compliance Reporting. Contractor
shall submit monthly, quarterly and
annual reports to the City documenting
the disposition of MSW and shall format such
reports so that they may be used by the City for City’s compliance with the reporting requirements of the Act or any other subsequently enacted federal, state or local laws or regulations governing integrated waste management.
9.06 Route Audits. At least once every si
x (6) month period, beginning in
2006, Contractor shall conduct an audit
, during the months of January and July of all
collection routes for MSW, Recyclable Materials, and Compostables. The audit shall include, at a minimum, the route number, identification number of vehicles servicing each route, number and types of accounts serviced by route and by truck, number and sizes of containers collected together with the frequency of collection by route and by EXHIBIT "A"
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truck, weight of MSW, Recyclabl
e Materials, and Compostables by route and by truck,
and any pertinent operational details. Results of the route audit shall be delivered to City in their entirety, including, but not limited to, maps of routes with each route numbered, survey sheets, logs, route lists, forms used to gather information, and the like, within ten (10) working days of completion of the audit, and in no event later than February 20 for the audit conducted in January and August 20 for the audit conducted in July, whether undertaken directly by Contractor or on behalf of Contractor by another party.
9.07 Reporting Information Required by B
ond Indenture. City issued
revenue bonds in 2016, the proceeds of which w
ere used to finance the costs of
acquisition and construction of capital improvements at the Materials Diversion Facility.
The bond indenture requires City to furnish annually to the bond trustee information about the City’s solid waste system. In order to assist the City in satisfying this obligation, Contractor will provide the following financial information and operating data to City in substantially the form and substance in which this information appeared in the official statement for the bonds:
A. The Tons of solid waste (including ref
use, solid waste, recyclables,
and Compostables) collected by Contractor in City.
B. Representative residential and commercial rates, and the amount of decrease or increase from the previous year's rates.
C. A summary of doubtful accounts.
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D. The number of customers and the amount
of revenue by account
type (e.g., residential, commercial, drop box).
E. A list of the 10 largest collection service customers billed by the Contractor on behalf of the City.
F. Audited Financial Statements of Contractor (including the SAS 114 Letter and the SAS 115 Letter, if issued), prepared in accordance with Generally Accepted Accounting Principles and audited in accordance with Generally Accepted Auditing Standards showing the results of Contractor’s operations for City under this Agreement.
Contractor will furnish this information to City on or before March 10 of each year. The information furnished shall cover the immediately preceding calendar year (e.g. in the case of the documents due March 10, 2018, the information will cover calendar year 2017).
As required by federal securities laws, City will make the information described in this section available to the public through deposit in certain publicly- accessible municipal securities information repositories. Accordingly, Contractor agrees that its obligations under this section are necessary and reasonable in order to protect City and its interests, and expressly agrees that monetary damages would be inadequate to compensate City for any breach of Contractor’s obligations under this Section 9.07. Accordingly, Contractor agrees and acknowledges that any such breach or threatened breach will cause irreparable injury to City and that, in addition to any other remedies that may be available, in law, at equity, under this Agreement or otherwise, City shall be entitled to obtain injunctive relief against the breach or EXHIBIT "A"
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threatened breach by Contractor of its
obligations under this section, or the continuation
of any such breach, without the necessary of City proving actual damages.
9.08 Reporting Required by Regulating
Agencies. Contractor will comply
with all reporting and record keeping requir
ements from any regulating agency related
to this Contract, such as reporting to CalRecycle as may be required by the Act.
Contractor will provide City with copies of any such reports submitted, and such reports shall not replace or reduce the Contractor’s responsibility to submit any reports required by this Contract, including Attachment R.
EXHIBIT "A"
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ARTICLE 10. INDEPENDENT CONTRACTOR
10.01 Contractor an Independent Contract
or. In the performance of services
under this Contract, the Contractor
shall be, and is, an independent contractor, and is
not an agent or employee of the City. Contractor has and shall retain the right to exercise full control over the employment, direction, compensation and discharge of all persons assisting Contractor in the performance of Contractor’s services hereunder.
Contractor shall be solely responsible for all matters relating to the payment of its employees, including compliance with social security, withholding and all other regulations governing such matters, and shall be solely responsible for Contractor’s own acts and those of Contractor’s employees and other agents.
10.02 No Partnership or Joint Venture C
reated. Nothing in this Contract shall
be construed as creating a partnership or joi
nt venture between the City and Contractor,
or as giving the City a duty to supervise or control the acts or omissions of any person performing services or work under the Contract.
10.03 No Entitlement to Benefits. Nei
ther Contractor nor its officers,
employees, agents or subcontractors s
hall be entitled to any retirement benefits,
workers’ compensation benefits or any other benefits which accrue to any City employees, and Contractor expressly waives any claim it may have to acquire to such benefits.
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ARTICLE 11. INDEMNITY, INSURANCE,
BOND
11.01 Indemnification. Contractor s
hall indemnify, defend and hold harmless
City, its officers, emplo
yees and agents, from and against any and all loss, liability, penalty, forfeiture, claim, demand, action, proceeding or suit, of any and every kind and description, whether judicial, quasi-judicial or administrative in nature including, but not limited to, injury to and death of any person and damage to property or for contribution or indemnity claimed by third parties (collectively, the “Claims”), arising out of or occasioned in any way by, directly or indirectly, Contractor’s performance of, or its failure to perform, its obligations under this Contract. The foregoing indemnity shall not apply to the extent that the Claim is caused solely by the negligence or intentional misconduct of City, its officers, employees or agents, but shall apply if the Claim is caused by the joint negligence of Contractor or other persons. Upon the occurrence of any Claim, Contractor, at Contractor’s sole cost and expense, shall defend (with attorneys reasonably acceptable to City) City, its officers, employees, and agents.
Contractor’s duty to indemnify and defend shall survive the expiration or earlier termination of this Contract.
11.02 Insurance.
A. Types and Amounts of Coverage. Cont
ractor shall procure from
an insurance company or companies licens
ed to do business in the State of California
and shall maintain in force at all times during the Term the following types and amounts of insurance:
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1. Workers’ Compensation and Employer
’s Liability. Contractor
shall maintain workers’ compensation ins
urance covering its employees in statutory
amounts and otherwise in compliance with the laws of the State of California.
Contractor shall maintain employer’s liability insurance in an amount not less than One Million Dollars ($1,000,000) per accident or disease, with a policy limit of One Million Dollars ($1,000,000). Contractor shall not be obligated to carry workers compensation insurance if (i) it qualifies under California law and continuously complies with all statutory obligations to self-insure against such risks; (ii) furnishes a certificate of Permission to Self Insure issued by the Department of Industrial Relations; and (iii) furnishes updated certificates of Permission to Self Insure periodically to evidence continuous self insurance.
2. Comprehensive General Liability and Autom
obile Liability.
Contractor shall maintain comprehensi
ve general liability insurance with a combined
single limit of not less than Five Million Dollars ($5,000,000) per occurrence and Five Million Dollars ($5,000,000) annual aggregate covering all claims and all legal liability for personal injury, bodily injury, death, and property damage, including the loss of use thereof, arising out of, or occasioned in any way by, directly or indirectly, Contractor’s performance of, or its failure to perform, services under this Contract.
The insurance required by this su bsecti
on shall include the
following coverage:
(i) Premises Operations (including use of owned and non- owned equipment);
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(ii) Products–Completed Operations (incl
uding protection
against liability resulting from use of Recyclable Materials by another person);
(iii) Personal Injury Liability with employment exclusion deleted; (iv) Broad Form Blanket Contractual with no exclusions for bodily injury, personal injury or property damage (including coverage for the indemnity obligations contained herein); (v) Owned, Non-Owned, and Hired Motor Vehicles;
(vi) Broad Form Property Damage; and
(vii) MCS-90 Endorsement as part of automobile liability The comprehensive general liability insurance shall be written on an “occurrence” basis (rather than a “claims made” basis) in a form at least as broad as the most current version of the Insurance Service Office commercial general liability occurrence policy form (CG0001). If occurrence coverage is not obtainable, Contractor must arrange for “tail coverage” on a claims made policy to protect City from claims filed within four years after the expiration or termination of this Contract relating to incidents that occurred prior to such expiration or termination. Any excess or umbrella policies shall be on a “following form” basis.
3. Pollution Liability. Contractor shall m
aintain contractor’s
pollution liability insurance with li
mits in an amount of not less than Two Million Dollars
($2,000,000) per occurrence and Four Million Dollars ($4,000,000) annual aggregate covering claims for on-site, under-site, or off-site bodily injury and property damage as a result of pollution conditions arising out of its operations under this contract.
4. Hazardous Materials Storage and Transport.
Contractor
shall maintain insurance coverage of not l
ess than One Million Dollars ($1,000,000) for
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personal injury, bodily injury and property
damage arising out of the sudden and
accidental release of any hazardous materials or wastes during storage at the Materials Diversion Facility or transport of such materials by vehicles owned, operated or controlled by Contractor in the performance of the services required under this Contract.
5. Physical Damage. Contractor shall m
aintain comprehensive
(fire, theft and collision) physic
al damage insurance covering the vehicles and
equipment, including the biofilter media and processing equipment, used in providing service to City under this Contract, with a deductible or self-insured retention not greater than One Hundred Thousand Dollars ($100,000). Notwithstanding the foregoing, Contractor shall be allowed to self-insure for physical damage to its vehicles provided Contractor provides adequate audited financial information to City and City is reasonably satisfied that Contractor has the financial net worth to cover any losses.
Contractor shall also maintain physical damage insurance covering Recyclable Materials and Recovered Materials against the perils described in Section
6.18.C in an
amount equal to fifty percent (
50%) of the maximum estimated value of Recyclable
Materials and Recovered Materials on site at the Materials Diversion Facility at any one time. The Contractor and City shall each be named as insureds and proceeds of insurance received shall be divided 5% to City and 95% to Contractor for damage to MDF Direct Sale Materials that are processed and sold directly from City MDF as finished product such as compost, gravel, topsoil, chipped wood, and wood mulch; and 70% to City and 30% for damage to Recyclable Materials and all other materials being sold, or planned to be sold into the secondary materials market, including but not limited to, all paper grades, all types of plastics, all types of metals, all biochar, and all glass.
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B. Acceptability of Insureds. The insur
ance policies required by this
section shall be issued by an insurance com
pany or companies admitted to do business
in the State of California, subject to the jurisdiction of the California Insurance Commissioner, and with a rating in the most recent edition of Best’s Insurance Reports of size category VIII or larger and a rating classification of A+ or better.
C. Required Endorsements. Without limi
ting the generality of
Sections 11.02.A and B, the policies shall contain end
orsements in substantially the
following form:
1. Workers’ Compensation and Employer
s’ Liability Policy.
“Thirty (30) days prior written noti
ce shall be given to
the City of Napa in the event of cancellation or non-renewal of this policy. Such notice shall be sent to:
CITY OF NAPA
Finance Department
P.O. Box 660
Napa, CA 94559-0660
Attention: Finance Director
“Insurer waives all right of subrogation against City
and its officers and employees for injuries or illnesses arising from work performed for City.”
2. Comprehensive General Liability Polic
y; Environmental
Liability Policy; Hazardous Materi
als Policy.
(i) “Thirty (30) days’ prior written no
tice shall be given to the
City of Napa in the event of cancellation, reduction of coverage, or non-renewal of this policy. Such notice shall be sent to:
CITY OF NAPA
Finance Department
P.O. Box 660
Napa, CA 94559-0660
Attention: Finance Director
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(ii) “The City of Napa, its office
rs, employees, and agents, are
additional insureds on these policies.”
(iii) “This policy shall be considered primary insurance as respects any other valid and collectible insurance maintained by the City of Napa, including any self-insured retention or program of self-insurance, and any other such insurance shall be considered excess insurance only.”
(iv) “Inclusion of the City of Napa as an insured shall not affect the City’s rights as respects any claim, demand, suit or judgment brought or recovered against the Contractor. This policy shall protect Contractor and the City in the same manner as though a separate policy had been issued to
each, but this shall not operate to increase the company’s liability as set forth in the policy beyond the amount shown or to which the company would have been liable if only one party had been named as an insured.”
3. Physical Damage Policy (applies only if
Contractor uses
insurance as a method of cover age).
(i) Notice of cancellation, reductio
n in coverage or non-renewal,
as provided in Subsection C.2(i)).
(ii) Cross liability endorsement, as provided in Subsection C.2(iv).
(iii) Waiver of subrogation against City.
(iv) Proceeds to be paid to City, to the extent of loss of or damage to Recyclable Materials.
D. Delivery of Proof of Coverage. N
o later than sixty (60) days
before the commencement of operati
ons (i.e., on or before August 1, 2005), Contractor
furnished City one or more certificates of insurance on a standard ACORD form substantiating that each of the coverages required hereunder are in force, in form and substance satisfactory to City. The certificates showed the type and amount of coverage, effective dates and dates of expiration of policies and shall be accompanied by all required endorsements. Contractor furnished renewal certificates to City to demonstrate maintenance of the required coverages throughout the Term.
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No later than thirty (30) days before the E
ffective Date, October 18, 2022,
of this Contract, Contractor shall furnish renewal certificates to City to demonstrate maintenance of the required coverages throughout the Term. Contractor shall continue to furnish renewal certificates to City to demonstrate maintenance of the required coverages throughout the Term. If City requests, copies of each policy, together with all endorsements, shall also be promptly delivered to City.
E. Other Insurance Requirements
1. In the event performance of any services
is delegated to a
subcontractor, Contractor shall require such subcontractor to carry the coverage and comply with the terms set forth in this Section 11.02. The liability insurance required by Subsection 11.02.A.2 shall cover all subcontractors or the subcontractor must furnish evidence of insurance provided by it meeting all of the requirements of this Section
11.02. 2. Contractor shall comply with all requirements of the insurers issuing policies. The carrying of insurance shall not relieve Contractor from any obligation under this Contract, including those imposed by Section 11.01. If any claim is made by any third person against Contractor or any subcontractor on account of any occurrence related to this Contract, Contractor shall promptly report the facts in writing to the insurance carrier and to the City.
3. If Contractor fails to procure and maintain any insurance required by this Contract, City may take out and maintain, at Contractor’s expense, such EXHIBIT "A"
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insurance as it may deem proper and deduct
the cost thereof from any monies due
Contractor. Alternatively, the City may treat the failure as a Contractor Default.
4. City is not responsible for payment of premiums for or deductibles under any required insurance coverages. City is responsible to obtain insurance for and pay the premium for the organics pre-processing equipment which the City has previously purchased and installed.
11.03 Faithful Performance Bond. On or
before January 4, 2005, Contractor
filed with City a bond securing the Contrac
tor’s faithful performance of its obligations
under this Contract. The principal sum of the bond was for Five Million Dollars ($5,000,000) in the form set out in Attachment S. The bond was executed by a surety admitted to issue surety bonds in the State of California, regulated by the California Insurance Commissioner and with a financial condition and record of service satisfactory to City.
The bond was extended, or replaced by a new bond i
n the same principal sum,
for the same term (i.e., twenty-four (24) months) and in the same form, bi-annually thereafter and the term of the current bond shall be not less than twenty-four (24) months, or until December 31, 2031, whichever occurs first.
No later than thirty (30) days before the Effective Date, Contractor must provide evidence of a bond that is in effect and secures the Contractor’s faithful performance of its obligations under this Contract. The principal sum of the bond shall be for Five Million Dollars ($5,000,000) and the bond will continue to adhere to the same requirements as listed above.
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Not less than ninety (90) days before the expi
ration of the bond, the Contractor
shall furnish either a replacement bond or a continuation certificate substantially in the form attached as Attachment S-2, executed by the surety.
It is the intention of this Section that there be in full force and effect at all times a bond securing the Contractor’s faithful performance of the Contract, throughout its Term.
11.04 Alternative Security. City may
, in its sole discretion, allow Contractor to
provide alternative security in the amo
unt set forth in Section 11.03, in the form of (a) a
prepaid irr
evocable standby letter of credit in form and substance satisfactory to City and approved by the City Attorney and issued by a financial institution acceptable to City, or (b) a certificate of deposit in the name of the City with a term satisfactory to City and with a financial institution acceptable to City.
11.05 Hazardous Waste Indemnificat
ion. Contractor shall indemnify, defend
with Counsel approved by the City, protect
and hold harmless the Indemnitees against
all claims, of any kind whatsoever paid, incurred or suffered by, or asserted against Indemnitees arising from or attributable to any repair, cleanup or detoxification, or preparation and implementation of any removal, remedial, response, closure or other plan (regardless of whether undertaken due to governmental action) concerning any Hazardous Wastes at any place where Contractor stores or disposes of Hazardous Wastes pursuant to this Contract except to the extent that Contractor can demonstrate that such claim arises solely from Hazardous Wastes collected and deposited by City employees acting within the ordinary course and scope of their employment. The foregoing indemnity is intended to operate as an agreement pursuant to Section 107(e) EXHIBIT "A"
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of the Comprehensive Environmental Res
ponse, Compensation and Liability Act,
(“CERCLA”), 42 U.S.C. Section 9607(e), and California Health and Safety Code Section 25364, to defend, protect, hold harmless and indemnify Indemnitees from liability.
11.06 Integrated Waste Management A
ct Indemnification. Contractor agrees
to indemnify and hold harmless the Inde
mnitees against all fines and/or penalties
imposed by CalRecycle or the Local Enforcement Agency (LEA): a) based on Contractor’s failure to comply with laws, regulations or permits issued or enforced by the CalRecycle or the LEA; b) caused or contributed to by the Contractor’s failure to perform obligations under this Contract. This indemnity obligation is subject to the limitations and conditions in Public Resource Code Section 40059.1 but is enforceable to the maximum extent allowable by that Section.
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ARTICLE 12. COMPENSATION TO CONTR
ACTOR
12.01 General. The payments provided for i
n this Article are the full, entire and
complete compensation due to Contractor
from City for furnishing all labor, equipment,
materials and supplies and all other things necessary to perform all of the services required by this Contract in the manner and at the time prescribed, and for fulfilling all of its obligations under this Contract, including but not limited to the collection of MSW, Recyclable Materials, Food Scraps, Yard Trimmings, Wood Material and Construction and Demolition Debris in accordance with Article 4, the transportation of such materials in accordance with Article 5, and the operation of the Materials Diversion Facility in accordance with Article 6. Such payments shall include all costs for the items mentioned above and also for all taxes (other than a possessory interest tax), insurance, bonds, overhead, profit and all other costs necessary or appropriate to perform the services in accordance with this Contract. Based upon its investigation and operating experience, Contractor warrants and guarantees that the capital and operating costs in Attachment T, Tables 1 through 16 (described more fully below) include all costs required to perform all the duties and responsibilities required by the 2022 Contract Amendment.
12.02 Summary of Contactor Compensat
ion. City will pay Contractor base
operating and capital cost payments as des
cribed in Section 12.03. In addition, City will
pay Contrac
tor various other payments throughout each calendar year for additional services not included in the base operating and capital cost payment. Table 12.1 below summarizes all of the anticipated payments City will make to Contractor.
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12.03 Operating & Capital Cost Pa
yments. City will pay Contractor the
amount provided in this Section to cover
the operating and capital costs incurred in
performing the services required by this Contract, monthly in arrears. The Operating and Capital Cost Payment for the periods described below will be, or will be calculated, as follows:
A. January 1, 2018 through December 31, 201
8. The Operating and
Capital Cost Payment was Ten Mill
ion, Eight Hundred Fifty Eight Thousand, Four
Hundred Twenty and 74/100 dollars ($10,858,420.74) which is equal to the annual Operating and Capital Cost Payment for calendar year 2018, as shown on Attachment T-1. This amount is based on the annual Operating and Capital Cost Payment with the CASP baseline throughput payment of One Hundred Twenty Nine Thousand and 67/100 dollars ($129,000.67) deducted from the baseline Operating and Capital Cost Payment for calendar year 2018. The amount also takes into account the annual reduction of One Hundred Twenty Five Thousand dollars ($125,000) for economies of scale achieved due to NRWS’s sister company, NCRWS, being awarded the solid waste and recycling contract for the County of Napa for the same Term as this Agreement.
B. In addition to the baseline Operating and C
apital Cost Payment for
calendar year 2018, City paid Contractor One Million, One Hundred Six Thousand, Two Hundred Sixty Six and 72/100 dollars ($1,106,266.72) for Fuel and Electricity.
C. For calendar year 2018, City paid Contractor Two Hundred Twelve Thousand, Four Hundred Fifty One and 46/100 dollars ($212,451.46) for operating expenses, and Fifty One Thousand, Four Hundred Sixty Five dollars ($51,465) as EXHIBIT "A"
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shown in Attachment T-5B for capital
costs associated with Commercial Food Scrap
Collection Program.
D. For calendar year 2018, City paid Contractor Five Thousand, Eight Hundred Fifty Seven and 97/100 dollars ($5,857.97) for operating expenses, and zero dollars ($0) as shown in Attachment T-6B for capital costs associated with Recycle More Program.
E. For calendar year 2018, City paid Contractor One Hundred Forty Six Thousand, Six Hundred Ten dollars ($146,610) for City’s seventy (70) percent share of operating expenses of Two Hundred Nine Thousand, Four Hundred Forty Three dollars ($209,443) as shown in Attachment T-7 for operating costs associated with four “Partnership” sorting positions.
F. For calendar year 2018, City paid Contractor Ninety Three Thousand, One Hundred Eight and 20/100 dollars ($93,108.20) for City’s seventy (70) percent share of capital expenses of Seventy Eight Thousand, Seventy Four and 71/100 dollars ($78,074.71) as shown in Attachment T-9A and for City’s seventy (70) percent share of operating costs of Fifty Four Thousand, Nine Hundred Thirty Seven dollars ($54,937) as shown in Attachment T-9B for operating costs associated with City- approved Clean MRF Upgrade Options.
G. For the first half of calendar year 2018, the City paid Contractor Twenty Six Thousand, Seven Hundred Eighteen and 50/100 dollars ($26,718.50) for half of annual operating expenses of Fifty Three Thousand, Four Hundred Thirty Seven dollars ($53,437) and Four Thousand, Four Hundred Twenty Two and 50/100 dollars ($4,422.50) for half of the annual Eight Thousand, Eight Hundred Forty Five dollars EXHIBIT "A"
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($8,845) for annual fuel costs as show
n in Attachment T-10A associated with new
Commercial Sunday Collection Service that began on July 1, 2018.
H. Additional One-Time Supplemental P
ayments in 2018. In
addition to the payments discussed a
bove, by August 31, 2018 the City paid Contractor
(a) a One-Time Supplemental Payment for additional 95% of Direct Materials Sales between January 1, 2018 and March 31, 2018, capital and operating costs from July 1, 2017 through May 31, 2018, Fuel and Electricity Payment between January 1, 2017 through December 31, 2017, Commercial Food Scrap Route between January 1, 2018 through March 31, 2018, 70% of MRF Upgrade between January 1, 2018 through March 31, 2018, Recycle More Route between January 1, 2018 through March 31, 2018, 70% of the Partnership Program between January 1, 2018 through March 31, 2018, NVUSD costs between January 1, 2018 through March 31, 2018, and Allowance- Based programs January 1, 2018 through March 31, 2018 in the amount of One Million, Four Hundred Eighty Four Thousand, Nine Hundred Sixty One and 40/100 dollars ($1,484,961.40) described in Table 12.1; and (b) an “Additional Payment” for Over Baseline Tons processed during the period from January 1, 2017 through December 31, 2017 in the amount of Two Million, Eight Hundred Thirty Six Thousand, One Hundred Five and 01/100 dollars ($2,836,105.01) pursuant to Section
12.05. I. Calendar Year 2019 (Year 2). The Operating and Capi tal Cost
Payment for calendar year 2019 was Eleven M
illion, Four Hundred Sixty Five
Thousand, Three Hundred Seventy Seven and 66/100 dollars ($11,465,377.66) which is equal to the annual Operating and Capital Cost Payment for calendar year 2019, as shown on Attachment T-1. This amount is based on the annual Operating and Capital EXHIBIT "A"
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Cost Payment with the CASP baseli
ne throughput payment of One Hundred Thirty Two
Thousand, Four Hundred Fourteen and 96/100 dollars ($132,414.96) deducted from the baseline Operating and Capital Cost Payment for calendar year 2019 as operation of the Covered Aerated Static Pile (CASP) was not yet in operation during 2019. The amount also takes into account the annual reduction of One Hundred Twenty Five Thousand dollars ($125,000) for economies of scale achieved due to NRWS’s sister company, NCRWS, being awarded the solid waste and recycling contract for the County of Napa for the same Term as this Agreement.
J. In addition to the baseline Operating and Capital Cost Payment for calendar year 2019, City paid Contractor One Million, Ninety Eight Thousand, Two Hundred Twenty-Four and 57/100 dollars ($1,098,224.57) for Fuel and Electricity as shown in Attachment T-1. In addition, the City made a one-time supplemental payment in the amount of One Hundred Forty Seven Thousand, Six Hundred Sixty Three and 61/100 dollars ($147,663.61) for additional Fuel and Electricity costs incurred by Contractor in 2019 (the payment included the 3% base profit margin).
K. For calendar year 2019, City paid Contractor Two Hundred Seventeen Thousand, Eight Hundred Twenty Six and 31/100 dollars ($217,826.31) for operating expenses associated with Commercial Food Scrap Collection Program as shown in Attachment T-5A as adjusted by annual labor and non-labor contract inflation escalators.
L. For calendar year 2019, City paid Contractor Six Thousand Four and 42/100 dollars ($6,004.42) for operating expenses as shown in Attachment T-6A associated with Recycle More Program.
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M. For calendar year 2019, City paid Contrac
tor One Hundred Fifty
One Thousand, Six Hundred Ninety and 84/100 dollars ($151,690.84) for City’s seventy (70) percent share of operating expenses of Two Hundred Sixteen Thousand, Seven Hundred One and 20/100 dollars ($216,701.20) as shown in Attachment T-7 for operating costs associated with four “Partnership” sorting positions.
N. For calendar year 2019, City paid Contractor Fifty Three Thousand, Twenty Three and 40/100 dollars ($53,023.40) for City’s seventy (70) percent share of capital expenses of Seventy Five Thousand, Seven Hundred Forty-Seven and 71/100 dollars ($75,747.71) as shown in Attachment T-9A and Thirty Nine Thousand, Four Hundred Seventeen and 30/100 dollars ($39,417.30) for City’s seventy (70) percent share of operating costs of Fifty Six Thousand, Three Hundred Ten and 43/100 dollars ($56,310.43) as shown in Attachment T-9B for operating costs associated with City- approved Clean MRF Upgrade Options.
O. For calendar year 2019, City paid Contractor Fifty Five Thousand, Two Hundred Ninety Five and 30/100 dollars ($55,295.30) for annual operating expenses of and Eight Thousand, Eight Hundred Forty Five dollars ($8,845.00) for half of annual Seventeen Thousand, Six Hundred Ninety dollars ($17,690.00) for annual fuel costs as shown in Attachment T-10A associated with the Commercial Sunday Collection Service.
P. Calendar Year 2020 (Year 3). The Operating and Capi tal Cost
Payment for calendar year 2020 was Twelv
e Million, Nine Hundred Seventy Seven
Thousand, Eight Hundred Fifty-Three and 06/100 dollars ($12,977,853.06) which is equal to the annual Operating and Capital Cost Payment for calendar year 2020, as EXHIBIT "A"
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shown on Attachment T-1. This amount is
based on the annual Operating and Capital
Cost Payment with the CASP baseline throughput payment of Thirteen Million, One Hundred Five Thousand, Eight Hundred Fifty Three and 06/100 dollars ($13,105,853.06). The amount also takes into account the annual reduction of One Hundred Twenty Five Thousand dollars ($125,000) for economies of scale achieved due to NRWS’s sister company, NCRWS, being awarded the solid waste and recycling contract for the County of Napa for the same Term as this Agreement. The amount also takes into account a Five Hundred dollar ($500) per month lease from the City to Contractor for the City's second floor office at the MDF administration building beginning on July 1, 2020 and ending on December 31, 2024, unless the parties agree to an extension. The lease rate will be increased by 2.5% annually beginning on January 1, 2022, subject to the terms of the lease. The City reserves the right to reoccupy the upstairs office space and cease the rental with a 90-day advance notice to Contractor.
As of the execution of the 2022 amendment, the City has paid the Contractor Twelve Million, Ninety Two Thousand, Seven Hundred Ninety Two dollars ($12,092,792). By October 31, 2022, the City will pay Contractor a One-Time Supplemental Payment of Nine Hundred Forty-Four Thousand, Three Hundred Thirty-Eight and 90/100 dollars ($944,338.90) for the first year of full CASP and Stormwater operations (which includes 3% Base Profit Margin and interest set at the LAIF rate of 3.24%), which the City previously agreed to pay Contractor, but the parties were unable to quantify because the facilities had not yet been built or permitted.
Q. In addition to the baseline Operating and Capital Cost Payment for calendar year 2020, City paid Contractor One Million, Two Hundred Twenty Two EXHIBIT "A"
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Thousand, One Hundred Fifty Eight and 5
2/100 dollars ($1,222,158.52) for Fuel and
Electricity as shown in Attachment T-1. In addition, the Contractor provided a credit to the City for overpayment by City based on actual Fuel and Electricity costs during 2020 in the amount of Thirty-Eight Thousand, Five Hundred Nineteen and 52/100 dollars ($38,519.52).
R. For calendar year 2020, City paid Contractor Two Hundred Sixteen Thousand, Ten and 43/100 dollars ($216,010.43) for operating expenses associated with Commercial Food Scrap Collection Program as shown in Attachment T-5A as adjusted by annual labor and non-labor contract inflation escalators.
S. For calendar year 2020, City paid Contractor Six Thousand, One Hundred Fifty Four and 53/100 dollars ($6,154.53) for operating expenses as shown in Attachment T-6A associated with Recycle More Program.
T. For calendar year 2020, City paid Contractor One Hundred Fifty Six Thousand, Nine Hundred Forty Eight and 24/100 dollars ($156,948.24) for City’s seventy (70) percent share of operating expenses of Two Hundred Twenty Four Thousand, Two Hundred Eleven and 77/100 dollars ($224,211.77) as shown in Attachment T-7 for operating costs associated with four “Partnership” sorting positions.
U. For calendar year 2020, City paid Contractor Ninety One Thousand, Seven Hundred Thirty Two and 83/100 dollars ($91,732.83) for City’s seventy (70) percent share of capital expenses of Seventy Three Thousand, Three Hundred Twenty Eight and 71/100 dollars ($73,328.71) as shown in Attachment T-9A and for City’s seventy (70) percent share of operating costs of Fifty Seven Thousand, EXHIBIT "A"
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Seven Hundred Eighteen and 19/100 dollars ($57,
718.19) as shown in Attachment T-9B
for operating costs associated with City-approved Clean MRF Upgrade Options.
V. For calendar year 2020, City paid Contractor Fifty Seven Thousand, Two Hundred Eighteen and 33/100 dollars ($57,218.33) for annual operating expenses as shown in Attachment T-10A associated with the Commercial Sunday Collection Service.
W. Calendar Year 2021 (Year 4). The Operating and Capital Cost
Payment for calendar year 2021 was Thirt
een Million, Two Hundred Eighty Thousand,
Seven Hundred Forty Eight and 25/100 dollars ($13,280,748.25) which is equal to the annual Operating and Capital Cost Payment for calendar year 2021, as shown on Attachment T-1. This amount is based on the annual Operating and Capital Cost Payment with the CASP baseline throughput payment of Thirteen Million, Four Hundred Eleven Thousand, Seven Hundred Forty Eight and 25/100 dollars ($13,411,748.25).
The amount also takes into account the annual reduction of One Hundred Twenty Five Thousand dollars ($125,000) for economies of scale achieved due to NRWS’s sister company, NCRWS, being awarded the solid waste and recycling contract for the County of Napa for the same Term as this Agreement. The amount also takes into account a Five Hundred dollar ($500) per month lease from the City to Contractor for the City's second floor office at the MDF administration building beginning on July 1, 2020 and ending on December 31, 2024, unless the parties agree to an extension.
X. In addition to the baseline Operating and C
apital Cost Payment for
calendar year 2021, City paid Contractor One Million, One Hundred Eighty Eight Thousand, Five Hundred Twenty Two and 14/100 dollars ($1,188,522.14) for Fuel and EXHIBIT "A"
PROPOSED 2022 CONTRACT AMENDMENT
(10/18/2022 VERSION)
112
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Electricity as shown in Attachment
T-1. In addition, the City made a one-time
supplemental payment in the amount of One Hundred Eighty Six Thousand, Seven Hundred Ten and 47/100 dollars ($186,710.47) for additional Fuel and Electricity costs incurred by Contractor in 2021 (the payment included the 3% base profit margin).
Y. For calendar year 2021, City paid Contractor Two Hundred Twenty Eight Thousand, Five Hundred Fifty Seven dollars ($228,557) for operating expenses associated with Commercial Food Scrap Collection Program as shown in Attachment T5A as adjusted by annual labor and non-labor contract inflation escalators.
Z. For calendar year 2021, City paid Contractor Six Thousand, Three Hundred Eight and 39/100 dollars ($6,308.39) for operating expenses as shown in Attachment T-6A associated with Recycle More Program.
AA. For calendar year 2021, City paid Contractor One Hundred Sixty Two Thousand, Three Hundred Eighty Eight and 36/100 dollars ($162,388.36) for City’s seventy (70) percent share of operating expenses of Two Hundred Thirty One Thousand, Nine Hundred Eighty Three and 37/100 dollars ($231,983.37) as shown in Attachment T-7 for operating costs associated with four “Partnership” sorting positions.
BB. For calendar year 2021, City paid Contractor Ninety Thousand, Nine Hundred Eighty Three and 10/100 dollars ($90,983.10) for City’s seventy (70) percent share of capital expenses of Seventy Thousand, Eight Hundred Fourteen and 71/100 dollars ($70,814.71) as shown in Attachment T-9A and for City’s seventy (70) percent share of operating costs of Fifty Nine Thousand, One Hundred Sixty One and 14/100 dollars ($59,161.14) as shown in Attachment T-9B for operating costs associated with City-approved Clean MRF Upgrade Options.
EXHIBIT "A"
PROPOSED 2022 CONTRACT AMENDMENT
(10/18/2022 VERSION)
113
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CC. For calendar year 2021, City paid Contract
or Fifty Nine Thousand,
Two Hundred Eight and 36/100 dollars ($59,208.36) for annual operating expenses as shown in Attachment T-10A associated with the Commercial Sunday Collection Service.
DD. Additional One-Time Supplemental Paym
ent in 2021. By
October 31, 2022, the City will pay
Contractor a One-Time Supplemental Payment of
Nine Hundred Thirty-Five Thousand, Three Hundred Fifty-Six dollars and 55/100 dollars ($935,356.55) for the second year of full CASP and Stormwater operations and related capital improvements (which includes 3% base profit margin), which the City previously agreed to pay Contractor, but the parties were unable to quantify because the facilities had not yet been built or permitted.
EE. Calendar Year 2022 (Year 5). The Operating and C
apital Cost
Payment for calendar year 2022 will be Thi
rteen Million, Five Hundred Fifty Two
Thousand, Three Hundred Sixty Eight and 34/100 dollars ($13,552,368.34) which is equal to the annual Operating and Capital Cost Payment for calendar year 2021, as shown on Attachment T-1. This amount is based on the annual Operating and Capital Cost Payment with the CASP baseline throughput payment of Thirteen Million, Six Hundred Eighty Three Thousand, Five Hundred Eighteen and 34/100 dollars ($13,683,518.34). The amount also takes into account the annual reduction of One Hundred Twenty Five Thousand dollars ($125,000) for economies of scale achieved due to NRWS’s sister company, NCRWS, being awarded the solid waste and recycling contract for the County of Napa for the same Term as this Agreement. The amount also takes into account a Five Hundred Twelve and 50/100 dollar ($512.50) per month lease from the City to Contractor for the City's second floor office at the MDF administration EXHIBIT "A"
PROPOSED 2022 CONTRACT AMENDMENT
(10/18/2022 VERSION)
114
17650078.3
building beginning on July 1, 2020 and ending on Decem
ber 31, 2024, unless the
parties agree to an extension.
FF. In addition to the baseline Operating and Capital Cost Payment for calendar year 2022, on a monthly basis, the City will pay the Contractor 1/12 of the annual total Fuel and Electricity cost for 2021 which is One Million, Three Hundred Seventeen Thousand, Seventy and 73/100 dollars ($1,317,070.73) as shown in Attachment T-1. The annual total Fuel and Electricity cost for 2021 is calculated based on the actual total Fuel and Electricity costs from October 2020 through September 2021. At the end of 2022, the parties will review the Contractor's actual documented costs (as verified by the City) for Fuel and Electricity costs incurred during 2022 and either (a) the City will make a one-time additional payment to the Contractor for additional Fuel and Electricity costs incurred by Contractor, or (b) the Contractor will provide a credit to the City for overpayment by City based on actual Fuel and Electricity costs during 2022. The payment will be made or credit applied during the first quarter of 2023.
GG. For calendar year 2022, City will pay Contractor Two Hundred Thirty Four Thousand, Four Hundred Ninety Five and 53/100 dollars ($234,495.53) for operating expenses associated with Commercial Food Scrap Collection Program as shown in Attachment T-5A as adjusted by annual labor and non-labor contract inflation escalators.
HH. For calendar year 2022, City will pay Contractor Six Thousand, Four Hundred Sixty Six and 10/100 dollars ($6,466.10) for operating expenses as shown in Attachment T-6A associated with Recycle More Program.
EXHIBIT "A"
PROPOSED 2022 CONTRACT AMENDMENT
(10/18/2022 VERSION)
115
17650078.3
II. For calendar year 2022, City will pay C
ontractor One Hundred Sixty
Eight Thousand, Seventeen and 55/100 dollars ($168,017.55) for City’s seventy (70) percent share of operating expenses of Two Hundred Forty Thousand, Twenty Five and 07/100 dollars ($240,025.07) as shown in Attachment T-7 for operating costs associated with four “Partnership” sorting positions.
JJ. For calendar year 2022, City will pay Contractor Ninety Thousand, One Hundred Eighty Seven and 92/100 dollars ($90,187.92) for City’s seventy (70) percent share of capital expenses of Sixty Eight Thousand, One Hundred Ninety Nine and 71/100 dollars ($68,199.71) as shown in Attachment T-9A and for City’s seventy (70) percent share of operating costs of Sixty Thousand, Six Hundred Forty and 17/100 dollars ($60,640.17) as shown in Attachment T-9B for operating costs associated with City-approved Clean MRF Upgrade Options.
KK. For calendar year 2022, City will pay Contractor Sixty One Thousand, Two Hundred Sixty Seven and 73/100 dollars ($61,267.73) for annual operating expenses as shown in Attachment T-10A associated with the Commercial Sunday Collection Service.
LL. Additional One-Time Supplemental Pay
ment in 2022. By
October 31, 2022, the City will pay
Contractor a One-Time Supplemental Payment of
Seventy Four Thousand, Nine Hundred Ninety Six and 68/100 dollars ($74,996.68) per month (which includes 3% Base Profit Margin) for each month prior to the execution of the 2022 contract amendment for the third year of CASP and Stormwater operations and related capital improvements.
EXHIBIT "A"
PROPOSED 2022 CONTRACT AMENDMENT
(10/18/2022 VERSION)
116
17650078.3
MM. Calendar 2023 (Year 6). The Operating and C
apital Cost Payment
for calendar year 2023 will be calculated as
follows:
Labor related costs as adjusted for 2022 wi
ll be multiplied by one
plus three point five percent (1.035).
On a monthly basis, the City will pay the Contractor 1/12 of the annual total Fuel and Electricity cost for 2022, which is calculated based on the actual total Fuel and Electricity costs from October 2021 through September 2022. At the end of 2023, the parties will review the Contractor's actual documented costs (as verified by the City) for Fuel and Electricity costs incurred during 2023 and either (a) the City will make a one-time additional payment to the Contractor for additional Fuel and Electricity costs incurred by Contractor, or (b) the Contractor will provide a credit to the City for overpayment by City based on actual Fuel and Electricity costs during 2023. The payment will be made or credit applied during the first quarter of 2024.
Starting on January 1, 2023, and annually thereafter, the City will pay Contractor an additional One Hundred Thousand dollars ($100,000) for Stormwater Solutions contract costs for industrial stormwater treatment services. This non-labor operating cost.
Starting in calendar year 2024, this cost will subject to the one plus EXHIBIT "A"
PROPOSED 2022 CONTRACT AMENDMENT
(10/18/2022 VERSION)
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two point five percent (1.025) escalator
described in the next
paragraph.
All other non-labor operating costs as adjusted for calendar year 2022 will be multiplied by one plus two point five percent (1.025). If the Non-Labor Index exceeds 5% for the twelve-month period ending on September 30, 2022, each party will be responsible for 50% of all the increase in excess of 5%. For example, if the Non- Labor Index is 8% to be applied to calendar year 2023, then the City would pay Contractor an additional 1.5% (50% above 5%) for all non-labor cost categories in Attachment T-1 and the adjustment factor would be increased from 1.025 (2.5%) to 1.04 (4%) for that given year.
Capital costs will be as shown on Attachment T.
The City's monthly lease to the Contractor for the City's second floor office at the MDF administration building ending on December 31, 2024 unless the parties agree to an extension. The lease rate of Five Hundred dollars
($500 per month will be increased by 2.5%
annual
ly beginning on January 1, 2022.
Compensation to Contractor will al
so be adjusted pursuant to the
Reconciliation Review Process conducted during calendar year 2022 as described in Attachment U and U-1.
EXHIBIT "A"
PROPOSED 2022 CONTRACT AMENDMENT
(10/18/2022 VERSION)
118
17650078.3
The Operating and Capital Cos t Paym
ent for calendar year 2023 is
therefore the sum of:
Labor Related Costs (Adjusted)
Fuel and Energy Costs (Compared to Actuals)
Other operating Costs (Adjusted)
Capital Costs (Per Attachment T)
MDF City Office Space Lease
Reconciliation Review Process
NN. Calendar Year 2024 (Year 7). The Operating and Capital Cost Payment for calendar year 2024 will be calculated as follows:
Labor related costs as adjusted for 2023 will be multiplied by one plus three point five percent (1.035).
On a monthly basis, the City will pay the Contractor 1/12 of the annual total Fuel and Electricity cost for 2023, which is calculated based on the actual total Fuel and Electricity costs from October 2022 through September 2023. At the end of 2024, the parties will review the Contractor's actual documented costs (as verified by the City) for Fuel and Electricity costs incurred during 2024 and either (a) the City will make a one-time additional payment to the Contractor for additional Fuel and Electricity costs incurred by Contractor, or (b) the Contractor will provide a credit to the City for overpayment by City based on actual Fuel and Electricity costs EXHIBIT "A"
PROPOSED 2022 CONTRACT AMENDMENT
(10/18/2022 VERSION)
119
17650078.3
during 2024. The payment will be made or
credit applied during the
first quarter of 2025.
All other non-labor operating costs as adjusted for calendar year 2023 will be multiplied by one plus two point five percent (1.025). If the Non-Labor Index exceeds 5% for the twelve-month period ending on September 30, 2023 each party will be responsible for 50% of all the increase in excess of 5%. For example, if the Non- Labor Index is 8% to be applied to calendar year 2024, then the City would pay Contractor an additional 1.5% (50% above 5%) for all non-labor cost categories in Attachment T-1 and the adjustment factor would be increased from 1.025 (2.5%) to 1.04 (4%) for that given year.
Capital costs will be as shown on Attachment T.
The City's monthly lease to the Contractor for the City's second floor office at the MDF administration building ending on December 31, 2024 unless the parties agree to an extension. The lease rate of Five Hundred dollars
($500) per month will be increased by 2.5%
annual
ly beginning on January 1, 2022.
Compensation to Contractor will al
so be adjusted pursuant to the
Reconciliation Review Process conducted during calendar year 2024 as described in Attachment U and U-1.
EXHIBIT "A"
PROPOSED 2022 CONTRACT AMENDMENT
(10/18/2022 VERSION)
120
17650078.3
The Operating and Capital Cos t Paym
ent for calendar year 2024 is
therefore the sum of:
Labor Related Costs (Adjusted)
Fuel and Energy Costs (Compared to Actuals)
Other operating Costs (Adjusted)
Capital Costs (Per Attachment T)
MDF City Office Space Lease
Reconciliation Review Process
OO. Calendar Year 2025 (Year 8). The Operating and Capital Cost Payment for calendar year 2025 will be calculated as follows:
Labor related costs as adjusted for 2024 will be multiplied by one plus three point five percent (1.035).
On a monthly basis, the City will pay the Contractor 1/12 of the annual total Fuel and Electricity cost for 2024, which is calculated based on the actual total Fuel and Electricity costs from October 2023 through September 2024. At the end of 2025, the parties will review the Contractor's actual documented costs (as verified by the City) for Fuel and Electricity costs incurred during 2024 and either (a) the City will make a one-time additional payment to the Contractor for additional Fuel and Electricity costs incurred by Contractor, or (b) the Contractor will provide a credit to the City for overpayment by City based on actual Fuel and Electricity costs EXHIBIT "A"
PROPOSED 2022 CONTRACT AMENDMENT
(10/18/2022 VERSION)
121
17650078.3
during 2025. The payment will be made or c
redit applied during the
first quarter of 2026.
All other non-labor operating costs as adjusted for calendar year 2024 will be multiplied by one plus two point five percent (1.025). If the Non-Labor Index exceeds 5% for the twelve-month period ending on September 30, 2024 each party will be responsible for 50% of all the increase in excess of 5%. For example, if the Non- Labor Index is 8% to be applied to calendar year 2024, then the City would pay Contractor an additional 1.5% (50% above 5%) for all non-labor cost categories in Attachment T-1 and the adjustment factor would be increased from 1.025 (2.5%) to 1.04 (4%) for that given year.
Capital costs will be as shown on Attachment T.
The City's monthly lease to the Contractor for the City's second floor office at the MDF administration building ending on December 31, 2024 unless the parties agree to an extension. The lease rate of Five Hundred dollars ($500) per month will be increased by 2.5% annually beginning on January 1, 2022.
Compensation to Contractor will al
so be adjusted pursuant to the
Reconciliation Review Process conducted during calendar year 2024 as described in Attachment U and U-1.
EXHIBIT "A"
PROPOSED 2022 CONTRACT AMENDMENT
(10/18/2022 VERSION)
122
17650078.3
The Operating and Capital Cos t Paym
ent for calendar year 2025 is
therefore the sum of:
Labor Related Costs (Adjusted)
Fuel and Energy Costs (Compared to Actuals)
Other operating Costs (Adjusted)
Capital Costs (Per Attachment T)
MDF City Office Space Lease (if lease is extended)
Reconciliation Review Process
PP. Calendar Year 2026 (Year 9). The Operating and Capital Cost Payment for calendar year 2026 will be calculated as follows:
Labor related costs as adjusted for 2025 will be multiplied by one plus three point five percent (1.035).
On a monthly basis, the City will pay the Contractor 1/12 of the annual total Fuel and Electricity cost for 2025, which is calculated based on the actual total Fuel and Electricity costs from October 2024 through September 2025. At the end of 2026, the parties will review the Contractor's actual documented costs (as verified by the City) for Fuel and Electricity costs incurred during 2025 and either (a) the City will make a one-time additional payment to the Contractor for additional Fuel and Electricity costs incurred by Contractor, or (b) the Contractor will provide a credit to the City for overpayment by City based on actual Fuel and Electricity costs EXHIBIT "A"
PROPOSED 2022 CONTRACT AMENDMENT
(10/18/2022 VERSION)
123
17650078.3
during 2026. The payment will be made or cr
edit applied during the
first quarter of 2027.
All other non-labor operating costs as adjusted for calendar year 2025 will be multiplied by one plus two point five percent (1.025). If the Non-Labor Index exceeds 5% for the twelve-month period ending on September 30, 2025 each party will be responsible for 50% of all the increase in excess of 5%. For example, if the Non- Labor Index is 8% to be applied to calendar year 2025, then the City would pay Contractor an additional 1.5% (50% above 5%) for all non-labor cost categories in Attachment T-1 and the adjustment factor would be increased from 1.025 (2.5%) to 1.04 (4%) for that given year.
Capital costs will be as shown on Attachment T.
The City's monthly lease to the Contractor for the City's second floor office at the MDF administration building ending on December 31, 2024 unless the parties agree to an extension. The lease rate of Five Hundred dollars ($500) per month will be increased by 2.5% annually beginning on January 1, 2022.
Compensation to Contractor will al
so be adjusted pursuant to the
Reconciliation Review Process conducted during calendar year 2024 as described in Attachment U and U-1.
EXHIBIT "A"
PROPOSED 2022 CONTRACT AMENDMENT
(10/18/2022 VERSION)
124
17650078.3
The Operating and Capital Cos t Paym
ent for calendar year 2026 is
therefore the sum of:
Labor Related Costs (Adjusted)
Fuel and Energy Costs (Compared to Actuals)
Other operating Costs (Adjusted)
Capital Costs (Per Attachment T)
MDF City Office Space Lease (if lease is extended)
Reconciliation Review Process
QQ. Calendar Year 2027 (Year 10). The Operating and Capital Cost Payment for calendar year 2027 will be calculated as follows:
Labor related costs as adjusted for 2026 will be multiplied by one plus three point five percent (1.035).
On a monthly basis, the City will pay the Contractor 1/12 of the annual total Fuel and Electricity cost for 2026, which is calculated based on the actual total Fuel and Electricity costs from October 2025 through September 2026. At the end of 2027, the parties will review the Contractor's actual documented costs (as verified by the City) for Fuel and Electricity costs incurred during 2026 and either (a) the City will make a one-time additional payment to the Contractor for additional Fuel and Electricity costs incurred by Contractor, or (b) the Contractor will provide a credit to the City for overpayment by City based on actual Fuel and Electricity costs EXHIBIT "A"
PROPOSED 2022 CONTRACT AMENDMENT
(10/18/2022 VERSION)
125
17650078.3
during 2027. The payment will be made or c
redit applied during the
first quarter of 2028.
All other non-labor operating costs as adjusted for calendar year 2026 will be multiplied by one plus two point five percent (1.025). If the Non-Labor Index exceeds 5% for the twelve-month period ending on September 30, 2026 each party will be responsible for 50% of all the increase in excess of 5%. For example, if the Non- Labor Index is 8% to be applied to calendar year 2026, then the City would pay Contractor an additional 1.5% (50% above 5%) for all non-labor cost categories in Attachment T-1 and the adjustment factor would be increased from 1.025 (2.5%) to 1.04 (4%) for that given year.
Capital costs will be as shown on Attachment T.
The City's monthly lease to the Contractor for the City's second floor office at the MDF administration building ending on December 31, 2024 unless the parties agree to an extension. The lease rate of Five Hundred dollars ($500) per month will be increased by 2.5% annually beginning on January 1, 2022.
Compensation to Contractor will al
so be adjusted pursuant to the
Reconciliation Review Process conducted during calendar year 2026 as described in Attachment U and U-1.
EXHIBIT "A"
PROPOSED 2022 CONTRACT AMENDMENT
(10/18/2022 VERSION)
126
17650078.3
The Operating and Capital Cos t Paym
ent for calendar year 2027 is
therefore the sum of:
Labor Related Costs (Adjusted)
Fuel and Energy Costs (Compared to Actuals)
Other operating Costs (Adjusted)
Capital Costs (Per Attachment T)
MDF City Office Space Lease (if lease is extended)
Reconciliation Review Process
RR. Calendar Year 2028 (Year 11). The Operating and Capital Cost Payment for calendar year 2028 will be calculated as follows:
Labor related costs as adjusted for 2027 will be multiplied by one plus three point five percent (1.035).
On a monthly basis, the City will pay the Contractor 1/12 of the annual total Fuel and Electricity cost for 2027, which is calculated based on the actual total Fuel and Electricity costs from October 2026 through September 2027. At the end of 2028, the parties will review the Contractor's actual documented costs (as verified by the City) for Fuel and Electricity costs incurred during 2027 and either (a) the City will make a one-time additional payment to the Contractor for additional Fuel and Electricity costs incurred by Contractor, or (b) the Contractor will provide a credit to the City for overpayment by City based on actual Fuel and Electricity costs EXHIBIT "A"
PROPOSED 2022 CONTRACT AMENDMENT
(10/18/2022 VERSION)
127
17650078.3
during 2028. The payment will be made or c
redit applied during the
first quarter of 2029.
All other non-labor operating costs as adjusted for calendar year 2027 will be multiplied by one plus two point five percent (1.025). If the Non-Labor Index exceeds 5% for the twelve-month period ending on September 30, 2027 each party will be responsible for 50% of all the increase in excess of 5%. For example, if the Non- Labor Index is 8% to be applied to calendar year 2027, then the City would pay Contractor an additional 1.5% (50% above 5%) for all non-labor cost categories in Attachment T-1 and the adjustment factor would be increased from 1.025 (2.5%) to 1.04 (4%) for that given year.
Capital costs will be as shown on Attachment T.
The City's monthly lease to the Contractor for the City's second floor office at the MDF administration building ending on December 31, 2024 unless the parties agree to an extension. The lease rate of Five Hundred dollars ($500) per month will be increased by 2.5% annually beginning on January 1, 2022.
Compensation to Contractor will al
so be adjusted pursuant to the
Reconciliation Review Process conducted during calendar year 2028 as described in Attachment U and U-1.
EXHIBIT "A"
PROPOSED 2022 CONTRACT AMENDMENT
(10/18/2022 VERSION)
128
17650078.3
The Operating and Capital Cos t Paym
ent for calendar year 2028 is
therefore the sum of:
Labor Related Costs (Adjusted)
Fuel and Energy Costs (Compared to Actuals)
Other operating Costs (Adjusted)
Capital Costs (Per Attachment T)
MDF City Office Space Lease (if lease is extended)
Reconciliation Review Process
SS. Calendar Year 2029 (Year 12). The Operating and Capital Cost Payment for calendar year 2029 will be calculated as follows:
Labor related costs as adjusted for 2028 will be multiplied by one plus three point five percent (1.035).
On a monthly basis, the City will pay the Contractor 1/12 of the annual total Fuel and Electricity cost for 2028, which is calculated based on the actual total Fuel and Electricity costs from October 2027 through September 2028. At the end of 2029, the parties will review the Contractor's actual documented costs (as verified by the City) for Fuel and Electricity costs incurred during 2028 and either (a) the City will make a one-time additional payment to the Contractor for additional Fuel and Electricity costs incurred by Contractor, or (b) the Contractor will provide a credit to the City for overpayment by City based on actual Fuel and Electricity costs EXHIBIT "A"
PROPOSED 2022 CONTRACT AMENDMENT
(10/18/2022 VERSION)
129
17650078.3
during 2029. The payment will be made or c
redit applied during the
first quarter of 2030.
All other non-labor operating costs as adjusted for calendar year 2028 will be multiplied by one plus two point five percent (1.025). If the Non-Labor Index exceeds 5% for the twelve-month period ending on September 30, 2028 each party will be responsible for 50% of all the increase in excess of 5%. For example, if the Non- Labor Index is 8% to be applied to calendar year 2028, then the City would pay Contractor an additional 1.5% (50% above 5%) for all non-labor cost categories in Attachment T-1 and the adjustment factor would be increased from 1.025 (2.5%) to 1.04 (4%) for that given year.
Capital costs will be as shown on Attachment T.
The City's monthly lease to the Contractor for the City's second floor office at the MDF administration building ending on December 31, 2024 unless the parties agree to an extension. The lease rate of Five Hundred dollars ($500) per month will be increased by 2.5% annually beginning on January 1, 2022.
Compensation to Contractor will al
so be adjusted pursuant to the
Reconciliation Review Process conducted during calendar year 2028 as described in Attachment U and U-1.
EXHIBIT "A"
PROPOSED 2022 CONTRACT AMENDMENT
(10/18/2022 VERSION)
130
17650078.3
The Operating and Capital Cos t Paym
ent for calendar year 2029 is
therefore the sum of:
Labor Related Costs (Adjusted)
Fuel and Energy Costs (Compared to Actuals)
Other operating Costs (Adjusted)
Capital Costs (Per Attachment T)
MDF City Office Space Lease (if lease is extended)
Reconciliation Review Process
TT. Calendar Year 2030 (Year 13). The Operating and Capital Cost Payment for calendar year 2030 will be calculated as follows:
Labor related costs as adjusted for 2029 will be multiplied by one plus three point five percent (1.035).
On a monthly basis, the City will pay the Contractor 1/12 of the annual total Fuel and Electricity cost for 2029, which is calculated based on the actual total Fuel and Electricity costs from October 2028 through September 2029. At the end of 2030, the parties will review the Contractor's actual documented costs (as verified by the City) for Fuel and Electricity costs incurred during 2028 and either (a) the City will make a one-time additional payment to the Contractor for additional Fuel and Electricity costs incurred by Contractor, or (b) the Contractor will provide a credit to the City for overpayment by City based on actual Fuel and Electricity costs EXHIBIT "A"
PROPOSED 2022 CONTRACT AMENDMENT
(10/18/2022 VERSION)
131
17650078.3
during 2030. The payment will be made or c
redit applied during the
first quarter of 2031.
All other non-labor operating costs as adjusted for calendar year 2029 will be multiplied by one plus two point five percent (1.025). If the Non-Labor Index exceeds 5% for the twelve-month period ending on September 30, 2029 each party will be responsible for 50% of all the increase in excess of 5%. For example, if the Non- Labor Index is 8% to be applied to calendar year 2029, then the City would pay Contractor an additional 1.5% (50% above 5%) for all non-labor cost categories in Attachment T-1 and the adjustment factor would be increased from 1.025 (2.5%) to 1.04 (4%) for that given year.
Capital costs will be as shown on Attachment T.
The City's monthly lease to the Contractor for the City's second floor office at the MDF administration building ending on December 31, 2024 unless the parties agree to an extension. The lease rate of Five Hundred dollars ($500) per month will be increased by 2.5% annually beginning on January 1, 2022.
Compensation to Contractor will al
so be adjusted pursuant to the
Reconciliation Review Process conducted during calendar year 2030 as described in Attachment U and U-1.
EXHIBIT "A"
PROPOSED 2022 CONTRACT AMENDMENT
(10/18/2022 VERSION)
132
17650078.3
The Operating and Capital Cos t Paym
ent for calendar year 2030 is
therefore the sum of:
Labor Related Costs (Adjusted)
Fuel and Energy Costs (Compared to Actuals)
Other operating Costs (Adjusted)
Capital Costs (Per Attachment T)
MDF City Office Space Lease (if lease is extended)
Reconciliation Review Process
UU. Calendar Year 2031 (Year 14). The Operating and Capital Cost Payment for calendar year 2031 will be calculated as follows:
Labor related costs as adjusted for 2030 will be multiplied by one plus three point five percent (1.035).
On a monthly basis, the City will pay the Contractor 1/12 of the annual total Fuel and Electricity cost for 2030, which is calculated based on the actual total Fuel and Electricity costs from October 2029 through September 2030. At the end of 2031, the parties will review the Contractor's actual documented costs (as verified by the City) for Fuel and Electricity costs incurred during 2029 and either (a) the City will make a one-time additional payment to the Contractor for additional Fuel and Electricity costs incurred by Contractor, or (b) the Contractor will provide a credit to the City for overpayment by City based on actual Fuel and Electricity costs EXHIBIT "A"
PROPOSED 2022 CONTRACT AMENDMENT
(10/18/2022 VERSION)
133
17650078.3
during 2031. The payment will be made or c
redit applied during the
first quarter of 2032.
All other non-labor operating costs as adjusted for calendar year 2030 will be multiplied by one plus two point five percent (1.025). If the Non-Labor Index exceeds 5% for the twelve-month period ending on September 30, 2030 each party will be responsible for 50% of all the increase in excess of 5%. For example, if the Non- Labor Index is 8% to be applied to calendar year 2030, then the City would pay Contractor an additional 1.5% (50% above 5%) for all non-labor cost categories in Attachment T-1 and the adjustment factor would be increased from 1.025 (2.5%) to 1.04 (4%) for that given year.
Capital costs will be as shown on Attachment T.
The City's monthly lease to the Contractor for the City's second floor office at the MDF administration building ending on December 31, 2024 unless the parties agree to an extension. The lease rate of Five Hundred dollars ($500) per month will be increased by 2.5% annually beginning on January 1, 2022.
Compensation to Contractor will al
so be adjusted pursuant to the
Reconciliation Review Process conducted during calendar year 2030 as described in Attachment U and U-1.
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The Operating and Capital Cos t Paym
ent for calendar year 2031 is
therefore the sum of:
Labor Related Costs (Adjusted)
Fuel and Energy Costs (Compared to Actuals)
Other operating Costs (Adjusted)
Capital Costs (Per Attachment T)
MDF City Office Space Lease (if lease is extended)
Reconciliation Review Process
12.04 Base Profit Margin. The City
will pay Contractor an amount equal to
three percent (3%) of the applicable Operati
ng and Capital Cost Payment as the
Contractor’s base profit margin. This payment will be made monthly, concurrently with the Operating and Capital Cost Payment. For services not included in the base Operating and Capital Cost Payment, the three percent (3%) profit shall be added to certain services and not others, as described in Table 12.1 below.
12.05 Additional Payment For Throughput Ove
r Baseline. If Contractor is
required to process more than Eighty T
housand, Five Hundred Fifty (80,550) Tons
during a calendar year, commencing with January 1, 2017, of Recyclable Materials, Yard Trimmings, other Compostable Materials and C&D Debris, City will pay an Additional Payment, as follows:
A. Expansion Capacity Level 1. An A
dditional Payment will be made
on a unit basis ($/ton) in accordance wit
h the Unit Costs presented in the table below
once the following two conditions are met in a given calendar year: (1) if the total Tons/year processed is greater than 80,550; and (2) if the Tons/year for each EXHIBIT "A"
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Processing Area is equal to or greater
than 80% of the Baseline Tons/year for each
Processing Area. The Additional Payment will be calculated as the number of Tons exceeding Baseline ton levels for each Processing Area up to the Expansion Capacity Level 1 tons shown in the table below multiplied by the Unit Cost ($/ton) for the applicable Processing Area. The Unit Costs shown in the Tables below are in 2017 dollars and will be adjusted annually beginning in 2018 (for calendar year 2017) as described in Section 12.05 E. NOTE: The Unit Cost shown in the Tables below for the Composting Area will be used once Contractor receives direction from City that all required permits have been received for Contractor to compost Food Scraps, Yard Trimmings and other Compostable Materials on site at the City MDF. Until that time, the following Unit Cost for the Composting Area shall be used: $26.85 per ton (in 2017 dollars) and will be adjusted annually beginning in 2018 (for calendar year 2017) as described in Section 12.05 E. See Sections 12.05 D and E for timing of the Additional Payment.
Expansion Capacity Level 1
Baseline
(Tons/Year)
Expansion
Capacity
Level 1
(Tons/Year)
Unit Cost
($/Ton)
(In 2017$)
Composting Area 40,670 51,215 $26.85
Clean MRF 19,290 27,720 $76.73
Wood Processing 3,970 5,760 $23.03
Source Separated
C&D Processing
16,620 19,493 $17.92
Total 80,550 104,188
B. Expansion Capacity Level 2. An A
dditional Payment will be made
on a unit basis ($/ton) in accordance wit
h the Unit Costs presented in the table below if
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the total Tons/year processed is greater
than 104,188. The Additional Payment will be
calculated as the number of Tons exceeding Expansion Capacity Level 1 tons for each Processing Area as shown in the table below multiplied by the Unit Cost ($/ton) for each applicable Processing Area as shown in the table below.
Expansion Capacity Level 2
Expansion
Capacity Level 1
(Tons)
Expansion
Capacity Level 2
(Tons)
Unit Cost
($/Ton)
(2017$)
Composting Area 51,215 51,216 and above $29.40
Clean MRF 27,720 27,721 and above $79.28
Wood Processing 5,760 5,761 and above $25.57
Source Separated
C&D Processing
19,493 19,4
94 and above $20.46
Total 104,188 104,189 and above
C. Optional Mixed C&D Processing
. If the City directs Contractor to
implement a Mixed C&D Processing op
eration during the Term, the throughput bases
for the Additional Payment for Throughput Over Baseline described in Sections 12.05 A and B will be changed to those presented in the table below:
Baseline
(Tons/Year)
Expansion
Capacity Level 1
(Tons)
Expansion
Capacity Level 2
(Tons)
Composting
Area
40,670 51,215 51,215 and above
Clean MRF 19,290 27,720 27,721 and above
Wood
Processing
3,970 5,760 5,761 and above
Source
Separated C&D
Processing
16,620 19,493 19,494 and above
Mixed C&D
Processing
4,250 9,455 9,456 and above
Total 84,800 113,643 113,644 and above
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The unit costs presented in Sections
12.05 A and B shall remain unchanged. The Unit
Costs for processing Mixed C&D shall be as follows, escalated in accordance with the terms of the Contract:
Expansion Capacity Level 1: $40.92/Ton (in 2017$)
Expansion Capacity Level 2: $35.80/Ton (in 2017$)
D. Payment. The Additional Payments,
if any, will be made to
Contractor on a monthly basis once the
following two conditions are met: (1) the total
Tons processed during the calendar year then in progress is greater than 80,550; and (2) the Tons processed in each Processing Area as of the date in question are equal to or greater than 80% of the Baseline Tons/year for each Processing Area. Once these two conditions are met, Contractor shall be paid Additional Payments as follows.
Example: For tons processed in the Clean MRF Processing Area, the number of tons over 19,290 but less than 27,721 will be multiplied by the Unit Cost shown in the Expansion Capacity Level 1 table above ($76.73/Ton in 2017$) and the number of Tons over 27,720 will be multiplied by the Unit Cost shown in the Expansion Capacity Level 2 table above ($79.28/Ton in 2017$). Once the above-described two conditions are met, Contractor shall prepare documentation showing achievement of the two conditions along with an invoice for the Additional Payment amount earned for the month, and will submit these to City for approval and payment. City will verify the calculations and tonnages and, upon approval, City will pay the invoice within sixty (60) calendar days of submittal. This process will be repeated on a monthly basis for the remainder of the calendar year. In the event the total amount of the Additional Payment for the previous calendar year exceeds the amount included in the City’s adopted 2-year budget for this EXHIBIT "A"
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line item, City shall pay Contractor on
e hundred percent (100%) of the budgeted
amount on or before March 1. City shall then have sixty (60) days to present a budget adjustment to the City Council to seek approval to pay the remaining balance to Contractor.
E. Annual Adjustment of Unit Cost
s Per Ton and Reconciliation
of Additional Payments. The Uni
t Costs per Ton listed in the tables above for each
type of material will be adjusted as of M
arch 2018 by multiplying each amount above by
100% plus the change in the Producer Price Index – Finished Goods Less Food and Energy (Series ID WPUFD4131) between the annual average for calendar year 2016 and the annual average for calendar year 2017.
In subsequent years the payments will
be adjusted by multiplying the Unit
Costs/Ton then in effect by 100% plus the change in the index specified above between the annual average of the second preceding calendar year and the annual average of the immediately preceding calendar year. For example, in March 2019 the Unit Costs/Ton will be adjusted to reflect the change in the index between that for 2017 and that for 2018.
The change in the specified PPI index is not usually available from the Bureau of Labor Statistics until late January or early February of the succeeding calendar year. Therefore, in February of each year, the City will calculate the total PPI- adjusted Additional Payments due to Contractor for the entire preceding calendar year and reconcile that total against the amount already paid to Contractor for the preceding calendar year. If the total PPI-adjusted Additional Payments due to Contractor is greater than the sum of the monthly Additional Payments already paid to Contractor, City will EXHIBIT "A"
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pay Contractor for the difference. Cont
ractor shall submit an invoice for the amount
owed and City will pay the invoice within two (2) weeks of submittal and will strive to complete payment on or before March 1.
In the event the total of the monthly Additional Payments already paid to Contractor exceeds the PPI-adjusted total Additional Payments due to the Contractor for the preceding calendar year, City will deduct the difference from Contactor’s monthly Operating and Capital Payment for March of the year following the year for which the Additional Payment is being calculated.
F. Maximum Allowable Throughput at MD
F. The maximum tons of
throughput through the Processing Areas l
isted in the tables above for the Napa MDF
shall be the number of tons allowed by the permits for the facility including, but not limited to, the Solid Waste Facilities Permit, the Authority to Construct issued by the Bay Area Air Quality Management District, the permit(s), Waste Discharge Requirements and Stormwater Permit from the State Water Resources Control Board and the Regional Water Quality Control Board, and all other permits, laws and regulations under which the MDF is required to operate. In the event of a disagreement between Contractor and City concerning the number of Tons of throughput permitted under any or all of the MDF permits, (including the CEQA documents upon which the permits are based) the decision of the City shall govern and shall be final.
G. Eligibility of Materials. Materials
received at the MDF that are
eligible for the Additional Payme
nt are defined as the “OB Tonnage”. The OB Tonnage
includes Tons of materials processed in the Composting Area, Clean MRF Area, Wood EXHIBIT "A"
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Processing Area and C&D Area with t
he following clarifications and exceptions. Metal
appliances collected in roll off boxes are treated as “metal” and are eligible for the Additional Payment.
Inbound materials to the MDF from the Transfer Station are excluded. Materials received at the MDF for handling and transfer only, but not processing (e.g. Electronic Waste and Bulky Goods), are not included in the tonnage calculations for the Additional Payment. Materials collected by the Recycle More program are “transfer only” materials and are excluded. Materials received at the City MDF but already compensated by the City to Contractor by other methods (e.g., discarded carpet) shall also be excluded.
Materials received at the City MDF that meet the definition of Pre-Processed, Baler- Ready Recyclable Materials; Pre-Processed, Market-Ready Recyclable Materials; and DRTS New Materials in this agreement are also excluded.
The eligibility of materials received at the MDF pursuant to the City’s Agreement with Northern Recycling Operations and Waste Services, LLC shall be as stated in Section 6.04 of Attachment AA to that contract.
The net tonnage remaining after the above-described exclusions is the “OB Tonnage” and is the tonnage eligible for the Additional Payment.
H. Calculation of Additional Payme
nt. Sample calculations for
multiple scenarios for the Additi
onal Payment are included in Attachment GG. The
results of the examples are provided to illustrate the calculation methodology only. The variables in the examples, including sample tonnages and sample Unit Costs, are provided solely for illustration purposes and are not part of the Contract.
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The parties have developed an Excel spreads
heet model to expedite calculation
of the Additional Payment. The parties agree the Excel spreadsheet model was developed and is being used solely for the convenience of City and Contractor, but is not part of the Contract. In the event there is a difference or a discrepancy in the results of the Excel spreadsheet model calculations and calculations performed manually using the sample calculation methodology contained in Attachment GG, the City will work with Contractor to determine the source of the discrepancy or error. If a discrepancy remains after the parties’ joint review, the City will use the results that follow the sample calculation methodology in making the final determination as to the amount of the Additional Payment earned by Contractor for the given calendar year.
12.06 Construction Management Fee. For
City-approved subcontractor
services for Modifications, as def
ined in Attachment F, Section 8.1.1, a 5% construction
management fee will be added based on the total Modification cost approved by the City, pursuant to Section
6.15 and Attachment F, Section 8.1.
1. However, some direct
pass-through costs are not subject to the 5% construction management fee, as determined by the City.
12.07 Incentives. Contractor shall be eli
gible to earn one, two or all three of the
incentives described in this Section
on an annual basis. The incentives are extra, non-
guaranteed payments to reward the Contractor for achieving specific levels of performance as described herein. The incentives (if earned) shall be in addition to Contractor’s Operating and Capital Cost Payment and other compensation described in Article 12. A description of each incentive, the method by which Contractor’s eligibility for each incentive shall be determined, and the method by which the amount of each EXHIBIT "A"
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incentive payment (if earned) shall be cal
culated are contained in the following
Attachments:
Targeted Incentive (TI) Attachment V-1
Residue Reduction Incentive (RRI) Attachment V-2
Collection Incentive (CI) Attachment V-3
A sample glossary of the Soft Pak Scale System material and facility codes used in the incentive calculations appears in Attachment V-4.
A. Rounding Protocol. For the purpose of calculat
ing the level of
performance achieved by Contractor for each
incentive the following protocols shall be
used. All percentages shall be rounded to the nearest one-tenth of one percent.
Decimal values ending in 0.01-0.04 shall be rounded down. Example: A result of 3.43% would be rounded down to 3.4%. Decimal values ending in 0.05-0.09 shall be rounded up. Example: A result of 3.37% would be rounded up to 3.4%.
B. Cap On Incentives. The maximum am
ount that Contractor may
earn annually for each incentive shall b
e as follows:
Targeted Incentive $100,000 per year
Res
idue Reduction Incentive $100,000 per year
Collection Incentive $100,000 per year
The amount of the cap for each incentive shall be adjusted annually (up or down) in late January or early February by the PPI Finished Goods Less Food and Energy Series ID WPUFD4131 published by the Bureau of Labor Statistics. The adjusted caps will be applied to the calculation of the incentives for the prior calendar year. (Example: The EXHIBIT "A"
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adjusted cap amounts calculated in Januar
y 2019 would be applied to the incentives
calculated for calendar year 2018.) The method for calculation of the adjustment shall be as follows: Multiply the existing cap by one (1) plus the percentage change in the PPI between the annual average index for the preceding calendar year and the annual average index for the current calendar year. The amount of the caps listed herein shall be adjusted beginning January/February 2019.
With regard to the Targeted Incentive, the payment amount of one hundred dollars ($100) per roll off box of eligible materials collected by Contractor and delivered to the MDF for processing, shall not be subject to the annual adjustments described in this Section 12.07.B. Similarly, with regard to the Collection Incentive, the payment amount of one thousand dollars ($1,000) for each one-tenth of one percent increase over the threshold amount achieved by Contractor, shall not be subject to the annual adjustments described in this Section.
C. Calculation of Incentives. Sample c
alculations for each incentive
are included in Attachments V-1, V-2 and V-3. T
he parties have developed Excel
spreadsheet models to expedite preparation of the incentive calculations contained in Attachments V-1, V-2 and V-3. The parties agree these Excel spreadsheet models were developed and are being used solely for the convenience of City and Contractor, but are not part of the Contract. The results of the calculations performed using the Excel spreadsheets shall not be determinative for purposes of deciding whether or not Contractor has earned any of the incentives in a given calendar year. In the event there is a difference or a discrepancy in the results of the Excel spreadsheet model calculations and calculations performed manually using the sample calculation EXHIBIT "A"
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methodology contained in Attachments V-1
, V-2 and V-3, the City will use the results
that follow the sample calculation methodology in making its determination as to whether or not Contractor has earned any of the incentives for the given calendar year.
The decision of the City shall be final.
D. Payment. Any incentive payment that is ear
ned by Contractor
shall be paid annually to Contractor in a l
ump sum. The amount of any incentive
payment(s) due to Contractor will be calculated by the City in late January or early February. City will transmit the information on the amount(s) due to Contractor.
Contractor will submit an invoice to the City in February. The City will pay the invoice(s) on or before March 31. In the event Contractor owes a Residue Reduction Debit (“RRI Debit”) payment to the City, the City will calculate the amount due in late January or early February and issue an invoice to Contractor in February. Contractor shall pay the invoice on or before March 31. In the alternative, City may deduct the amount of the RRI Debit due to the City from the next Operating and Capital Cost Payment due to Contractor.
E. Retroactivity. Contractor shall b
e eligible to earn the incentives
described in this Section 12.07 beginning
with calendar year 2010. The incentive
calculations and the amounts agreed upon as owed by City to Contractor for calendar years 2010, 2011, 2012 and 2013 are listed in Attachment KK to the Third Amendment and have been paid with interest that was calculated from April 1 of the year following the calendar year for which the incentives were earning at the following rates: nineteen point zero three percent (19.03%) for the 2010 incentive payments, fifteen point eight two percent (15.82%) for the 2011 incentive payments, and nine point eight five percent EXHIBIT "A"
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(9.85%) for the 2012 incentive payments
. These interest rates were calculated based
upon a portfolio invested as follows: half in conservative investments such as certificates of deposit and half in very aggressive investments such as the S&P stock market index fund; the rates included compounding of interest. The parties agreed there would be no interest paid on the incentive payments for 2013, therefore, the 2013 incentive payments were paid by City to Contractor without interest. The total paid by City to Contractor for the 2010-2013 incentive payments was Three Hundred Sixty Five Thousand, Six Hundred Fifty Seven and 65/100 dollars ($365,657.65) as listed in Attachment KK to the Third Amendment.
F. Eligibility For Incentives. In order t
o be eligible to receive any
incentive payments for a calendar year, C
ontractor must be in compliance with all
contract requirements including but not limited to, the materials marketing requirements in Attachment F, Section 4 concerning the “highest value uses” of the recovered materials, obtaining the best possible prices for materials and sorting recovered materials to meet market specifications.
G. Incentive Payments For Final Year
of the Term. Contractor shall
be paid any incentive payments due for the
final calendar year of the Term on or before
March 31 of the following year. If Contractor owes City a Residue Reduction Debit payment for the final calendar year of the Term, Contractor shall pay the debit amount on or before March 31 of the following year.
H. Targeted Incentive Deleted In Even
t of Exclusive Construction
and Demolition Debris Collection
. As of the Effective Date, collection of Construction and Demolition Debris in City is non-exc
lusive. Contractor competes with other
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companies to provide this service to buil
ders, demolition firms, residents and
businesses. In the event City elects to make Construction and Demolition Debris collection services exclusive to Contractor during the Term, the Targeted Incentive shall be eliminated as of the date Construction and Demolition Debris collection becomes exclusive to Contractor. City shall pay Contractor for any Targeted Incentive due for the period prior to the commencement of exclusivity, pursuant to the regular payment schedule described in Section 12.07(D). In such event, the maximum annual cap for the Collection Incentive and the Residue Reduction Incentive shall each be increased to One Hundred Fifty Thousand dollars ($150,000.00) per year beginning in the calendar year immediately following the year in which Construction and Demolition Debris collection is made exclusive. In the event City elects not to make Construction and Demolition Debris collection services exclusive, City may, but has no obligation to, develop additional incentives to reward Contractor for actively pursuing a greater market share for Construction and Demolition Debris collection services, to the extent it is beneficial for City ratepayers.
12.08 Share of Revenues from Sale of R
ecyclable Materials and Compost.
Gross revenue received from the sale or o
ther disposition of materials from the MDF will
be shared between Contractor and City in the following proportions:
Recyclable Materials and all other ma
terials sold into the secondary materials
market, including but not limited to, all paper grades, all types of plastics, all types of metals, all biochar and all glass:
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Contractor: Thirty percent (30%)
City: Sev
enty percent (70%)
MDF Direct Materials Sales:
Contractor: Ninety-Five percent (95%)
City: Five percent (5%)
Payments received by Contractor pursuant to the California Beverage Container Recycling and Litter Reduction Act (Public Resources Code Section 14000 et seq.), and any other similar program, for materials collected in Napa or processed at the Materials Diversion Facility shall also be shared:
Contractor: Thirty percent (30%)
City: Seventy percent (70%)
Revenues received by the City from Northern’s direct sales of Electronic Waste and Covered Electronic Waste from the Transfer Station pursuant to Section 3D of the City-Northern Agreement in Attachment AA, shall not be shared with Contractor.
12.09 Napa Valley Unified School D
istrict.
As shown in Attachment T-11, Contract
or will be paid the amount of One
Hundred Forty Eight Thousand, Four Hundred Seven dollars ($148,407) for providing the services described in Attachment E to the School District (other than those EXHIBIT "A"
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performed at the MDF, compensation for w
hich is included in Section 12.03) during the
period commencing July 1, 2017 through June 30, 2018.
As shown in Attachment T-11, Contractor will be paid the amount of One Hundred Fifty Three Thousand, Six Hundred One dollars ($153,601) for providing the services described in Attachment E to the School District (other than those performed at the MDF, compensation for which is included in Section 12.03) during the period commencing July 1, 2018 through June 30, 2019.
As shown in Attachment T-11, Contractor will be paid the amount of One Hundred Fifty Eight Thousand, Nine Hundred Seventy Seven dollars ($158,977) for providing the services described in Attachment E to the School District (other than those performed at the MDF, compensation for which is included in Section 12.03) during the period commencing July 1, 2019 through June 30, 2020.
As shown in Attachment T-11, Contractor will be paid the amount of One Hundred Sixty Four Thousand, Five Hundred Forty One dollars ($164,541) for providing the services described in Attachment E to the School District (other than those performed at the MDF, compensation for which is included in Section 12.03) during the period commencing July 1, 2020 through June 30, 2021.
As shown in Attachment T-11, Contractor will be paid the amount of One Hundred Seventy Thousand, Three Hundred dollars ($170,300) for providing the services described in Attachment E to the School District (other than those performed at the MDF, compensation for which is included in Section 12.03) during the period commencing July 1, 2021 through June 30, 2022.
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As shown in Attachment T-11, Contract
or will be paid the amount of One
Hundred Seventy Six Thousand, Two Hundred Sixty One dollars ($176,261) for providing the services described in Attachment E to the School District (other than those performed at the MDF, compensation for which is included in Section 12.03) during the period commencing July 1, 2022 through June 30, 2023.
As shown in Attachment T-11, Contractor will be paid the amount of One Hundred Eighty Two Thousand, Four Hundred Thirty dollars ($182,430) for providing the services described in Attachment E to the School District (other than those performed at the MDF, compensation for which is included in Section 12.03) during the period commencing July 1, 2023 through June 30, 2024.
As shown in Attachment T-11, Contractor will be paid the amount of One Hundred Eighty Eight Thousand, Eight Hundred Fifteen dollars ($188,815) for providing the services described in Attachment E to the School District (other than those performed at the MDF, compensation for which is included in Section 12.03) during the period commencing July 1, 2024 through June 30, 2025.
As shown in Attachment T-11, Contractor will be paid the amount of One Hundred Ninety Five Thousand, Four Hundred Twenty Four dollars ($195,424) for providing the services described in Attachment E to the School District (other than those performed at the MDF, compensation for which is included in Section 12.03) during the period commencing July 1, 2025 through June 30, 2026.
As shown in Attachment T-11, Contractor will be paid the amount of Two Hundred Two Thousand, Two Hundred Sixty Four dollars ($202,264) for providing the EXHIBIT "A"
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services described in Attachment E
to the School District (other than those performed at
the MDF, compensation for which is included in Section 12.03) during the period commencing July 1, 2026 through June 30, 2027.
As shown in Attachment T-11, Contractor will be paid the amount of Two Hundred Nine Thousand, Three Hundred Forty Three dollars ($209,343) for providing the services described in Attachment E to the School District (other than those performed at the MDF, compensation for which is included in Section 12.03) during the period commencing July 1, 2027 through June 30, 2028.
As shown in Attachment T-11, Contractor will be paid the amount of Two Hundred Sixteen Thousand, Six Hundred Seventy dollars ($216,670) for providing the services described in Attachment E to the School District (other than those performed at the MDF, compensation for which is included in Section 12.03) during the period commencing July 1, 2028 through June 30, 2029.
As shown in Attachment T-11, Contractor will be paid the amount of Two Hundred Twenty Four Thousand, Two Hundred Fifty Three dollars ($224,253) for providing the services described in Attachment E to the School District (other than those performed at the MDF, compensation for which is included in Section 12.03) during the period commencing July 1, 2029 through June 30, 2030.
As shown in Attachment T-11, Contractor will be paid the amount of Two Hundred Thirty Two Thousand, One Hundred Two dollars ($232,102) for providing the services described in Attachment E to the School District (other than those performed at EXHIBIT "A"
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the MDF, compensation for which is
included in Section 12.03) during the period
commencing July 1, 2030 through June 30, 2031.
As shown in Attachment T-11, Contractor will be paid the amount of One Hundred Twenty Thousand, One Hundred Thirteen dollars ($120,113) for providing the services described in Attachment E to the School District (other than those performed at the MDF, compensation for which is included in Section 12.03) during the period commencing July 1, 2031 through December 31, 2031.
The amounts stated above include all profit. The 3% Base Profit Margin described in Section 12.04 does not apply to these payments.
12.10 Unit-Priced Services and Allow
ances. The level of certain of the
services that Contractor is requi
red to provide cannot be accurately forecast. For that reason, it is not possible to include the cost of those programs in the Annual Operating and Capital Payment provided for in Section
12.03. Instead, the parties have developed
uni
t costs for some of these programs, including:
• collecting Bulky Goods in excess of
two annual Bulky Goods collections per
household
• On-call Commercial pallet collection
• City-directed collection/cleanup of spilled or illegally dumped materials • which are set out on Attachment T-11.
The parties have also established annual
budget allowances for some of these
programs, including:
• Payment for Recycle More labor in li
eu of Annual E-waste recycling collection
event
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• Development and maintenance of searchable rec
ycling website
• annual recycling awards program
which are set out on Attachment T-11.
Paym
ent for these services will be calculated and made as provided in Attachment T-11.
12.11 Additional Public Outreach.
As part of the first cost review process in
2008, the City approved an annual $10,000 paym
ent to Contractor beginning January 1,
2009 for additional public outreach, as directed by the City, plus 3% base profit margin.
The City reserves the right to adjust or cancel this additional compensation at its sole discretion.
12.12 Hauling & Disposal Costs of Orga
nic Materials from MDF. The City
and Contractor recognize that because of ope
rating permit limits and/or limited recovery
options, the Contractor may need to haul certain organic materials away from the City MDF. The following subsections shall describe the related compensation for specific organic material flows:
A. Compostable Organics. Because of perm
it limits applicable to
the MDF, Contractor may need to trans
fer compostable organics to another permitted
composting facility to stay within legal tonnage processing limits. As allowed by governing permits and regulations, Contractor will receive inbound Compostables and Wood Material and process them through the organics pre-processing system described in Article 6 and Attachments F, G, H, and J of this Agreement. Once the organic materials have been processed through the organics pre-processing system, the Compostables that cannot be legally composted on site at the MDF will be EXHIBIT "A"