Newark City Council
April 13, 2023

ENERGY SERVICES CONTRACT
This Energy Services Contract ("Contract" or “Agreement”) is made and entered into as of DATE (“Effective Date”), between Syserco Energy Solutions, Inc., a California company (“Energy Services Contractor” or “Consultant”), having its principal offices at 215 Fourier Ave, Fremont, CA 94539, and CUSTOMER, having its principal office at ADDRESS (“Customer”), who are collectively referred to as the “Parties”, or individually as a “Party”.

WHEREAS, Energy Services Contractor is a company with experience and technical and management capabilities to provide for the discovery, engineering, procurement, installation, financing, maintenance and monitoring of energy saving measures, solar power generation measures, and/or operations and maintenance cost reductions at facilities similar to Customer’s facilities; and WHEREAS, Energy Services Contractor has prepared a project proposal in the form of an Energy Services Contract, (“Proposal”) for Customer; and
WHEREAS, Customer desires for Energy Services Contractor to perform certain work as identified in this Contract, and Energy Services Contractor desires to perform such work; and WHEREAS, this Contract is procured pursuant to the following procurement statute or other authority:

Government Code Section 4217.10 et seq.

NOW THEREFORE, the parties agree as follows:

1. Contacts. As of the Effective Date, and subject to change from time to time, the following persons are the primary representatives of each party as related to execution of this project:

For Energy Services Contractor:

Name: Scott Meinzen
Title: General Manager
Address: 215 Fourier Ave., Suite 140, Fremont, CA 94539 Telephone: 510-737-1583
Email: [email protected]
For Customer:

Name: _______________________
Title: _______________________
Address: _______________________
Telephone: _______________________
Email: _______________________

2. Scope of Work. Energy Services Contractor agrees to perform the work set forth in the proposal described as Energy Services Proposal (“Work”) and attached hereto as Exhibit A. Customer agrees to take all actions identified in this Contract that are necessary to achieve the project benefits identified. Energy Services Contractor will provide all labor, materials, equipment, and supervision, including subcontractors, necessary to perform the Work. If included in the Proposal or other exhibit to this Contract, Energy Services Contractor also agrees to perform post-construction services, which may include monitoring, measurement and verification services, following Substantial Completion of the Work (“Services”).

3. Compensation. Customer shall pay Energy Services Contractor SELL PRICE IN WORDS ($ENTER) (“Price”) as compensation for Energy Services Contractor’s performance of the Work and Services as provided herein. Customer shall pay Energy Services Contractor in accordance with the Schedule Packet Page 220

of Values that shall be reviewed and approved by Customer prior to beginning the Work. Customer shall pay Energy Services Contractor within thirty (30) days of receiving an invoice. Pursuant to Public Contract Code section 20104.50, Customer shall review each invoice as soon as practicable and return any invoice determined not proper for payment. Energy Services Contract will be entitled to interest pursuant to Public Contract Code section 20104.50 for failure to pay any invoices that are undisputed and overdue. Additional project financial information including total compensation and payment terms is as set forth in the Proposal, or other attached exhibits, as applicable.

4. Time. The Work to be performed under this Contract shall begin within 30 days of the date of an Executed Contract or Letter of Award (“Commencement Date”) and is anticipated to end by the earlier of the dates set forth in Section 4.a. or 4.b., below (“Time”). If the Work is divided into phases or individual projects, each phase or project will start in accordance with the timeline included as part of this Contract. The Work, but not the Services, shall be completed by the date that is the earlier of:
a. The date on which Energy Services Contractor is substantially complete with the Work.

Substantial completion means that Energy Services Contractor has performed enough of the Work so that Customer may use the Work for its intended purpose or realize an intended benefit from the Work. If the Work is divided into phases or individual projects for which individual prices have been negotiated (“Phase”), then substantial completion dates shall apply to each phase or individual project as indicated in this Contract. Substantial completion should be demonstrated via execution by Customer of a certificate of substantial completion. b. (____) days after the Commencement Date, subject to equitable extensions of Time, or pursuant to this Contract.

Any Services shall commence on the substantial completion date, unless a different date is specified herein, and shall continue for a 1-year period unless a different period is specified herein. The conditions of all utility cost savings as set forth in the Energy Services Proposal shall coincide with the term of the Services. If for any reason Customer terminates or breaches this Contract including but not limited to its obligations pursuant to the Services portion of the Contract or other separate agreement, the utility cost conditions of this agreement shall automatically terminate.

5. Permits, Approvals, Taxes. Unless obtained by Customer or otherwise specified in this Contract, Energy Services Contractor shall obtain all permits, licenses, and inspections that are required for the Work.

Customer shall be responsible for securing all other necessary approvals, easements, zoning changes, or similar entitlements. An equitable adjustment in the Time and Price of the Contract shall be made to account for any time Customer spends securing any of these items after the Commencement Date, and reasonable costs incurred by Energy Services Contractor as a result. Customer shall pay all taxes associated with the Work including, sales, use, real estate, and personal property taxes.

6. Safety. Energy Services Contractor shall be responsible for initiating, maintaining, and supervising safe performance of the Work. Energy Services Contractor shall comply with all applicable laws, ordinances, rules, regulations, and lawful orders of public authorities related to safety of persons or property.

7. Cleanup. Energy Services Contractor shall keep the premises and the surrounding area free from accumulation of waste materials or rubbish caused by the Work. Upon completion of the Work, Energy Services Contractor shall remove all waste materials, rubbish, tools, construction equipment, machinery, and surplus materials.

8. Subcontractors. Energy Services Contractor may hire subcontractors to perform any portion of the Work or Services under this Contract. Energy Services Contractor is entirely and ultimately responsible for compliance with the provisions of this Contract and for any part of work that is performed by a subcontractor.

9. Borrowed Equipment. If requested by Energy Services Contractor and if permitted by Customer’s Packet Page 221

representative, Energy Services Contractor may use Customer’s equipment in performing the Work or Services.

Energy Services Contractor assumes full and complete responsibility for the use of the equipment, will ensure that only a competent operator will be permitted to use the equipment and only after fully inspecting the equipment, shall not modify the equipment, shall be solely responsible for all claims, demands, lawsuits, losses, expenses and/or liabilities that arise from its use of the equipment to the extent of Energy Services Contractor’s negligence, and agrees that Customer makes no representation or warranty regarding the condition or suitability of equipment for any intended use.

10. Insurance. Consultant shall procure and maintain for the duration of this Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Consultant, his agents, representatives, subconsultants, or employees. a. Verification of Coverage.

Consultant shall furnish City with original certificates of insurance and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates and endorsements are to be received and approved by City before work commences.

Proof of Insurance shall be mailed to the following address or any subsequent address as may be directed in writing by the City Risk Manager:

CITY OF NEWARK
Attn: Risk Manager
37101 Newark Boulevard
Newark, CA 94560
City reserves the right to require and obtain complete, certified copies of all required insurance policies and endorsements at any time. Failure to exercise this right at any time shall not constitute a waiver of right to exercise later. Consultant shall immediately furnish City with certificates of renewal for each policy that is renewed during the term of this Agreement. b. Minimum Scope of Insurance.

Coverage shall be at least as broad as:

1. Insurance Services Office Form Number CG 00 01covering Commercial General Liability on an occurrence basis, including products and completed operations, property damage, bodily injury, and personal and advertising injury; and

2. Insurance Services Office Form Number CA 00 01 covering Code 1, (any auto), or Code 8 (hired) and Code 9 (non-owned) if consultant has no owned autos; and

3. Workers’ Compensation insurance as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance; and

4. Errors and Omissions Liability insurance appropriate to the Consultant’s profession.

Packet Page 222

Architects’ and Engineers’ coverage is to be endorsed to include contractual liability. c. Minimum Limits of Insurance.

It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the specified minimum Insurance coverage requirements and/or limits shall be available to the Additional Insured. Furthermore, the requirements for coverage and limits shall be (1) the minimum coverage and limits specified in this Agreement; or (2) the broader coverage and maximum limits of coverage of and Insurance policy or proceeds available to the named Insured; whichever is greater.

Consultant shall maintain limits no less than:

1. General Liability:
(including products and
completed operations, property
damage, bodily injury, and personal
and advertising injury)
$2,000,000 per occurrence for bodily
injury, personal injury, and property
damage. If a general aggregate limit
applies, either the general aggregate
limit shall apply separately to this
project/location or the general aggregate
limit shall be twice the required
occurrence limit.

2. Automobile Liability: $1,000,000 per accident for bodily injury and property damage.

3. Employer’s Liability: $1,000,000 per accident for bodily injury or disease.

4. Errors and Omissions Liability: $1,000,000 per occurrence or claim; $2,000,000 aggregate.
d. Deductibles and Self-Insured Retentions.

Any deductibles or self-insured retentions must be declared to and approved by the City Risk Manager.

At the option of City, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects to City, its officers, officials, directors, employees, contractors, agents, and volunteers, or (2) Consultant shall provide a financial guarantee satisfactory to City guaranteeing payment of losses and related investigations, claim administration, and defense expenses in an amount specified by the City Risk Manager or designee.
e. Claims Made Policies.

For all “claims made” coverage, in the event that Consultant changes insurance carriers Consultant shall purchase “tail” coverage or otherwise provide for continuous coverage covering the Term of this Packet Page 223

Agreement and not less than five (5) years thereafter. Proof of such “tail” or other continuous coverage shall be required at any time that the Consultant changes to a new carrier. f. Wasting Policies.

No policy required by this paragraph 14 shall include a “wasting” policy limit (ie. limit that is eroded by the cost of defense).
g. Remedies.

In addition to any other remedies City may have if Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City may, at its sole option exercise any of the following remedies, which are alternatives to other remedies City may have and are not the exclusive remedy for Consultant’s breach:

Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under the Agreement;
Order Consultant to stop work under this Agreement or withhold any payment that becomes due to Consultant hereunder, or both stop work and withhold any payment, until Consultant demonstrates compliance with the requirements hereof; and/or
Terminate this Agreement.
h. Acceptability of Insurers.

Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the City Risk Manager. All insurance companies providing coverage to Consultant shall be insurance organizations authorized by the Insurance Commissioner of the State of California to transact the business of insurance in the State of California. i. Other Insurance Provisions.

The general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions:

1. Additional Insureds. City, its officers, officials, directors, employees and volunteers (“Additional Insureds”) are to be covered as insureds with respect to liability arising out of work or operations performed by or on behalf of Consultant; including materials, parts or equipment furnished in connection with such work or operations.

2. Primary Coverage. For any claims related to Services, Consultant’s insurance coverage shall be primary insurance as respects City, its officers, officials, directors, employees, and volunteers. Any insurance or self-insurance maintained by City, its officers, officials, directors, employees, or volunteers shall be excess of Consultant’s insurance and shall not be contribute with it. Consultant’s policy will not Packet Page 224

seek contribution from the City’s insurance or self-insurance.

3. Notice of Cancellation. Each insurance policy required above shall provide that coverage shall not be canceled during the term of this Agreement without notice to City.

4. Civil Code § 2782. Coverage shall not extend to any indemnity coverage for the active negligence of the additional insured in any case where an agreement to indemnify the additional insured would be invalid under Subdivision (b) of Section 2782 of the California Civil Code.

5. Deductibles and Self-Insured Retentions (SIR). All deductibles and self-insured retentions must be disclosed to the City Risk Manager for approval and shall not reduce the limits of liability. Policies containing any SIR provision shall provide or be endorsed to provide that the SIR may be satisfied by either the named Insured or the City.

6. Subconsultants. Consultant shall include all subconsultants as insureds under its policies or shall require and verify separate certificates and endorsements have been obtained for each subconsultant. All coverages for subconsultants shall be subject to all of the requirements stated herein.

7. Waiver of Subrogation. With respect to Workers’ Compensation and Employer’s Liability Coverage, the insurer shall agree to waive all rights of subrogation against City, its officers, officials, directors, employees, and volunteers for losses arising from work performed by Consultant for City.

8. Coverage is Material Element. Maintenance of proper insurance coverage in conformity with the provision of this paragraph 14 is a material element of this Agreement and failure to maintain or renew coverage or to provide evidence of coverage or renewal may be treated by City as a material breach of this Agreement.

11. 9. Variation. The City Risk Manager may approve a variation in these insurance requirements upon a determination that the coverage, scope, limits, and form of such insurance are either not commercially available or that City’s interests are otherwise fully protected. Any variation granted shall be done in writing and shall be made a part of this Agreement as Appendix “A”.

12. Bonds. Energy Services Contractor shall furnish, at the time of the execution of a contract for the work, and at his/her own expense, separate Performance and Payment Bonds in the following amounts and in a form approved by the City.
• A Performance Bond in the amount of one hundred percent (100%) of the contract price • A Payment Bond in the amount of fifty percent (50%) of the contract price.

The performance bond shall cover completion of the physical work per the approved design. The bonds shall not guarantee or warranty the efficiency or performance of any aspect of the Work or Services, and shall not cover any obligation of Energy Services Contractor to ensure that the Work as constructed, or Services, will result in any particular level of energy savings. Any suit on the Bonds must be brought within the period of one (1) year after substantial completion; provided, however, that if this suit limitation is void or prohibited by law, the minimum period of limitation available to sureties as a defense in the jurisdiction of the suit shall be applicable.

13. Prevailing Wage Requirements and Public Works Contractor Registration. Because the Work and Services described in Exhibit A include “work performed during the design and preconstruction phases of construction including, but not limited to, inspection and land surveying work,” the Work and Services constitute Packet Page 225

a public works within the definition of Section 1720(a)(1) of the California Labor Code. As a result, Consultant is required to comply with the provisions of the California Labor Code applicable to public works, to the extent set forth in Exhibit “B”. Consultant agrees, in accordance with Section 1771.1 of the California Labor Code, that Consultant or any subcontractor shall not be qualified to bid on, be listed in a bid proposal, subject to the requirements of Section 4104 of the Public Contract Code, or engage in the performance of any contract for public work, as defined in Chapter 1 of Part 7 of Division 2 of the California Labor Code, unless currently registered and qualified to perform public work pursuant to California Labor Code section 1725.5. It is not a violation of this section for an unregistered contractor to submit a bid that is authorized by Section 7029.1 of the Business and Professions Code or by Section 10164 or 20103.5 of the Public Contract Code, provided the Consultant is registered to perform public work pursuant to Section 1725.5 at the time the contract is awarded. No contractor or subcontractor may be awarded a contract for public work on a public works project unless registered with the Department of Industrial Relations pursuant to California Labor Code section 1725.5. Consultant agrees, in accordance with Section 1771.4 of the California Labor Code, that if the work under this Agreement qualifies as public work, it is subject to compliance monitoring and enforcement by the Department of Industrial Relations.

14. Delays. If Energy Services Contractor is delayed in the commencement or completion of the Work or Services by causes beyond its control, including but not limited to fire, flood, theft, vandalism, labor disputes, abnormal adverse weather conditions, acts of God, acts of the public enemy, riot, war, unavailability of equipment or supplies, or supply chain delays caused by any of the foregoing, then Energy Services Contractor shall provide written notice to the Customer of the existence, extent of, and reason for such delays, and an equitable adjustment in the Time of the Contract shall be made as a result. If a delay is attributable to failure by Customer to perform its obligations under the Contract or failure to cooperate with Energy Services Contractor in the timely completion of the Work, an equitable adjustment to Time and Price shall be made as a result.

15. Certificate of Substantial Completion. Upon Substantial Completion of any Phase of the Work, Customer shall execute a certificate of substantial completion acknowledging:
a. The portion of the Work substantially completed, and the date of substantial completion. b. Receipt of any manuals and training provided by Energy Services Contractor under this Contract. c. Any warranty start date and warranty period.
d. A punchlist of items remaining to be completed by Energy Services Contractor.

Timing of Substantial Completion does not depend on Customer’s timely executing a certificate of substantial completion, and failure by Customer to timely execute a certificate of substantial completion shall not operate to extend the date of Substantial Completion.

16. Customer Use. Upon substantial completion or start of beneficial use, whichever occurs first, Customer is responsible for use, operation, and maintenance of all aspects of the Work and Services. Energy Services Contractor shall not be responsible for improper use, operation, or maintenance of any aspect of the Work or Services by Customer or others at any time.

17. Warranty. Energy Services Contractor warrants that the Work will be of good quality and new; that the Work will be free from defects not inherent in the quality required or permitted; and that the Work will conform to this Contract. Energy Services Contractor warrants that the Work shall be free from defects in material and workmanship arising from normal usage for a period of one ( 1 ) year from the date of substantial completion, or start of beneficial use by Customer, whichever is earlier. This warranty does not cover any improper use, operation, or maintenance of any aspect of the Work, or if the Work has been abused, altered, or repaired by the Customer or third parties without supervision by or prior written approval from Energy Services Contractor, or if serial numbers or warranty date decals have been removed or altered. Customer must report any warranty claims to Energy Services Contractor in writing, and such claims must be presented immediately upon having reason to know that a warranty issue exists. Failure by Customer to notify Energy Services Contractor of Packet Page 226

the need for warranty service within ten days of discovery of a warranty claim will void this warranty.

Additionally, Customer shall not hire or direct others to repair any warranty item without Energy Services Contractor’s written consent. Customer’s repair of any warranty item without the written consent of Energy Services Contractor shall void this warranty with respect to such item, and the cost of such repair shall not be reimbursable to Customer by Energy Services Contractor. Energy Services Contractor makes no warranty whatsoever regarding materials or products provided by third parties that are incorporated into the Work. THE

WARRANTIES CONTAINED IN THIS CONTRACT ARE EXCLUSIVE AND IN LIEU OF ALL OTHER

WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATIN

ANY WARRANTIES OF MERCHANTABILITY, HABITABILITY, OR FITNESS FOR A PARTICULAR USE OR PURPOSE.

18. Indemnity. To the fullest extent permitted by law, the Consultant shall: (1) immediately defend, and (2) indemnify City, its, officers, officials, directors, employees, and volunteers from and against all liabilities regardless of nature or type arising out of or resulting from Consultant’s performance of Services, or any negligent or wrongful act or omission of Consultant or Consultant’s officers, employees, agents, or subconsultants.

Liabilities subject to the duties to defend and indemnify include, without limitation all claims, losses, damages, penalties, fines, and judgments; associated investigation and administrative expenses; defense costs, including but not limited to reasonable attorneys’ fees; court costs; and costs of alternative dispute resolution. Consultant’s obligation to indemnify applies unless it is adjudicated that its liability was caused by the active negligence or sole misconduct of an indemnified party. If it is finally adjudicated that liability is caused by the comparative active negligence or willful misconduct of an indemnified party, Consultant’s indemnification obligation shall be reduced in proportion to the established comparative liability of the indemnified party.

In the event that Consultant or any employee, agent, or subconsultant of Consultant providing services under this Agreement is determined by a court of competent jurisdiction or the California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS as an employee of City, Consultant shall indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of Consultant or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City.

The duty to defend is a separate and distinct obligation from Consultant’s duty to indemnify. Consultant shall be obligated to defend, in all legal, equitable, administrative, or special proceedings, with counsel approved by City immediately upon tender to Consultant of the claim in any form or at any stage of an action or proceeding, whether or not liability is established. An allegation or determination of comparative active negligence or willful misconduct by an indemnified party does not relieve the Consultant from its separate and distinct obligation to defend City. The obligation to defend extends through final judgment, including exhaustion of any appeals. The defense obligation includes an obligation to provide independent defense counsel if Consultant asserts that liability is caused in whole or in part by the negligence or willful misconduct of the indemnified party. If it is finally adjudicated that liability was caused by the sole active negligence or sole willful misconduct of an indemnified party, Consultant may submit a claim to City for reimbursement of reasonable attorneys’ fees and defense costs.

The review, acceptance or approval of Consultant’s work or work product by any indemnified party shall not affect, relieve or reduce Consultant’s indemnification or defense obligations. This paragraph survives completion of Services or the termination of this contract. The provisions of this paragraph are not limited by and do not affect the provisions of this contract relating to insurance.

Packet Page 227

Consultant/Subconsultant’s responsibility for such defense and indemnity obligations shall survive the termination or completion of this Agreement for the full period of time allowed by law. The defense and indemnification obligations of this Agreement are undertaken in addition to, and shall not in any way be limited by, the insurance obligations contained in this Agreement.

19. Damages. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY

CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, OR SIMILAR DAMAGES OR

LOSSES, INCLUDING LOSS OF PROFITS, ARISING OUT OF OR RELATING TO THIS CONTRACT,

WHETHER BASED IN CONTRACT OR TORT OR ANY OTHER THEORY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

20. Force Majeure. Energy Services Contractor shall not be liable to Customer for damages, loss, injury, or delay caused by conditions that are beyond the reasonable control of Energy Services Contractor. Such conditions include, but are not limited to fire, flood, theft, vandalism, labor disputes, abnormal adverse weather conditions, acts of God, acts of the public enemy, riot, war, unavailability of equipment or supplies, or supply chain delays caused by any of the foregoing.

21. Fire Safety and Security Equipment. If this Contract covers fire safety or security equipment, Customer acknowledges that Energy Services Contractor is not an insurer regarding those services, and Energy Services Contractor shall not be responsible for any damage or loss that may result from fire safety or security equipment that fails to perform properly or fails to prevent a casualty loss.

22. Changes. The Work or Services may be changed pursuant to a written change order executed by an authorized Energy Services Contractor signer and Customer signer (“Change Order”). A Change Order is valid only to the extent that it changes the scope of Work or Services, Price, and/or Time. Any invalid portions of a Change Order shall be disregarded. The Parties contemplate that Change Orders may include scope changes such as installation of additional utility conservation measures, facility improvement measures, and operational efficiency improvements or the furnishing of additional services within the identified facilities, as well as other facilities owned or operated by Customer. Energy Services Contractor shall be entitled to a Change Order for additional or extra work or services provided by Energy Services Contractor to Customer at Customer’s request, without regard to whether such request is verbal or in writing.

Conflicts of Interest Prohibited. Consultant (including its employees, agents, and subcontractors) shall not maintain or acquire any direct or indirect interest that conflicts with the performance of this Agreement. Consultant shall comply with all requirements of the Political Reform Act (California Government Code Section 81000, et seq.) and other laws relating to conflicts of interest, including: (a) Consultant shall not make or participate in a decision made by City if it is reasonably foreseeable that the decision may have a material effect on Consultant’s economic interest, and (b) if required by law, Consultant shall file financial disclosure forms with the City Clerk.

If Consultant maintains or acquires a conflicting interest, any contract with City (including this Agreement) involving Consultant’s conflicting interest may be terminated by City.

23. Termination. This Contract may be terminated at any time as described below:

Termination for Cause. If Energy Services Contractor materially fails to perform under this Contract, Customer may notify Energy Services Contractor in writing of Customer’s intent to terminate this Contract along with a description of the alleged failure. If Energy Services Contractor does not in good faith take reasonable steps to correct such failure within fifteen (15) days after receipt of such notice, Customer may terminate this Contract, and Energy Services Contractor shall be entitled to receive payment for all amounts earned prior to termination. If it is Packet Page 228

determined for any reason that termination was improper, the termination shall be treated as a termination for convenience.
b. Termination for Convenience. Customer may terminate this Contract in whole or in part for any reason by providing written notice of termination to Energy Services Contractor and specifying the date on when the termination becomes effective. Upon receipt of such notice, Energy Services Contractor shall incur no further obligations in connection with the terminated work and will stop work to the extent specified. Energy Services Contractor shall also terminate outstanding orders and subcontracts as they relate to the terminated work. Energy Services Contractor shall settle liabilities and claims arising out of the termination of subcontracts and orders connected with the terminated work, and Customer shall pay Energy Services Contractor for such expensees, demobilization costs incured by Energy Services Contractor due to the termination, and overhead through the end of work performed due to termination of the Contract.

Such amounts shall be paid by Customer to Energy Services Contractor within fifteen (15) days of Energy Services Contractor’s delivery to Customer of a request for payment. In addition, Energy Services Contractor may terminate this Contract in whole or in part for any reason by providing written notice of termination to Customer and specifying when termination becomes effective. In such case, Energy Services Contractor shall refund to Customer all amounts prepaid by Customer and unearned by Energy Services Contractor as of the date of termination, and Customer shall have no payment obligation to Energy Services Contractor for unperformed Work.

Disputes. This Agreement requires the Parties to work together in good faith to achieve the intent of this Agreement. In the event that a dispute arises as to the proper interpretation of the respective obligations and responsibilities of the parties under this Agreement, or as to any other aspect of this Agreement, the Parties agree that they each will assign the appropriate individuals to meet and make good faith efforts in order to arrive at a resolution of the dispute. If after employing the informal resolution process above, the Parties are unable to resolve a dispute arising under this Agreement, any Party may request an independent mediator, agreeable to all Parties, to facilitate further negotiation with the costs shared equally between and among the Parties. However, nothing herein will prevent any Party from exercising any rights it may have to enforce the terms of this Agreement at law or in equity.

24. Nondiscrimination. Consultant shall comply with all applicable federal, state, and local laws regarding nondiscriminatory employment practices, whether or not said laws are expressly stated in this Agreement.

Consultant shall not discriminate against any employee or applicant because of race, color, religious creed, national origin, physical disability, mental disability, medical condition, marital status, sexual orientation, sex, age, or any other basis, as defined in California Civil Code Section 51.

25. Notices. All notices to Energy Services Contractor shall be written, shall be sent via certified mail or a national courier service or personally delivered, shall consist of one original to Attn: General Counsel, Energy Services Contractor, 215 Fourier Ave, Ste.140, Fremont, CA 94539, and one original to the primary Energy Services Contractor contact for the Work, and shall be deemed delivered when received by the General Counsel.

26. Reserved.

27. Choice of Law/Venue. This Agreement shall be governed and construed under the laws of the State of California, notwithstanding any choice of law provision whether statutory, common law, or contractual. Any suit, claim, or legal proceeding of any kind related to this Agreement shall be filed and heard in a court of competent Packet Page 229

jurisdiction in the County of Alameda.

28. Assignment. Neither Party may assign or transfer its rights and/or obligations under this Contract without the prior written consent of the other Party which shall not be unreasonably withheld, unless the assignment is to an affiliate of the Party.

29. No Waiver. No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this Contract shall be effective unless it is in writing and signed by the party waiving the breach, failure, right, or remedy. No waiver of any breach, failure, right, or remedy shall be deemed a waiver of any other breach, failure, right, or remedy, whether or not similar, nor shall any waiver constitute a continuing waiver.

30. No Third Party Beneficiaries. There are no third party beneficiaries under this Contract or any portion thereof.

31. Severability, Survival. If any portion of this Contract shall be held invalid in whole or in part under any law, rule, regulation, or order, then such portion shall remain in effect only to the extent permitted, and the remaining portions of the Contract shall remain in full force and effect. Any invalid portions shall be substituted with an interpretation that most accurately reflects the Parties’ intentions.

32. Tax Benefits. Unless otherwise specified in this Contract, Energy Services Contractor is solely entitled to claim tax benefits available under section 179D of the Internal Revenue Code (EPAct), or its successor.

33. Attorney’s Fees. In the event any legal action is commenced to enforce this Agreement, the prevailing party is entitled to reasonable attorney’s fees, costs, and expenses incurred.

34. Amendment. This Contract may not be amended except pursuant to a written amendment signed by an authorized signer of each Party.

35. Headings. The headings of this Contract are for purposes of reference only and shall not limit or define the meaning of the provisions of this Contract.

36. Complete Agreement. This Contract, including the exhibits attached hereto, is a fully integrated agreement and contains the entire understanding between Energy Services Contractor and Customer with respect to the subject matter hereof. Any legal terms and conditions appearing in any attachment to this Contract shall be ignored to the extent they contradict or are inconsistent with the terms and conditions contained in the foregoing numbered paragraphs. All previous agreements between Energy Services Contractor and Customer as to the Work are superseded by this Contract.

37. Contract Documents. By this reference, the following exhibits are attached hereto and made a part of this Contract:

Exhibit A: Energy Services Proposal, dated (insert date) Exhibit B: Provisions Required for Public Works Contracts IN WITNESS WHEREOF, the parties hereto have executed this Contract as of the Effective Date.

Packet Page 230

ENERGY SERVICES CONTRACTOR
By:

Printed Name:

Title:

Date Signed:

CUSTOMER
By:

Printed Name:

Title:

Date Signed:

Packet Page 231

EXHIBIT “B”

PROVISIONS REQUIRED FOR PUBLIC WORKS CONTRACTS
PURSUANT TO CALIFORNIA LABOR CODE SECTION 1720 ET SEQ.

HOURS OF WORK:

A. In accordance with California Labor Code Section 1810, 8 hours of labor in performance of the services described in Exhibit A shall constitute a legal day’s work under this contract.

B. In accordance with California Labor Code Section 1811, the time of service of any worker employed in performance of the services described in Exhibit A is limited to 8 hours during any one calendar day, and 40 hours during any one calendar week, except in accordance with California Labor Code Section 1815, which provides that work in excess of 8 hours during any one calendar day and 40 hours during any one calendar week is permitted upon compensation for all hours worked in excess of 8 hours during any one calendar day and 40 hours during any one calendar week at not less than one-and-one-half times the basic rate of pay.

C. The Consultant and its subcontractors shall forfeit as a penalty to the City $25 for each worker employed in the performance of the services described in Exhibit A for each calendar day during which the worker is required or permitted to work more than 8 hours in any one calendar day, or more than 40 hours in any one calendar week, in violation of the provisions of California Labor Code Section 1810 and following.

WAGES:

A. In accordance with California Labor Code Section 1773.2, the City has determined the general prevailing wages in the locality in which the services described in Exhibit A are to be performed for each craft or type of work needed to be as published by the State of California Department of Industrial Relations, Division of Labor Statistics and Research, a copy of which is on file in the City Public Works Office and shall be made available on request. The Consultant and subcontractors engaged in the performance of the services described in Exhibit A shall pay no less than these rates to all persons engaged in performance of the services described in Exhibit A.

B. In accordance with California Labor Code Section 1775, the Consultant and any subcontractors engaged in performance of the services described in Exhibit A shall comply with California Labor Code Section 1775, which establishes a penalty for each worker engaged in the performance of the services described in Exhibit A that the Consultant or any subcontractor pays less than the specified prevailing wage. The amount of such penalty shall be determined by the Labor Commissioner and shall be based on consideration of the mistake, inadvertence, or neglect of the Consultant or subcontractor in failing to pay the correct rate of prevailing wages, or the previous record of the Consultant or subcontractor in meeting applicable prevailing wage obligations, or the willful failure by the Consultant or subcontractor to pay the correct rates of prevailing wages. A mistake, inadvertence, or neglect in failing to pay the correct rate of prevailing wages is not excusable if the Consultant or subcontractor Packet Page 232

had knowledge of their obligations under the California Labor Code. The Consultant or subcontractor shall pay the difference between the prevailing wage rates and the amount paid to each worker for each calendar day or portion thereof for which each worker was paid less than the prevailing wage rate. If a subcontractor worker engaged in performance of the services described in Exhibit A is not paid the general prevailing per diem wages by the subcontractor, the Consultant is not liable for any penalties therefore unless the Consultant had knowledge of that failure or unless the Consultant fails to comply with all of the following requirements:

1. The contract executed between the Consultant and the subcontractor for the performance of part of the services described in Exhibit A shall include a copy of the provisions of California Labor Code Sections 1771, 1775, 1776, 1777.5, 1813, and 1815.

2. The Consultant shall monitor payment of the specified general prevailing rate of per diem wages by the subcontractor by periodic review of the subcontractor’s certified payroll records.

3. Upon becoming aware of a subcontractor’s failure to pay the specified prevailing rate of wages, the Consultant shall diligently take corrective action to halt or rectify the failure, including, but not limited to, retaining sufficient funds due the subcontractor for performance of the services described in Exhibit A.

4. Prior to making final payment to the subcontractor, the Consultant shall obtain an affidavit signed under penalty of perjury from the subcontractor that the subcontractor has paid the specified general prevailing rate of per diem wages for employees engaged in the performance of the services described in Exhibit A and any amounts due pursuant to California Labor Code Section 1813.

C. In accordance with California Labor Code Section 1776, the Consultant and each subcontractor engaged in performance of the services described in Exhibit A shall keep accurate payroll records showing the name, address, social security number, work, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed in performance of the services described in Exhibit A. Each payroll record shall contain or be verified by a written declaration that it is made under penalty of perjury, stating both of the following:

1. The information contained in the payroll record is true and correct.

2. The employer has complied with the requirements of California Labor Code Sections 1771, 1811, and 1815 for any work performed by the employer’s employees on the public works project.

The payroll records required pursuant to California Labor Code Section 1776 shall be certified and shall be submitted directly to the Labor Commission, and available for inspection by the Owner and its authorized representatives, the Division of Labor Standards Enforcement, the Division of Apprenticeship Standards of the Department of Industrial Relations and shall otherwise be available for inspection in accordance with California Labor Code Section 1776.

D. In accordance with California Labor Code Section 1777.5, the Consultant, on behalf of the Consultant and any subcontractors engaged in performance of the services described in Exhibit A, shall be responsible for ensuring compliance with California Labor Code Section 1777.5 governing employment and payment of apprentices on public works contracts.

Packet Page 233

E. In case it becomes necessary for the Consultant or any subcontractor engaged in performance of the services described in Exhibit A to employ for the services described in Exhibit A any person in a trade or occupation (except executive, supervisory, administrative, clerical, or other non-manual workers as such) for which no minimum wage rate has been determined by the Director of the Department of Industrial Relations, the Consultant or subcontractor shall pay the minimum rate of wages specified therein for the classification which most nearly corresponds to services described in Exhibit A to be performed by that person. The minimum rate thus furnished shall be applicable as a minimum for such trade or occupation from the time of the initial employment of the person affected and during the continuance of such employment.

Packet Page 234
City Council: April 13, 2023
LED Streetlight Upgrade
Packet Page 235
City Council: April 13, 2023
LED Streetlight Upgrade
Background – Existing Infrastructure
• City owns and maintains approximately 2800
streetlights
• Majority are high-pressure sodium (HPS)
• HPS are characterized as one of the poorest light
quality lamp technologies still being used
• All new developments are required to install
LED streetlights
Packet Page 236
City Council: April 13, 2023
LED Streetlight Upgrade
LED Technology Benefits
• Upgrading to LED is anticipated to reduce power
by 67%
• Significant energy and maintenance cost savings
• Improved volume of color
• Uniform light distribution
• Longer useful life
Packet Page 237
City Council: April 13, 2023
LED Streetlight Upgrade
LED Technology

HPS LED
Packet Page 238
City Council: April 13, 2023
LED Streetlight Upgrade
LED Technology

HPS LED
Packet Page 239
City Council: April 13, 2023
LED Streetlight Upgrade
Cost Savings

PROJECT COST SUMMARY
Total Project Cost $1,598,265
Estimated First Year Annual
Savings
$218,757
Project Payback 7.3 yrs
Projected 15-year Net
Cumulative Savings
$4,551,722*
*Based on 4% estimated PG&E annual utility cost escalation Packet Page 240
City Council: April 13, 2023
LED Streetlight Upgrade
Procurement Method
• California Government Code 4217
• Enacted because of energy crisis
• Allows alternatives to typical competitive
bidding requirements
• Energy project is less than energy costs in
absence of the project
• Public hearing with two weeks notice
• Best interest of the City
Packet Page 241
City Council: April 13, 2023
LED Streetlight Upgrade
Funding Recommendation
• Energy Conservation Assistance Act (ECAA) by
the California Energy Commission
• Designed to encourage energy efficient
projects
• 1% interest for the term of the loan
• Loan payments will be made from energy
savings
Packet Page 242
City Council: April 13, 2023
LED Streetlight Upgrade

SCHEDULE
April
2023
May/June
2023
Fall
2023
EOY
2023
• Council
Action
• ECAA
Application
• Loan
approval
• Contract
Execution
• Installation
begins
(pending
material lead
time)
Project
Completion
Packet Page 243
City Council: April 13, 2023
LED Streetlight Upgrade
Thank you!
Questions?
Packet Page 244
Item  F. 1.

DATE 04/13/2023
TO Honorable Mayor and City Council Members
FROM Brett Oeverndiek, Administrative Analyst
SUBJECT    Adopt a Resolution amending the 2022-2024 Biennial Budget and Capital Improvement Plan for Fiscal Year 2023 for Capital Improvement Plan budget rollovers SUMMARY AND RECOMMENDATION
Staff annually reviews the previously approved Capital Improvement Plan projects' budgets and expenses to identify projects that remain in progress at the fiscal year-end and must have unspent funds rolled over to the following fiscal year. Staff recommends that the City Council, by Resolution, amend the 2022-2024 Biennial Budget and Capital Improvement Plan for the Fiscal Year 2023 Capital Improvement Plan Rollover.

BACKGROUND
As part of the previous fiscal year-end process, staff reviews the City's unspent appropriations, along with the City's upcoming spending plans. With each new budget year, it is necessary to bring forward the unspent appropriations in the approved Capital Improvement Plan once all prior fiscal year transactions have been finalized. It is then necessary to formally amend the 2022-2024 Biennial Budget and Capital Improvement Plan to re-appropriate the FY 2022 unspent appropriations to FY 2023.

DISCUSSION/ANALYSIS
The capital budget amendments include rollovers totaling $21,196,876 of previously approved capital project appropriations, including streets and roadway projects, street trees and landscape maintenance projects, building maintenance projects, final costs on the New Civic Center project and other projects. The amount is projected based on the estimated costs to complete the approved capital projects being carried over from the previous year.  It is now necessary to amend the 2022-2024 Biennial Budget and Capital Improvement Plan to re-appropriate the FY 2022 unspent appropriations to FY 2023.

The attached Exhibit A outlines all capital projects that require rollover of appropriations from FY 2022 and re-appropriated to FY 2023.

FISCAL IMPACT
The capital budget amendments include rollovers totaling $21,196,876 of previously Packet Page 245
The capital budget amendments include rollovers totaling $21,196,876 of previously approved capital project appropriations,
REVIEW AND APPROVAL
Prepared by – Brett Oeverndiek, Administrative Analyst
Reviewed by – Soren Fajeau, Public Works Director
Reviewed by - Krysten Lee, Finance Director
Reviewed by – Kristopher J. Kokotaylo, City Attorney
Approved by – Lenka Hovorka, Assistant City Manager
Attachments
Resolution
Exhibit A
Packet Page 246
(062217 jir1)
RESOLUTION NO.

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
NEWARK AMENDING THE 2022-2024 BIENNIAL BUDGET

AND CAPITAL IMRPOVEMENT PLAN FOR FISCAL YEAR
2022-2023 CAPITAL IMPROVEMENT PLAN ROLLOVERS
WHEREAS, during the annual review of capital projects for the Fiscal Year 2022-2023, a need has been identified to amend the 2022-2024 Biennial Budget and Capital Improvement Plan; and
WHEREAS, the Fiscal Year 2021-2022 appropriations have lapsed at year-end and projects that are ongoing or works in progress need to be re-appropriated for the Fiscal Year 2022-2023; and
WHEREAS, the capital budget amendments include rollovers totaling $21,196,836 of previously approved capital project appropriations, including streets and roadway projects, street trees and landscape maintenance projects, building maintenance projects, final costs associated with the New Civic Center project and other projects; and WHEREAS, the rollover amount is projected based on estimated costs to complete the approved capital projects.

NOW THEREFORE, BE IT RESOLVED that the City Council of the City of Newark does hereby amend that certain document entitled “2022-2024 Biennial Budget and Capital Improvement Plan of the City of Newark,” adopted by Resolution No. 11,379 on June 23, 2022, for Fiscal Year 2022-2023 for Capital Improvement Plan rollovers as set forth in Exhibit A attached.

Packet Page 247
City of Newark Exhibit A
Capital Projects Budget Rollover
Fiscal Year 2022-2023
Capital Transfer Transfer Total by
Fund Fund/Project Description Project Rollovers From Amount Fund Park Construction (624.90.093.930.6221)
624 City Wide Parks Signage 1272 80,000
Sportsfield Outfield Net Replacement 1273 30,000 110,000 Street Construction (XXX-90.091.910.6221)
201 Citywide Traffic Signal Street Name Signs 1201 63,441 Lindsay Tract Street and Storm Drain Improvements 1238 1,305,612 Mowry Avenue Median Landscaping 1239 260,000
2021 Asphalt Concrete Overlay 1250 215,050
Arterial Bike Lanes 1254 91,475
Citywide Crosswalk Evaluation 1256 150,000
Old Town PDA Streetscape Design 1258 490,371
Citywide Accessible Pedestrian Ramps 1277 189,560
Notes: Reapproriating CIP Prj. # 1167 ($59,950) 1200 ($20,000) 1255 ($50,000) Citywide Crosswalk Evaluation and Modifications 1278 91,946 Curb, Gutter and Sidewalk Replacement 1279 350,000
Safe Route to Schools Improvements - Various Locations 1280 249,950 2022 Asphalt Concrete Overlay 1281 945,750
Street Tree Maintenance 1282 28,037
Thermoplastic Street Striping 1283 23,960
Notes: Reapproriating CIP Prj. # 1261 ($15,000)
Thornton Avenue Complete Streets - Design 1284 676,000
Traffic Calming Measure 1285 272,984
Notes: Reapproriating CIP Prj. # 1160 ($17,984) 1182 ($28,500) 1224 ($23,000) 1243 ($43,500) 1262 ($80,000) Traffic Signals - LED Lamp/Accessory Replacement 1286 57,639 Notes: Reapproriating CIP Prj. # 1225 ($7,639) 1263 ($25,000) 202 2,600,000
281 495,312
284 1,700,000 5,461,775
202 Lindsay Tract Street and Storm Drain Improvements 1238 658,000 658,000 211 Citywide Accessible Pedestrian Ramps (Ongoing) 1234 40,000 40,000 214 Park Pathways Resurfacing for ADA Access 1232 77,386 Park Pathways Resurfacing for ADA Access 1297 203,500 280,886 280 Central Ave Overpass Project Development - Phase I 1014 474,874 474,874 281 2021 Asphalt Concrete Overlay 1250 290,815 290,815
282 Lindsay Tract Street and Storm Drain Improvements 1238 188,132 2021 Curb, Gutter & Sidewalk 1257 23,768 211,900
284 Citywide Accessible Pedestrian Ramps (Ongoing) 1234 20,000 Lindsay Tract Street and Storm Drain Improvements 1238 90,000 2020 Curb, Gutter & Sidewalk 1247 199,950
2021 Asphalt Concrete Overlay 1250 129,015 438,965
285 2020 Curb, Gutter & Sidewalk 1247 182,176
2021 Curb, Gutter & Sidewalk 1257 91,003
282 230,000
284 15,044 273,179
287 2021 Asphalt Concrete Overlay 1285 80,000 80,000
288 Arterial Bike Lanes 1254 323,000 323,000
Arterial Bike Lanes (TFCA) 1254 130,000 130,000
Capital Improvements (XXX.90.094.940.6221)
625 Citywide Building Needs Assessment 1274 100,000
Citywide Rail Station Alternatives Study 1275 80,000
Railroad Quiet Zone Study 1276 39,613 219,613
610 Disaster Recovery Infrastructure 747 100,000
Surplus Property Disposal - Old FS No. 1 845 16,800
Document Retention 884 71,129
Crystal Springs Storm Drain Pump Repairs 933 25,000
Lakeshore Park Lake Dredging Needs Scoping Analysis 935 25,000 Service Center Clean Water Requirements 1058 95,000
Finance System Replacement (Part 2) 1086 685,305
Irrigation Main Line Partial Replacement at Community Park 1088 198,053 Transition to Paperless Documents 1090 8,122
Silliman Activity Center Improvements 1114 254,593
Packet Page 248
City of Newark Exhibit A
Capital Projects Budget Rollover
Fiscal Year 2022-2023
Capital Transfer Transfer Total by
Fund Fund/Project Description Project Rollovers From Amount Fund Trash Capture Devices 1122 67,608
Web Site Upgrade 1185 77,660
Citywide HVAC Replacements 1144 26,824
Lakeshore Park Landscape Restoration 1146 300,564
Silliman Activity Center - Light Control Board 1153 50,000 Silliman Aquatic Center - Variable Frequency Drive Unit 1157 45,000 Citywide Building Painting 1164 77,631
Citywide Building Roof Repairs 1165 121,055
Citywide Building Upgrades 1166 11,091
Citywide Parking Lot Repair and Resealing 1168 37,213
Citywide Parks/City Facilities Fence Repairs 1169 9,069 Citywide Parks Furniture Installation/Replacement 1170 10,000 Citywide Parks Irrigation Systems Upgrade/Modification 1171 170,000 Park Pathways Repair and Resealing 1175 77,120
Park Renovation 1176 3,950
New Civic Center 1188 6,320,516
Silliman Aquatic Center Activity Pool Play Structure Replacement 1190 27,535 Silliman Aquatic Center Pool Slide Replacement 1191 7,599 2018 Park Tree Grid Pruning 1195 6,495
Birch Grove Park Tree Maintenance 1196 7,526
Bayside TOD Transit Station and Overcrossing (Design) 1197 700,000 Birch Grove Park Tennis Court Resurfacing 1198 38,413
Citywide Trash Capture Devices (Phase 3) 1202 229,705
Citywide Work Station Replacement 1203 35,341
Jerry Raber Ash Street Park Basketball Court Resurfacing 1209 40,000 Lakeshore Park Well Rehabilitation and Pump Replacement 1211 75,000 Newark Community Park Restroom Restoration 1215 60,000
Silliman Activity Center - Carpet Replacement 1219 15,842 Virtual History Museum 1226 60,000
Fire Station No. 27 Painting 1235 32,000
Fire Station No. 27 Roofing 1236 55,000
Fire Station No. 29 Painting 1237 23,000
Service Center Rear Garage Repairs 1240 75,000
Service Center Buildings, Painting 1241 80,000
Fire Station No. 27 - Fencing 1264 8,000
Fire Station No. 29 - Fencing 1265 20,000
PD Department Bar Car Patrol Vehicle 1266 84,000
PD Patrol Vehicle 1267 84,000
PD Replacement Scheduling and Workforce Management Software 1268 78,867 PW Maintenance Vehicle 1269 60,000
Silliman Center Water Heater Replacement 1271 100,000
Newark Civic Center Technology 1292 37,355
PD vehicles - Sergeant & Vehicle Abatement 1223 16,126
Permit Tracking System Software Upgrades 1296 147,763
Public Works Maintenance Spray Truck 1287 80,000
Public Works Maintenance Vehicle 1288 60,000
Silliman Center - Air Handler #2 Replacement 1289 350,000 Silliman Aquatic Center - Hot Tub Replacement 1290 300,000 Silliman Aquatic Center - Partial Roof Replacement 1291 325,000 12,203,869 21,196,876
Packet Page 249
Item  F. 2.

DATE 04/13/2023
TO Honorable Mayor and City Council Members
FROM James Scanlin, Environmental Services Manager
SUBJECT    Adopt a resolution approving a ten-year extension to the Franchise Agreement with Allied Waste Services of North America LLC (Republic Services) for collection of solid waste and collection and processing of source separated recyclable material, organic materials, and construction and demolition debris and revising the maximum limit for rates for solid waste collection, recycling, organics, and construction and demolition debris services starting on June 1, 2023
SUMMARY AND RECOMMENDATION
After an extensive RFP process in 2012, the City selected Allied Waste Services of North America LLC (Republic Services) and entered into a ten-year exclusive franchise agreement for collection of solid waste and collection and processing of source separated recyclable materials, organic materials, and construction and demolition debris. The agreement expires on May 31, 2023 and allows for an extension with the mutual consent of both parties. The proposed amended and restated agreement is for a ten-year extension with a 7.36% rate increase. The proposed rate increase is primarily related to the additional cost of implementing SB 1383 requirements and other program enhancements. Even with the proposed increase, the rates in Newark are generally more favorable than other neighboring jurisdictions.

Staff recommends that the City Council adopt a resolution authorizing the City Manager to execute the proposed amended and restated agreement with Republic Services and approve a revised rate schedule (Exhibit L).

BACKGROUND
On January 24, 2013, the City entered into an exclusive franchise agreement with Allied Waste Services of North America LLC (Republic Services) for collection of solid waste and collection and processing of source separated recyclable materials, organic materials, and construction and demolition debris (Agreement). The Agreement expires on May 31, 2023. The City has a separate agreement with BLT Enterprises of Fremont, LLC (BLT) for the transfer of solid waste to landfill. The BLT agreement has a 30-year term that expires on June 30, 2037.

In September 2016, Governor Brown signed Senate Bill 1383 (SB 1383) into law, which directs the Department of Resources Recycling & Recovery (CalRecycle) to adopt regulations and requirements to achieve statewide goals of reducing organic waste disposal by 75% and to recover at least 20% of surplus food currently being Packet Page 250
disposed by 2025. CalRecycle has established numerous organic waste disposal program requirements impacting municipal jurisdictions, solid waste generators, processors, and organic waste haulers. While the City and Republic Services have made significant progress towards achieving SB 1383 goals and CalRecycle requirements, amendments to the Agreement are necessary for full compliance.

SB 1383 is California's most significant waste reduction mandate in the last 30 years.

The City must expand commercial and residential organics waste collection programs, develop edible food recovery programs, and instill procurement mechanisms for SB 1383 qualifying recycled content products. The City will also be expected to enforce, track, and report on organic waste diversion goals.

In July 2022, the City hired R3 Consulting Group, Inc. (R3) to assist staff with developing a new franchise agreement. On November 10, 2022, staff made a presentation to Council and recommended pursuing an extension of the Agreement with Republic Services. Council authorized R3 to begin negotiations with Republic Services regarding an extension of the existing Agreement.

DISCUSSION/ANALYSIS
SB 1383 compliance
Methane is a potent greenhouse gas (GHG) that results from the anaerobic decomposition of organic material, and emissions from landfills are a significant source of methane to the atmosphere. Senate Bill 1383 (SB 1383) requires municipalities to reduce the volume of organic material being disposed of in landfills and thereby reduce GHG emissions. Significant changes to current waste management practices must be implemented to accomplish this.

Some residents and many businesses do not currently have separate bins for the collection of organic material (i.e., food scraps, food soiled paper, and yard waste). SB 1383 requires all residents and businesses to have bins for the separate collection and disposal of organic material unless they receive a waiver. Residents will receive this service at no additional cost. The additional cost for the collection and processing of organic material from residents will be borne by Republic Services.

In addition to providing for the separate collection and processing of organic material, Republic Services will be required to promote and enforce proper sorting of organic material. These efforts will include inspecting waste bins for contamination (e.g., trash in an organics container), notifying customers of contamination issues, and promoting proper sorting to Newark residents and businesses through public outreach and technical assistance. The proposed agreement requires Republic Services to inspect at least 15% of accounts annually. Republic Services will also be required to provide detailed tracking and reporting on these activities. To accomplish this, Republic Services will hire a full-time Recycling Coordinator/Route Auditor to work exclusively on SB 1383 implementation in Newark. Republic Services will also pay Newark $75,000 towards the purchase of new material sorting labels for residential carts and will provide up to 400 tons of SB 1383 compliant compost to the City annually.

Additional Service Enhancements
Packet Page 251
Additional Service Enhancements
In addition to the enhancements related to SB 1383 implementation, the proposed agreement includes the following:

Bulky Item Pickup: In addition to retaining the free bulky pickup service at three times per year for each customer, the proposed agreement includes additional free roll-off bin service for multi-family properties.

Construction and Demolition (C&D) Debris: To improve diversion rates for C&D debris, the proposed agreement includes requirements for additional assistance to C&D customers and third-party certification of the C&D debris recycling process at the Newby Island facility.

Analysis
In reviewing Republic’s request for a 10-year extension, staff evaluated the following:

1. The City’s level of satisfaction with Republic Service’s current provision of services.

2. The current market environment for solid waste collection and hauling operations.

3. The current regulatory environment and upcoming regulations.

4. Customer rates including a comparison to other local cities.

5. Term of agreement.
1) Level of Satisfaction
Based upon a 2021 survey of residents, residents are generally satisfied with the service they are receiving: 77% of residents surveyed said they were “Satisfied” or “Very Satisfied” with their waste management services.

At the November 10, 2022 Council meeting, the following concerns were expressed:

Long Hold Times for Customer Service Calls: Council expressed concerns regarding instances of exceedingly long hold times for customer service calls. This issue seems to have been resolved. Republic Services reported that the average hold time is now less than 90 seconds, and they will be implementing an option for call-backs if there is an extended hold time. Staff have called the customer service line several times and the calls were answered immediately, and excellent customer service was provided.

Charges for Services Not Rendered: Council expressed concerns regarding instances of customers being charged for services not rendered. The proposed extension includes a requirement for Republic Services to reimburse customers if waste is not picked up within a day of the scheduled pickup or if bins at accounts with lock service are not replaced in the enclosure and locked. (The lock fee will be revised to be consistent with the City of Fremont's fee.) Overflowing Bins/Graffiti: Council expressed concerns regarding bins at some commercial properties that were overflowing or were covered with graffiti. Republic Services has been and will continue to address the graffiti issue through repainting or replacement of bins. Republic Services will provide photo documentation and charge a fee for carts or bins that are overfilled.

Senior/Low-Income Discounts: Council expressed support for continued or enhanced senior and low-income discounts. Staff analyzed the City's current discount program and compared it to other jurisdictions within the county.

Newark's current senior/low-income discount is above average for jurisdictions within the county as some other jurisdictions do not offer discounts. Newark's Packet Page 252
franchise agreement provides for a 15% discount on monthly garbage rates for seniors and low income residents. This discount is similar to several other jurisdictions that offer similar discounts. The City of Fremont is an outlier, offering a 30% discount for low-income residents. There are currently 254 Newark households receiving the low-income discount and 1,171 receiving the senior discount. The proposed agreement maintains the current discounts.

City staff’s experience with Republic Services has been positive. Republic Services staff have been very responsive when customer complaints have arisen, and Republic Services has been working closely and effectively with staff to meet SB 1383 requirements including increasing the level of organics service participation at commercial properties.
2) Market Analysis
Given the anticipated impact of SB 1383 requirements, uncertainty in recycling markets due to changes in international trade policy for recyclables (the China National Sword), and limited capacity for processing organic materials, the solid waste hauling market’s appetite for competitive bidding on new contracts is low, and going out to competitive bid may result in high rate increases.

Republic Services currently collects garbage, recyclables, organics and construction and demolition debris in Newark, Fremont, and Union City. The Republic Services regional office is located in Fremont. The garbage for all three cities is transferred to BLT in Fremont. The organic materials, recyclables, and C&D debris from Newark and Union City are transferred to Newby Island Recycling (Newby) in Milpitas while all collected material in Fremont is sent to BLT. Newby is owned and operated by Republic Services. Due to the joint ownership of, and close proximity to the Newby facility, and the franchise agreements for collection services in Fremont and Union City, Republic Services has the benefit of economies of scale and can offer more competitive rates than other providers. Republic Services also has the advantage, as the incumbent hauler, of unique knowledge about the service needs and geography of the City. For these reasons, as well as the relatively low requested cost increase for SB 1383 compliance, staff believes it is in the City’s best interests to exercise the 10-year extension of Republic’s agreement, with the stated negotiated terms. 3) Regulatory Analysis
The State continues to set ambitious recycling goals via new legislation which primarily places responsibility for implementing new recycling programs on local jurisdictions.

The significant State laws that apply to the City include:

AB 939, which set a statewide diversion goal of 50% from 1990 levels by 2000.

AB 341, which set a goal of 75% diversion statewide by the year 2020 and requires businesses that generate more than four cubic yards of commercial solid waste per week and multifamily residential dwellings of five units or more to arrange for recycling services, on and after July 1, 2012.

AB 1826, which set a goal of reducing organic waste by 50% by 2020, and required local jurisdictions to arrange a commercial organics collection program that includes food scraps on and after July 1, 2016.

SB 1383, which sets a statewide goal to reduce organic waste by 50% from the Packet Page 253
2014 level by 2020 and 75% from the 2014 level by 2025 and introduces numerous other requirements, including residential food waste collection. SB 1383 also establishes a target of recovering 20% of currently disposed edible food for human consumption by 2025.

Republic Services has already demonstrated significant value to the City by assisting in AB 939 and AB 1826 compliance under the City’s current contract. Under the terms of the new contract, Republic Services will assist the City in achieving compliance with State regulations under SB 1383, which requires significant changes to collection operations to facilitate universal participation in organics diversion from the landfill. The proposed Amended and Restated Agreement places most of the requirements for SB 1383 implementation on Republic Services.
4) Rate Analysis
R3 conducted a comparison analysis around Republic Services proposed rates, rate structure and solid waste services to those of neighboring or other similar jurisdictions in the Bay Area. A graph illustrating the rate comparison for the 32-gallon residential size is provided in Figure 1, below. The 32 gallon cart is by far the most popular size with approximately 70% of residents choosing that cart size. The comparison of rates for other residential cart sizes and for a 3 cubic yard commercial bin follow. Newark’s commercial rates are generally lower than the average of the surveyed jurisdictions across all rate categories.

Figure 1: Residential Rate Comparison: 32-Gallon, Updated for June 2023

Packet Page 254
Figure 2: Residential Rate Comparison: 20-Gallon, Updated for June 2023 Figure 3: Residential Rate Comparison: 64-Gallon, Updated for June 2023 Figure 4: Residential Rate Comparison: 96-Gallon, Updated for June 2023 Packet Page 255
Figure 5: 3 Cubic Yard Commercial Rate Comparison, Updated for June 2023 * R3 increased all the surveyed rates of the other jurisdictions from 2022 by an assumed CPI increase. Tables above, are therefore projected rates and may not match actual current rates.

Table 1, below, shows the rate increase that would be effective June 1, 2023 for residential customers (increase in actual dollars).

Table 1: Dollar Amount of Monthly Rate Increase for Residential Customers 20 Gallon $2.53
30-35 Gallon $2.81
60-64 Gallon $4.98
90-96 Gallon $7.15
The proposed agreement changes the index for annual rate adjustments from the All Urban Consumer Index (CPI-U) to the Water, Sewer, Trash (WST) index. This index aligns more closely with actual costs for waste management. Over the last five years the CPI-U has increased more rapidly than the WST (See Table 2). The proposed agreement includes a cap of 5% on annual rate increases. The proposed agreement also provides for up to two detailed rate reviews that can be initiated by the City or Republic Services.

Table 2: Comparison of Water Sewer Trash (WST) vs All Consumers (CPI-U)

WST CPI-U
2019 3.62% 4.51%
2020 3.09% 2.97%
2021 3.27% 3.68%
2022 3.66% 4.65%
2023 4.66% 5.66%
Average 3.66% 4.29%
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5) Term Analysis
A 10-year extension term would align with the industry standard, and the City would benefit from adjusting contract terms to meet upcoming regulatory requirements.

Although the City’s current contract is generally comprehensive, the additional provisions negotiated in the contract extension would facilitate SB 1383 compliance.

These revisions include the provision of route audits for contamination monitoring, container color and labeling adjustments, assistance in meeting compost procurement requirements, increased outreach and education to all organic waste generators, and increased reporting requirements. While other term lengths are possible, the most common length for solid waste collection contracts is 10 years. Given the adjustments to meet SB 1383 that are described above, a longer-term length allows some of the up-front immediate costs of compliance to be recovered in later years, providing rate increase “smoothing” that is not possible with shorter term lengths.

Staff recommends the City execute an amended and restated agreement with Republic Services for a 10-year extension to the solid waste agreement in a form approved by the City Attorney and in substantially the same form as the attached draft amended and restated agreement. The negotiated agreement modifications will result in approved service levels and ensure full compliance with existing and new state mandates.

FISCAL IMPACT
The City collects a franchise fee based upon Republic’s collected revenue; that franchise fee payment is anticipated to increase by an amount equivalent to the approved rate increase.

REVIEW AND APPROVAL
Prepared by - James Scanlin, Environmental Services Manager Reviewed by - Soren Fajeau, Public Works Director
Reviewed by - Krysten Lee, Finance Director
Reviewed by - Kristopher J. Kokotaylo, City Attorney
Approved by - Lenka Hovorka, Assistant City Manager
Attachments
Amended and Restated Franchise Agreement
Exhibit L-Rate Sheet
Republic Resolution
Franchise Agreement Presentation
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AMENDED AND RESTATED FRANCHISE AGREEMENT

BETWEEN

THE CITY OF NEWARK
AND

ALLIED WASTE SERVICES OF NORTH AMERICA LLC
FOR

COLLECTION OF SOLID WASTE
AND

COLLECTION AND PROCESSING OF

SOURCE SEPARATED RECYCLABLE MATERIALS, ORGANIC

MATERIALS, AND C&D
JUNE 1, 2023
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City of Newark/Allied Waste
June 1, 2023 -i- Franchise Agreement

TABLE OF CONTENTS
RECITALS........................................................................................................ 1 ARTICLE 1. GRANT AND ACCEPTANCE OF FRANCHISE ...................... 2

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

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

1.3 OBLIGATIONS OF PARTIES ........................................................................... 3 ARTICLE 2. TERM OF AGREEMENT .......................................................... 4

2.1 TERM AND OPTION TO EXTEND.................................................................. 4

2.2 CONDITIONS TO EFFECTIVENESS OF AGREEMENT................................ 4 ARTICLE 3. SCOPE OF AGREEMENT......................................................... 5

3.1 SUMMARY SCOPE OF SERVICES.................................................................. 5

3.2 USE OF APPROVED FACILITIES.................................................................... 5

3.3 SUBCONTRACTING......................................................................................... 6

3.4 RESPONSIBILITY FOR MATERIALS ............................................................. 6

3.5 CITY-DIRECTED CHANGES TO SCOPE........................................................ 6 ARTICLE 4. SCOPE OF SERVICES............................................................... 7

4.1 SINGLE-FAMILY RESIDENTIAL SERVICES ................................................ 9

4.2 MULTI-FAMILY RESIDENTIAL SERVICES................................................14

4.3 COMMERCIAL SERVICES ............................................................................18

4.4 CONSTRUCTION AND DEMOLITION DEBRIS (C&D) ..............................21

4.5 SERVICES FOR CITY FACILITIES AND SCHOOLS ...................................23

4.6 SPECIAL EVENTS...........................................................................................23

4.7 TRANSPORTATION OF COLLECTED MATERIALS ..................................24

4.8 DISPOSAL AND PROCESSING OF COLLECTED MATERIALS ................24

4.9 PUBLIC EDUCATION AND OUTREACH.....................................................33

4.10 MULTI-FAMILY/COMMERCIAL TECHNICAL ASSISTANCE ..................34

4.11 BILLING...........................................................................................................35

4.12 CUSTOMER SERVICE PROGRAM................................................................36

4.13 CITY WEB-BASED ACCESS TO INFORMATION .......................................37

4.14 AB 939, AB 341, AB 1826, SB 1383, AND COUNTY ORGANICS REDUCTION & RECYCLING ORDINANCE COMPLRATESNCE..............38

4.15 ACWMA BENCHMARK SERVICE INFORMATION FEE ...........................38

4.16 COMMUNITY SUPPORT................................................................................38

4.17 ROUTE REVIEWS AND COMPLIANCE REVIEWS....................................39 ARTICLE 5. STANDARD OF PERFORMANCE.......................................... 40

5.1 GENERAL ........................................................................................................40 Packet Page 260
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June 1, 2023 -ii- Franchise Agreement

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

5.3 COLLECTION STANDARDS .........................................................................41

5.4 VEHICLE REQUIREMENTS...........................................................................42

5.5 CONTAINER REQUIREMENTS.....................................................................42

5.6 PERSONNEL....................................................................................................45

5.7 HAZARDOUS WASTE INSPECTION AND HANDLING.............................46

5.8 CITY CONTRACT MANAGER.......................................................................47

5.9 COOPERATION WITH CITY AND STOPWASTE........................................47

5.10 BILLING AUDIT AND PERFORMANCE REVIEW......................................48

5.11 DIVERSION REQUIREMENT ........................................................................49 ARTICLE 6. RECORD KEEPING AND REPORTING................................ 50

6.1 RECORD KEEPING AND AUDIT OF RECORDS .........................................50

6.2 REPORT SUBMITTAL REQUIREMENTS.....................................................51 ARTICLE 7. FRANCHISE FEES AND OTHER FEES................................. 52

7.1 FRANCHISE FEE.............................................................................................52

7.2 ADJUSTMENT TO FEES.................................................................................52

7.3 PAYMENT SCHEDULE AND LATE FEES....................................................52

7.4 ONE-TIME NEGOTIATIONS PAYMENT......................................................52

7.5 SB 1383 FEE.....................................................................................................53 ARTICLE 8. CONTRACTOR'S COMPENSATION AND RATE SETTING
......................................................................................................................... 53

8.1 GENERAL ........................................................................................................53

8.2 RATES AND ANNUAL ADJUSTMENTS ......................................................53

8.3 APPROVED TRANSFER FACILITY COST RECONCILIATION.................55

8.4 EXTRAORDINARY RATE ADJUSTMENTS.................................................55 ARTICLE 9. INDEMNITY, INSURANCE, AND PERFORMANCE BOND 56

9.1 INDEMNIFICATION .......................................................................................56

9.2 INSURANCE ....................................................................................................57

9.3 PERFORMANCE BOND .................................................................................59

9.4 GUARANTY.....................................................................................................59 ARTICLE 10. DEFAULT AND REMEDIES ................................................. 60

10.1 EVENTS OF DEFAULT...................................................................................60

10.2 RIGHT TO TERMINATE UPON EVENT OF DEFAULT ..............................61

10.3 CITY’S REMEDIES IN THE EVENT OF DEFAULT.....................................61

10.4 POSSESSION OF RECORDS UPON TERMINATION...................................62

10.5 CITY'S REMEDIES CUMULATIVE; SPECIFIC PERFORMANCE ..............62

10.6 PERFORMANCE STANDARDS AND LIQUIDATED DAMAGES ..............62

10.7 EXCUSE FROM PERFORMANCE (“FORCE MAJEURE”) ..........................64

10.8 RIGHT TO DEMAND ASSURANCES OF PERFORMANCE........................64 Packet Page 261
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June 1, 2023 -iii- Franchise Agreement
ARTICLE 11. REPRESENTATIONS AND WARRANTIES OF THE
PARTIES......................................................................................................... 65

11.1 CONTRACTOR’S CORPORATE STATUS ....................................................65

11.2 CONTRACTOR’S CORPORATE AUTHORIZATION...................................65

11.3 AGREEMENT WILL NOT CAUSE BREACH................................................65

11.4 NO LITIGATION .............................................................................................66

11.5 NO ADVERSE JUDICIAL DECISIONS..........................................................66

11.6 NO LEGAL PROHIBITION.............................................................................66

11.7 CONTRACTOR’S ABILITY TO PERFORM ..................................................66

11.8 IRAN CONTRACTING ACT CERTIFICATION ............................................66 ARTICLE 12. OTHER AGREEMENTS OF THE PARTIES........................ 66

12.1 RELATIONSHIP OF PARTIES........................................................................66

12.2 COMPLIANCE WITH LAW............................................................................67

12.3 GOVERNING LAW .........................................................................................67

12.4 JURISDICTION................................................................................................67

12.5 BINDING ON SUCCESSORS..........................................................................67

12.6 ASSIGNMENT ................................................................................................. 67

12.7 NO THIRD PARTY BENEFICIARIES ............................................................68

12.8 WAIVER...........................................................................................................68

12.9 NOTICE PROCEDURES..................................................................................68

12.10 REPRESENTATIVES OF THE PARTIES .......................................................69 ARTICLE 13. MISCELLANEOUS AGREEMENTS..................................... 69

13.1 ENTIRE AGREEMENT ...................................................................................69

13.2 SECTION HEADINGS.....................................................................................70

13.3 REFERENCES TO LAWS................................................................................70

13.4 AMENDMENTS...............................................................................................70

13.5 SEVERABILITY ..............................................................................................70

13.6 COUNTERPARTS............................................................................................70

13.7 EXHIBITS.........................................................................................................70 Packet Page 262
City of Newark/Allied Waste
June 1, 2023 -iv- Franchise Agreement

LIST OF EXHIBITS
A. Definitions
B. Public Education and Outreach Requirements
C. Reporting Requirements
D. Maximum Rate Adjustment Methodology
D1. Index-Based Maximum Rate Adjustment Methodology
D2. Cost-Based Maximum Rate Adjustment Methodology
E. Performance Standards and Liquidated Damages
F. List of City and Newark Unified School District Facilities and Special Events G. Guaranty Agreement
H. Cart Specifications
I. Contractor’s Proposal
J. Contractor’s Faithful Performance Bond
K. Labor Agreements
L. Maximum Rates Approved by City for Rate Period One
M. Approved Subcontractors
N. Operating Assumptions and Cost Basis for Contractor’s Original Proposal O. RESERVED
P. Example Web-Based Reports
Q. Protocol for Management of Residue
R. Contractor’s Iran Contracting Act Certification
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City of Newark/Allied Waste
June 1, 2023 1 Franchise Agreement
1 Franchise Agreement
2 between
3 City of Newark
4 and
5 Allied Waste Services of North America LLC
6 for
7 Collection of Solid Waste and Collection and Processing of Source 8 Separated Recyclable Materials, Source Separated Organic Materials, 9 and C&D
10 THIS FRANCHISE AGREEMENT is made and entered into as of _________________, 2023, between the 11 City of Newark, California, a political subdivision of the State of California (hereinafter "City"), and Allied 12 Waste Services of North America LLC, dba Allied Waste Services of Alameda County, (hereinafter referred 13 to as the "Contractor").
14 RECITALS
15 This Agreement is entered into with reference to the following facts and circumstances:
16 WHEREAS; the Legislature of the State of California, by enactment of the California Integrated Waste 17 Management Act of 1989 (AB 939) (California Public Resources Code Section 40000 et seq.), has declared 18 that it is in the public interest to authorize and require local agencies to make adequate provisions for 19 Solid Waste Collection within their jurisdiction;
20 WHEREAS; the State of California has found and declared that the amount of refuse generated in 21 California, coupled with diminishing disposal capacity and potential adverse environmental impacts from 22 landfilling and the need to conserve natural resources, have created an urgent need for State and local 23 agencies to enact and implement an aggressive integrated waste management program. The State has, 24 through enactment of the AB 939, directed the responsible State agency, and all local agencies, to 25 promote Diversion and to maximize the use of feasible waste reduction, re-use, Recycling, and 26 Composting options in order to reduce the amount of refuse that must be disposed; 27 WHEREAS; pursuant to California Public Resources Code Section 40059(a)(2), the City has determined that 28 the public health, safety, and well-being require that an Exclusive Right be awarded to a qualified 29 Contractor to provide for the Collection, transportation, and Processing (where permitted under this 30 Agreement) of Solid Waste, Source Separated Recyclable Materials, Source Separated Organic Materials, 31 Residue or Equivalent Residue, C&D, and other Discarded Materials, excluding Excluded Waste, and other 32 services related to meeting the City’s integrated waste management goals; 33 WHEREAS; the City further declares its intent to approve and maintain reasonable Maximum Rates for 34 the Collection, Recycling, Processing, Composting, transfer, and/or disposal of Solid Waste, Source 35 Separated Recyclable Materials, Source Separated Organic Materials, and C&D; and, 36 WHEREAS; the City has determined that Contractor, by demonstrated experience, reputation and 37 capacity is qualified to provide for both the Collection of Solid Waste, Source Separated Recyclable 38 Materials, Source Separated Organic Materials, and C&D within the corporate limits of the City and the 39 transportation of such material to appropriate places of Processing, Recycling, Composting, transfer, 40 and/or disposal; and, therefore, desires that Contractor be engaged to perform such services on the basis Packet Page 264
City of Newark/Allied Waste
June 1, 2023 2 Franchise Agreement
41 set forth in this Agreement.
42 WHEREAS; the City and Contractor have attempted to address conditions affecting their performance of 43 services under this Agreement but recognize that reasonably unanticipated conditions may occur during 44 the Term of this Agreement that will require the Parties to meet and confer to reasonably respond to such 45 changed conditions;
46 NOW, THEREFORE, in consideration of the mutual promises, covenants, and conditions contained in this 47 Agreement and for other good and valuable consideration, the Parties agree as follows:
48 ARTICLE 1. GRANT AND ACCEPTANCE OF FRANCHISE
49 1.1 GRANT AND ACCEPTANCE OF FRANCHISE
50 By the signing of this Agreement, City grants to Contractor and Contractor accepts an exclusive franchise 51 within the corporate limits of the City. The franchise granted to Contractor shall be for the Exclusive Right 52 (pursuant to the definition in Article 1) including the scope of services described in Articles 3 and 4 of this 53 Agreement, subject to the limitations to Contractor’s Exclusive Right described in Section 1.2 and except 54 where otherwise precluded by Federal, State, and local laws and regulations. 55 1.2 LIMITATIONS TO THE FRANCHISE
56 The award of this Agreement shall not preclude the categories of Solid Waste, Source Separated 57 Recyclable Materials, Source Separated Organic Materials, and C&D listed below from being delivered to 58 and Collected and transported by others to the extent described in the following limitations, and further 59 provided that nothing in this Agreement is intended to or shall be construed to excuse any Person from 60 obtaining any authorization from City which is otherwise required by law. 61 A. Recyclable and Organic Materials. Other Persons shall maintain the right to: (1) accept Source 62 Separated Recyclable Materials and Source Separated Organic Materials donated from the service 63 recipient, or (2) to pay the service recipient for Source Separated Recyclable Materials and Source 64 Separated Organic Materials so long as there is no net payment made by the service recipient to 65 such other Person;
66 B. Self-Hauled Materials. A Commercial business Owner, Occupant or Resident may transport Solid 67 Waste, Recyclable Materials, Organic Materials, and C&D generated in or on their own Premises 68 by their own Person and transported with their own vehicle for the purposes of delivery to 69 transfer, Processing, or disposal facilities;
70 C. Donated Materials. Any items which are separated from other materials at any Premises by the 71 Customer or Generator and donated to youth, civic, or charitable organizations; 72 D. Beverage Containers. Containers delivered for Recycling under the California Beverage Container 73 Recycling and Litter Reduction Act, Section 14500, et seq. California Public Resources Code; 74 E. Materials Removed by Owner’s or Occupant’s Contractor as Incidental Part of Services. Solid 75 Waste, Recyclable Materials, Organic Materials, and/or C&D removed from a Premises by a 76 contractor (e.g., gardener, landscaper, tree-trimming service, demolition contractor,) as an 77 incidental part of the service being performed and such contractor is providing a service which is 78 not included in the scope of this Agreement;
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June 1, 2023 3 Franchise Agreement
79 F. Animal, Grease Waste, and Used Cooking Oil. Animal waste and remains from slaughterhouse 80 or butcher shops, grease, or used cooking oil;
81 G. Sewage Treatment By-Product. By-products of sewage treatment, including sludge, sludge ash, 82 grit, and screenings;
83 H. Excluded Waste. Excluded Waste regardless of its source; and, 84 I. Materials Generated by State, County, and Federal Facilities. Materials generated by State, 85 County, and Federal facilities located in the City provided that the Customer or Generator has 86 arranged services with other Persons or has arranged services with the Contractor through a 87 separate agreement.
88 Contractor acknowledges and agrees that the City may permit other Persons besides the Contractor to 89 Collect any and all types of materials excluded from the scope of this Franchise, as set forth above, without 90 seeking or obtaining approval of Contractor. If Contractor can produce evidence that other Persons are 91 servicing Collection Containers or are Collecting and transporting Solid Waste, Recyclable Materials, 92 Organic Materials, and/or C&D (collectively “Franchised Materials”) in a manner that is not consistent 93 with this Agreement or the City’s Municipal Code, it shall report the location, the name and phone number 94 of the Person or company to the City’s Contract Manager along with Contractor’s evidence. In such case, 95 Contractor shall place a sticker on the Container, notify the Customer, Generator and Person providing 96 service by letter (with copy to the City) of Contractor’s rights under this Agreement, explain the 97 infringement including location, date and time of infringement, and provide a specified date and time (not 98 less than 48 hours for the first infringement by the Person providing services nor less than 24 hours for 99 the second infringement by the same Person) by which the illegal provision of service must cease (i.e., 100 illegal container removed). In the event that other Persons continue servicing materials included in the 101 exclusive scope of the Agreement, or encroaching on Contractor’s Exclusive Rights under this Agreement 102 in other ways, Contractor shall notify City.
103 This Agreement and scope of this franchise shall be interpreted to be consistent with Applicable Law, now 104 and during the Term of the Agreement. If future judicial interpretations of current law or new laws, 105 regulations, or judicial interpretations limit the ability of the City to lawfully contract for the scope of 106 services in the manner and consistent with all provisions as specifically set forth herein, Contractor agrees 107 that the scope of the Agreement will be limited to those services and materials which may be lawfully 108 included herein and that the City shall not be responsible for any lost profits or losses claimed by 109 Contractor to arise out of limitations to the scope or provisions of the Agreement set forth herein. In such 110 an event, it shall be the responsibility of Contractor to minimize the financial impact of such future judicial 111 interpretations or new laws and the Contractor may meet and confer with City and may petition for a 112 Maximum Rate adjustment pursuant to Section 8.4.
113 1.3 OBLIGATIONS OF PARTIES
114 In addition to the specific performance required under the Agreement, City and Contractor shall:
115 1. Use their reasonable commercial efforts to enforce the exclusiveness of the franchise by the 116 Contractor’s identification and documentation of violations of the Agreement and the City’s 117 notification of Customers, Generators and collection companies reasonably believed to be 118 violating the exclusive rights of the franchise regarding the terms of this Agreement. 119
120 2. Provide timely notice to one another of a perceived failure to perform any obligations under this Packet Page 266
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121 Agreement and access to information demonstrating the Party’s failure to perform. 122 3. Provide timely access to the City Contract Manager and the Contractor’s designated 123 representative and complete and timely responses to requests of the other Party. 124 4. Provide timely notice of matters which may affect either Party’s ability to perform under the 125 Agreement.
126 ARTICLE 2. TERM OF AGREEMENT
127 2.1 TERM AND OPTION TO EXTEND
128 The Term of this Agreement shall commence June 1, 2023 (Commencement Date) and continue in full 129 force for a period of ten (10) years, through and including June 30, 2033. unless the Agreement is extended 130 in accordance with this Section or terminated in pursuant to Section 10.2. 131
132 Extension of Term. Contractor may request up to two five (5) year extensions to the Term, and at City’s 133 sole discretion, City may grant Contractor’s request to extend the Term, with a new termination date of 134 June 30, 2038, for the first extension and June 30, 2043, for the second extension. Under no circumstance 135 will City be obligated to extend the Term. The Term of this Agreement shall only be extended with the 136 prior written consent of both Parties. Should the Parties choose to extend this Agreement, both Parties 137 shall meet and confer no later than one (1) year prior to the expiration of this Agreement to determine 138 and specify the duration and terms of such extension. Between the Effective Date and Commencement 139 Date, Contractor shall perform all activities necessary to prepare itself to start providing services required 140 by this Agreement on the Commencement Date.
141 The City may, at the end of the Term or optional extended Term, as appropriate, either renegotiate the 142 terms and conditions of the Agreement with Contractor or request proposals from qualified contractors 143 to provide Collection Services.
144
145 2.2 CONDITIONS TO EFFECTIVENESS OF AGREEMENT
146 The obligation of City to permit this Agreement to become effective and to perform its undertakings 147 provided for in this Agreement is subject to the satisfaction of all the conditions below, each of which may 148 be waived, in written form, in whole or in part by City. 149 A. Accuracy of Representations. The Contractor’s representations and warranties made in 150 Contractor’s Proposal and Article 11 of this Agreement are true and correct on and as of the 151 Effective Date.
152 B. Furnishings of Insurance and Performance Bond. Contractor has furnished evidence of the 153 insurance and performance bond required by Article 9 that is satisfactory to the City. 154 C. Absence of Litigation. To the best of Contractor's knowledge, after reasonable investigation, 155 there is no action, suit, proceeding or investigation, at law or in equity, before or by any court or 156 governmental authority, commission, board, agency or instrumentality decided, pending or 157 threatened against Contractor wherein an unfavorable decision, ruling or finding, in any single 158 case or in the aggregate, would:

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159 1. Materially adversely affect the performance by Contractor of its obligations hereunder; 160 2. Adversely affect the validity or enforceability of this Agreement; or, 161 3. Have a material adverse effect on the financial condition of Contractor, or any surety or 162 entity guaranteeing Contractor's performance under this Agreement. 163 ARTICLE 3. SCOPE OF AGREEMENT
164 3.1 SUMMARY SCOPE OF SERVICES
165 The Contractor or its Subcontractor(s) shall be responsible for the following:
166 A. Collecting Solid Waste, Source Separated Recyclable Materials, Source Separated Organic 167 Materials, and C&D generated by and placed for Collection by Customers or Generator that are 168 subscribers of Contractor’s services pursuant to requirements of Article 4; 169 B. Transporting Collected Solid Waste, and materials Collected through the on-call bulky clean-up 170 program (other than Reusable Materials collected at no cost by a third party) to the Approved 171 Transfer Facility pursuant to requirements of Article 4; 172 C. Transporting to and Processing Source Separated Recyclable Materials, Source Separated Organic 173 Materials, and Source Separated Recyclable C&D at the appropriate Approved Facilities; 174 D. Performing all other services required by this Agreement including, but not limited to, Customer 175 billing, public education, Customer service, record keeping, and reporting pursuant to Articles 4 176 and 6 and Exhibits B (Public Education and Outreach) and C (Reporting); 177 E. Furnishing all labor, supervision, vehicles, Containers, other equipment, materials, supplies, and 178 all other items and services necessary to perform its obligations under this Agreement; 179 F. Paying all expenses related to provision of services required by this Agreement including, but not 180 limited to, taxes, regulatory fees, City fees, and utilities; 181 G. Performing or providing all services necessary to fulfill its obligations in full accordance with this 182 Agreement at all times using best industry practice for comparable operations; and, 183 H. Complying with all Applicable Laws.
184 The enumeration and specification of particular aspects of service, labor, or equipment requirements shall 185 not relieve Contractor of the duty to perform all other tasks and activities necessary to fulfill its obligations 186 under this Agreement, regardless of whether such requirements are enumerated elsewhere in the 187 Agreement, unless excused in accordance with Section 10.7. 188 3.2 USE OF APPROVED FACILITIES
189 The Contractor, without constraint and as a free-market business decision in accepting this Agreement, 190 agrees to use the Approved Facilities for the purposes of Processing and/or Disposing of all Solid Waste, 191 Source Separated Recyclable Materials, Source Separated Organic Materials, C&D, and other materials 192 Collected in the City. Such decision by Contractor in no way constitutes a restraint of trade 193 notwithstanding any Change in Law regarding flow control limitations or any definition thereof. 194 Contractor shall maintain accurate records of the quantities of Solid Waste, Source Separated Recyclable Packet Page 268
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195 Materials, Source Separated Organic Materials, and C&D transported to the transfer, Disposal, Processing, 196 or Composting Facilities and will cooperate with City in any audits or investigations of such quantities. 197 Contractor shall pay all tipping fees and other costs associated with transporting to and Processing and/or 198 Disposing Solid Waste, Source Separated Recyclable Materials, Source Separated Organic Materials, C&D, 199 and other materials Collected in the City at the Approved Facilities. 200 Contractor shall observe and comply with all regulations in effect at the Approved Facilities, and shall 201 cooperate with and take direction from the operators thereof with respect to delivery of Solid Waste, 202 Source Separated Recyclable Materials, Source Separated Organic Materials, C&D, and other materials 203 Collected in the City. Contractor shall actively work with the Approved Facilities operators throughout the 204 Term of this Agreement to minimize contamination of the Source Separated Recyclable Materials, Source 205 Separated Organic Materials, and C&D Collected under this Agreement and delivered to the Approved 206 Facilities.
207 3.3 SUBCONTRACTING
208 Contractor shall not engage any Subcontractors for Collection, transportation, or Processing of Solid 209 Waste, Source Separated Recyclable Materials, Source Separated Organic Materials, or C&D services 210 without the prior written consent of City Contract Manager. As of the Effective Date of this Agreement, 211 City has approved Contractor’s use of those subcontractors included in Exhibit M. If the Contractor plans 212 to engage other Affiliate or related party entities in the provision of services, Contractor shall obtain 213 written approval from City Contract Manager thirty (30) days prior to its plans to use party. Contractor 214 shall submit written request to the City seeking approval of other Affiliate or related party entities. Such 215 request shall include a description of its plans, name and qualifications of party, and an explanation of any 216 potential impacts related to the quality, timeliness, or cost of providing services under this Agreement. 217 3.4 RESPONSIBILITY FOR MATERIALS
218 Once Solid Waste, Source Separated Recyclable Materials, Source Separated Organic Materials, and C&D 219 are placed in the Contractor’s Containers and at the Collection location, the responsibility for their proper 220 handling shall transfer directly from the Customer or Generator to Contractor, with the exception of 221 Excluded Waste if the Contractor can identify the Customer or Generator pursuant to Section 5.7.B. Once 222 Solid Waste, Source Separated Recyclable Materials, Source Separated Organic Materials, or C&D are 223 deposited by Contractor at the appropriate Approved Facility, such materials shall become the 224 responsibility of the Owner or operator of the Approved Facility with the exception of Excluded Waste 225 pursuant to Section 5.7.C.
226 Responsibility for Excluded Waste that has been inadvertently Collected by the Contractor shall remain 227 with the Contractor if it cannot identify the Customer or Generator, and Contractor shall assume all 228 responsibility for its proper disposal.
229 3.5 CITY-DIRECTED CHANGES TO SCOPE
230 City may meet and confer with Contractor to establish the scope of any additional services or modification 231 to existing services (which may include modifications regarding use of Approved Facilities) to be provided 232 under this Agreement. In such case, Contractor shall present, within thirty (30) calendar days of City’s 233 request, a written proposal to provide such modified or additional services.

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234 City shall review the Contractor’s proposal for the change in scope of services. City and Contractor may 235 meet and confer to negotiate Contractor’s proposed revisions and costs and shall amend this Agreement, 236 as appropriate, to reflect the mutually agreed-upon changes in scope. 237 ARTICLE 4. SCOPE OF SERVICES
238 A. Contractor shall perform the services described in this Article 4. Failure to specifically require an 239 act necessary to perform the service does not relieve Contractor of its obligation to perform such 240 act.
241 B. Three-Container Organic Materials Collection Services. Phased Implementation. Beginning on the 242 Effective Date, all new customers will be provided collection service including Recycling Container, 243 Organics Container and Garbage Container collection service, except for those new customers 244 who are exempt or who obtain waivers from the City. Between the Effective Date and December 245 31, 2023, Contractor shall continue to expand its Organic Materials collection service to existing 246 customers within City, with at least two customer contact attempts (phone call or site visit) per 247 customer that is out of compliance. By January, 2024, Contractor shall deliver Organic Materials 248 collection service to all of its residential customers within City who are subscribed to and pay for 249 Solid Waste collection service, except for those customers who are exempt or who obtain waivers 250 from the City. By January, 2024, Contractor shall deliver Organic Materials collection service to all 251 of its customers within City who are subscribed to and pay for Solid Waste collection service, 252 unless (i) the customer is categorically exempted under City’s municipal code from the 253 requirement to subscribe for Organic Materials collection service, (ii) the customer qualifies for 254 and is granted a State- or City-issued waiver, or (iii) the customer refuses service (Contractor will 255 notify City of any commercial customers that refuse service). Contractor will work with customers 256 to appropriately size collection containers such that source-separation of all materials is possible 257 without any overflow of material, and if any disputes arise or overages occur, the City will make 258 the final determination on proper container size.
259 C. Contractor acknowledges that City is committed to Diverting materials from disposal through the 260 implementation of source reduction, reuse, Recycling, Composting, and other programs, and that 261 City may implement new programs in accordance with Section 3.5 that may impact the overall 262 quantity or composition of materials to be Collected by Contractor, subject to Contractor’s right 263 to petition for a change in City-approved Maximum Rates pursuant to Section 8.4. 264 D. Container Overage and Correction Procedures. If a Customer is found to habitually overflow their 265 Collection Container(s), i.e., lid will not close, and/or material not contained within Container, 266 Contractor may take the steps as listed below to correct Customers’ on-going overflow of 267 material. All customers will be notified of Collection Overages. Contractor shall notify the City 268 regarding Commercial and MFD customers that habitually overflow their Containers. 269 a. Contractor shall provide the Service Recipients the correct combination of Collection 270 Containers and collection frequency that matches each Service Recipient’s unique service 271 needs to enable clean, efficient, and cost-effective collection of Solid Waste, Recyclable 272 Materials, and Organic Waste. City and Contractor agree that overflow of Solid Waste that 273 is not properly in the Service Recipient’s Solid Waste Collection Containers negatively 274 impacts public health and safety. Contractor has also agreed to conduct recycling audits 275 and provide outreach and support to Service Recipient accounts receiving the correct 276 service level. However, if Service Recipients are found to habitually overflow their Solid Packet Page 270
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277 Waste Collection Containers, Contractor may take the steps as listed below to correct 278 Service Recipient’s on-going overflow of Solid Waste. 279 b. If the Service Recipient has made prior arrangements with Contractor for Collection of 280 Solid Waste Overages, Contractor must collect such Overages as arranged, and may 281 charge the Service Recipient the Solid Waste Overage fee (prior arrangement) rate set 282 forth in Exhibit L.
283 c. If the Service Recipient has not made prior arrangements with Contractor for Collection 284 of Solid Waste Overage, (i) Contractor may collect such Solid Waste Overage at no 285 additional charge as a courtesy, (ii) Contractor may not Collect the Solid Waste Overage 286 and leave a Non-Collection Notice explaining the reason for non-collection of the Solid 287 Waste Overage, or (iii) Contractor may Collect the Solid Waste Overage (up to two lifts) 288 and charge the Service Recipient the Solid Waste Overage fee (no prior arrangement) set 289 forth in Exhibit L as provided below, and increase the capacity or frequency of Collection 290 of the existing Collection Container(s) to match documented service needs as provided 291 below. In managing Solid Waste Overages, the following apply:
292 i. SFD Service Recipients – Each Occurrence. For each occurrence Contractor will 293 not collect the Solid Waste Overage if the Collection Container could not be 294 serviced by normal operating procedures or cause spillage upon servicing, and 295 Contractor must provide the following written notice via e-mail, U.S. mail, or in 296 person (which may be by Non-Collection Notice) to the Service Recipient: (i) the 297 date, description and photograph (if possible) of the Solid Waste Overage and 298 document in the Implementation Record. Contractor’s Non-Collection Notice for 299 SFD Service Recipients shall also contain instructions on (a) how to schedule a 300 Large Item Collection or (b) request an additional or larger Collection Container 301 to eliminate future Overages.
302 ii. Commercial and MFD Service Recipients – Each Occurrence. Contractor must 303 provide a written notice on the Container and may provide a copy of the notice 304 via e-mail, U.S. mail, or in person (which may be by Non-Collection Notice) to the 305 Service Recipient with the date, description and photograph (if possible) of the 306 Solid Waste Overage. After one warning notice, Contractor may collect the Solid 307 Waste Overage and may charge the Service Recipient a Solid Waste Overage fee 308 as set forth in Exhibit L. After three Occurrences, Contractor may request that the 309 City direct an increase in the capacity, or collection frequency of the Collection 310 Container to match documented service needs. At least ten (10) Business Days 311 prior to increasing the Collection Container size, or frequency of Collection, 312 Contractor’s representative must also contact the Service Recipient by phone, 313 U.S. mail, e-mail or in person (which may be by Non-Collection Notice) to ensure 314 that Service Recipient has the appropriate level of service. The increased capacity 315 or collection frequency will remain in effect until Contractor and City determines 316 that it is no longer needed to prevent overages.
317 iii. For all overflow surcharges:
318 1. Any overflow collected and charged shall be adequately documented, 319 and such documentation shall be made available to customer and City, 320 upon request, to substantiate any additional charge related to 321 overflowing containers.

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322 2. No overflow charges may be assessed unless there is significant overflow 323 from a container, the container lids are open 30 degrees or more and the 324 overflow has actually been collected by the Contractor. 325 3. No overflow charge may be assessed for overflow that is caused by a prior 326 collection being missed or by containers being repositioned by the 327 Contractor after collection.
328 d. After twelve (12) months have passed from the last applicable Solid Waste Overage 329 occurrence, the next Solid Waste Overage occurrence will be deemed a first Solid Waste 330 Overage occurrence.
331 e. If a Service Recipient disputes a Solid Waste Overage charge or container size or collection 332 frequency change within 30 days of the disputed action, Contractor may request a ruling 333 by the City Manager to resolve the dispute. A request by Contractor to the City Manager 334 to rule on any such dispute should be filed within ten (10) Business Days of Contractor’s 335 halting of a Solid Waste Overage charge, or increased Maximum Rate, and must include 336 written documentation and digital/visual evidence of ongoing overall problems. The City 337 Manager may request a meeting (in person or phone) with both the Service Recipient and 338 Contractor to resolve the dispute. Following such a meeting, the City Manager will rule 339 on the dispute within ten (10) Business Days, and the City Manager’s decision on resolving 340 the dispute between and Service Recipient will be final. If the City Manager rules in favor 341 of the Service Recipient, Contractor must credit the disputed charge or increased 342 Maximum Service Rate. If the City Manager rules in favor of Contractor, Contractor may 343 charge Service Recipient any prior halted Solid Waste Overage charge and/or increased 344 Maximum Service Rate resulting from increasing the Solid Waste Collection Container size 345 or collection frequency and may follow the steps in Section 4.11.F for collection of 346 delinquent accounts.
347 4.1 SINGLE-FAMILY RESIDENTIAL SERVICES
348 A. Solid Waste Collection. Contractor shall Collect Solid Waste in Contractor-provided Carts one (1) 349 time per week from Single-Family Customers and transport all Solid Waste to the Approved Transfer 350 Facility.
351 Containers: Carts
352 Container Sizes: 20-, 35-, 64-, and 96-gallons (as requested by Customer) 353 Service Frequency: One (1) time per week
354 Service Location: Curbside standard; side- or back-yard upon Customer request at additional 355 charge with the exception that side- or back-yard service provided at no charge 356 to disabled Customers in accordance with Section 4.1.G 357 Acceptable Materials: Solid Waste
358 Prohibited Materials: Source Separated Recyclable Materials, Source Separated Organic Materials, 359 Excluded Waste
360 Additional Service: • Contractor shall provide additional Solid Waste Carts to Single-Family 361 Customers upon request and may charge an “Additional Solid Waste Cart” 362 Rate not to exceed the Maximum Rate approved by the City. 363 • Contractor shall establish an “overages” program that allows Single-Family 364 Customers to place additional Solid Waste Curbside (in pre-purchased bags 365 placed adjacent to the Solid Waste Cart) on their regularly-scheduled Packet Page 272
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366 Collection day. Pre-purchase bags shall be sold by Contractor at a Rate not to 367 exceed the City-approved Maximum Rate. Bags can be purchased at 368 Contractor’s Fremont office, located at 42600 Boyce Road. Contractor shall 369 also make pre-paid overages bags available for purchase by mail by 370 Customers that make a request by phone or via Contractor’s website, 371 provided that Contractor may charge the Customer for actual mailing 372 expenses. Contractor shall Collect the pre-purchased overage bags on 373 Customers’ regularly scheduled Collection day at no additional charge for 374 Collection. The Solid Waste overage bags shall be different in appearance 375 than the Yard Waste overage bag so that Customers and Collection vehicle 376 drivers can easily determine the difference.
377 Other Requirements: None
378
379 B. Source Separated Recyclable Materials Collection. Contractor shall Collect Source Separated 380 Recyclable Materials in Contractor-provided Containers one (1) time per week from Single-Family 381 Customers and transport all Source Separated Recyclable Materials to the Approved Recyclable Materials 382 Processing Facility for Processing or, if Residue Levels are ten percent (10%) or greater, Contractor may 383 be directed to transport Source Separated Recyclable Materials to the Approved Transfer Facility. 384 The lists of Acceptable Materials below shall be accepted in the program and not be categorized as 385 residuals for the purpose of Residue Level measurement and Exhibit Q or contractor’s route reviews per 386 4.17.2. Contractor and City mutually agree that some of the listed materials may lack end markets, and as 387 such Contractor shall make best efforts to divert all listed materials, and may request that the City waive 388 the obligation to recover materials if end markets do not exist. If Contractor requests a waiver from that 389 obligation, and City approves, Contractor may remove those materials from educational material 390 distributed to Customers.
391 Containers: Carts
392 Container Sizes: 64-gallon standard Cart size; 35-gallon and 96-gallon Carts upon Customer 393 request in lieu of 64-gallon Cart at no additional charge 394 Service Frequency: One (1) time per week; scheduled so that Collection occurs on the same day as 395 Solid Waste Collection
396 Service Location: Curbside standard; side- or back-yard upon Customer request at additional 397 charge with the exception that side- or back-yard service provided at no charge 398 to disabled Customers in accordance with Section 4.1.G 399 Acceptable Materials: Source Separated Recyclable Materials 400 • Paper including cardboard, office paper, junk mail, envelopes, paper bags, 401 catalogs, egg cartons (cardboard), magazines, packing, craft paper, 402 newspaper, phone books, soft cover books, post-it, wrapping paper (non403 metallic), greeting cards, 404 • Metal including aluminum cans, aluminum trays, aluminum foil, bottle caps, 405 jar lids, steel (tin) cans, empty aerosol cans, empty paint cans, small scrap 406 metal (less than 24 inches)
407 • Plastic including polylactic acid (PLA) bioplastic bottles, bottles, jars, tubs, 408 trays containers, buckets, milk crates, small hard plastic toys (less than 24 409 inches), items numbered 1 to 7, plastic bags and expanded polystyrene (EPS) 410 block
411 • Glass including bottles and jars
412 • Untreated wood
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413 • E-waste that does not require special handling due to its size 414 • Annually, City and Contractor shall meet to discuss adding additional 415 materials for which a viable market can be found
416
417 Prohibited Materials: Solid Waste, Source Separated Organic Materials, C&D, Excluded Waste 418 Additional Service: None
419 Other Requirements: Contractor shall accept household batteries in the Source Separated Recyclable 420 Materials program, provided that those batteries have been separately packaged 421 in a sealed, clear plastic bag and are Recycled.
422
423 C. Source Separated Organic Materials Collection. Contractor shall Collect Source Separated 424 Organic Materials in Contractor-provided Carts one (1) time per week from Single-Family Customers and 425 transport all Source Separated Organic Materials to the Approved Organic Materials Processing Facility 426 for Processing or, if Residue Levels are ten percent (10%) or greater, Contractor may be directed to 427 transport all Source Separated Organic Materials to the Approved Transfer Facility. 428
429 Containers: Carts
430 Container Sizes: 64-gallon standard Cart size; 35-gallon and 96-gallon Carts upon Customer 431 request in lieu of 64-gallon Cart at no additional charge 432 Service Frequency: One (1) time per week; scheduled so that Collection occurs on the same day as 433 Solid Waste Collection
434 Service Location: Curbside standard; side- or back-yard upon Customer request at additional 435 charge with the exception that side- or back-yard service provided at no charge 436 to disabled Customers in accordance with Section 4.1.G 437 Acceptable Materials: Source Separated Organic Materials 438 • Plant trimmings, branches, grass, dead plants, weeds, brush, leaves, tree 439 trimmings, fruits and vegetables, breads and pastas, meat and poultry, 440 seafood, dairy products, waxed cardboard and paper, napkins, paper towels, 441 paper plates and cups, tissue paper, untreated wood 442 • Annually, City and Contractor shall meet to discuss adding additional 443 materials for which a viable market can be found
444
445 Prohibited Materials: Solid Waste, Source Separated Recyclable Materials, C&D, Excluded Waste. 446 Additional Service: Contractor shall establish an “overages” program that allows Single-Family 447 Customers to place additional Yard Waste Curbside (in pre-purchased bags placed 448 adjacent to the Organic Materials Cart) on their regularly-scheduled Collection 449 day. Pre-purchase bags shall be sold by Contractor at a Rate not to exceed the 450 City-approved Maximum Rate. Bags can be purchased at Contractor’s Fremont 451 office, located at 42600 Boyce Road. Contractor shall also make pre-paid 452 overages bags available for purchase by mail by Customers that make a request 453 by phone or via Contractor’s website, provided that Contractor may charge the 454 Customer for actual mailing expenses. Contractor shall Collect the pre-purchased 455 overage bags on Customers’ regularly scheduled Collection day at no additional 456 charge for Collection. The Yard Waste overage bags shall be different in 457 appearance than the Solid Waste overage bag so that Customers and Collection 458 vehicle drivers can easily determine the difference.

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459 Other Requirements: Contractor shall offer to each Single-Family Customer Curbside Collection of 460 Christmas trees beginning on the second Monday following New Year’s Day. In 461 the event New Year’s Day is a Monday, Christmas tree Collection shall commence 462 on the second Tuesday following New Year’s Day and continue for ten (10) 463 Business Days. Christmas trees shall be Collected on the Customer’s regular 464 Collection day during the designated week(s). Customer notification 465 requirements are specified in the public education plan, Exhibit B. 466
467 D. Used Motor Oil and Filter Collection. Contractor shall Collect Used Motor Oil and Filters in a 468 Contractor-provided Used Oil Recovery Kit from Single-Family Customers and properly dispose of or 469 Recycle the Used Motor Oil and Filter. If Used Motor Oil and Filters are not Recycled by Contractor, 470 Contractor shall deliver such material to the Approved Transfer Facility. 471
472 Containers: Used Oil Recovery Kit
473 Container Sizes: Various (as provided by Contractor) 474 Service Frequency: Up to one (1) time per week (as requested by Customer); scheduled so that 475 Collection occurs on the same day as Solid Waste Collection 476 Service Location: Curbside (adjacent to Recyclable Materials Cart) 477 Acceptable Materials: Used Motor Oil and Filter
478 Prohibited Materials: Solid Waste, Source Separated Recyclable Materials, Source Separated Organic 479 Materials, C&D, Excluded Waste
480 Additional Service: Not applicable
481 Other Requirements: Contractor shall provide a Used Oil Recovery Kit to a Customer on the next 482 scheduled service day after such request is made by Customer at no additional 483 cost to Customer. Upon Collection of Used Motor Oil and Filter from a Customer, 484 Contractor shall leave a Used Oil Recovery Kit adjacent to the Recyclables Cart. 485 Contractor shall not be required to Collect more than one (1) Used Oil Recovery 486 Kit per individual dwelling unit per week from Single-Family Customers who 487 request it.
488
489 E. Curbside Bulky Item/Reusable Materials Collection. Contractor shall Collect Bulky Items and 490 other materials listed below from Single-Family Customers and transport all Collected materials to the 491 Approved Transfer Facility (with the exception of Reusable Materials Collected at no cost by a third party). 492
493 Containers: Not applicable
494 Service Level: Up to three (3) cubic yards of Solid Waste, Source Separated Recyclable Materials, 495 Source Separated Organic Materials, Reusable Materials, C&D, and E-Waste or up 496 to one (1) Appliance or Bulky Item
497 Service Frequency: Up to three (3) times per year (as requested by Customer) 498 Service Location: Curbside
499 Acceptable Materials: Solid Waste, Source Separated Recyclable Materials, Source Separated Organic 500 Materials (including small tree stumps not to exceed 16 inches in diameter and 501 length), Reusable Materials, Appliances, Bulky Items, E-Waste, C&D (excluding 502 concrete)
503 Prohibited Materials: Excluded Waste or any single item that exceeds five (5) feet in length or seventy504 five (75) pounds.

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505 Additional Service: • Contractor shall Collect additional items that exceed the required Service 506 Level and may charge an “Additional Bulky Item” Rate not to exceed the 507 Maximum Rate approved by the City (as requested by Customer). 508 • Contractor shall provide additional Collection events for a Customer beyond 509 three (3) per year and may charge an “Additional Bulky Item Collection” Rate 510 not to exceed the Maximum Rate approved by the City. 511 Other Requirements: • The Contractor shall provide the service to the Customer on the Customer’s 512 regularly scheduled Solid Waste Collection day within seven (7) Business Days 513 of the Customer’s requested service date, and such date shall be mutually 514 agreed upon by the Customer and Contractor.
515 • Contractor shall notify Customers that materials shall not be placed Curbside 516 more than twenty-four (24) hours in advance of the scheduled bulky 517 Collection day.
518 • Contractor shall tag any items not Collected and such tag shall indicate the 519 reason the item(s) were not Collected and how to arrange for proper disposal. 520 Within twenty-four (24) hours of tagging item(s), the Contractor shall notify 521 the City Contract Manager via email of Premises where materials were not 522 picked up, describing the type of material(s) and reason. 523
524
525 F. Seasonal Programs. Contractor shall develop and educate Customers about the availability of and 526 participation requirements for programs dealing with seasonal or periodic waste management demands 527 that exceed regularly scheduled Collection including, without limitation: inclusion of Halloween pumpkins 528 in the Organic Materials Carts, holiday tree Collection instructions, and handling of materials from spring 529 cleaning, and fall leavesthrough on-call Curbside bulky clean-up collections and/or the overages program. 530 G. Alternative Service Location for Seniors and Disabled Single-Family Customers. Contractor shall 531 allow for Seniors and Persons that have a disability as defined by the Americans with Disabilities Act (which 532 means Public Law 101-336, 104 Stat. 327, 42 U.S.C. 12101-12213 and 27 U.S.C. 225 and 611, and all 533 Federal rules and regulations relating thereto) that are Occupants of Single-Family Premises to receive 534 Collection services at a location other than Curbside at no extra charge to the Customer for the alternative 535 location. Contractor shall review all applications made by Senior Customers (which shall include a driver’s 536 license or birth certificate) and by disabled Customers (which shall include statements from physicians) to 537 determine conformance with this exemption provision and shall grant exemptions, if applicable. 538 Contractorshall make reasonable accommodations with regard to provision of and servicing of Containers 539 (e.g., Container size and type, placement of Containers for Collection, etc.) at no additional cost to the 540 Customer.
541 H. Vacation Holds. Contractor shall provide temporary vacation holds at no cost to the Customer. In 542 such case, Customer may suspend Collection service for up to four (4) weeks annually and Contractor shall 543 not charge the Customer for service during that period. 544
545 I. Low Income (Life-Line) Rates. Contractor shall provide Residential Collection of Solid Waste at a 546 Rate that is 15% less than the Rate it charges other Single-Family Customers for comparable level of 547 service for eligible, low income subscribers demonstrating that they receive assistance under PG&E's 548 California Alternate Rates for Energy (“CARE”) ratepayer assistance program. Contractor shall determine 549 who is eligible for this Rate. Contractor shall require that life-line Customers submit applications annually 550 to Contractor, and Contractor shall verify continued eligibility each year by review of applications. The 551 Contractor’s Life-Line Rate shall not exceed the Maximum Rate approved by the City.

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552
553 J. Discounted Rates.
554 1. Senior Rates. Contractor shall bill Customers whose heads of household qualify as Seniors 555 (meaning that they are 65 or more years of age) at a Rate that is fifteen percent (15%) less than 556 the Rate it charges other Single-Family Customers for comparable level of service. Contractor 557 shall verify Customer’s eligibility for the Senior discount using driver’s license or birth certificate. 558 Contractor shall require that Customers with Senior discounts submit verification of eligibility 559 every two (2) years to Contractor for review.
560
561 K. Landfill Passes. Contractor shall provide two (2) passes per year to each Single-Family Customer 562 to dispose of up to four (4) cubic yards of material per trip at the Newby Island landfill. Customer shall 563 provide proof of residence. Passes shall not be transferrable to any Person other than the Customer to 564 whom they were issued. Contractor shall make passes available for pick-up at its Fremont office at 42600 565 Boyce Road, as well as via mail. Contractor shall promote this service in each newsletter. The landfill 566 passes shall be provided to Residential units of a duplex, tri-plex, or four-plex provided that each unit is 567 separately billed for their specific service level. 568
569 L. Sharps Disposal by Mail. Contractor shall maintain a mail-back sharps disposal program that shall 570 be available to Single-Family Customers at all times throughout the Term. Contractor shall not be required 571 to offer this service for free or at a discounted rate to City residents. Customer payment for this service 572 shall be a direct transaction between Customer and Contractor and shall not appear on regular Customer 573 billing statements. The costs for this program are not included in Contractor’s Cost Proposal, and are not 574 reflected in Customer Rates. Contractor shall set rates for the mail-back sharps disposal program, and 575 such rates are not subject to City approval.
576 4.2 MULTI-FAMILY RESIDENTIAL SERVICES
577 A. Solid Waste Collection. Contractor shall Collect Solid Waste in Contractor-provided Containers 578 not less than one (1) time per week from Multi-Family Customers and transport all Solid Waste to the 579 Approved Transfer Facility.
580 Containers: Carts, Bins, Drop Boxes, Compactors
581 Container Sizes: 35-, 64-, and 96-gallon Carts;
582 1- to 7-cubic yard Bins; and,
583 6-, 14-, 20-, 30-, and 40-cubic yard Drop Boxes or Compactors 584 (as requested by Customer)
585 Service Frequency: Up to six (6) times per week but not less than one (1) time per week, as 586 requested by Customer
587 Service Location: Curbside or other Customer-selected service location at the Multi-Family 588 Premises
589 Acceptable Materials: Solid Waste
590 Prohibited Materials: Source Separated Recyclable Materials, Source Separated Organic Materials, 591 Excluded Waste
592 Additional Service: Upon Customer request and to accommodate periodic additional service needs, 593 Contractor shall provide Collection service at a greater frequency than the 594 Customer’s regularly scheduled service, up to the maximum Service Level and 595 Contractor may charge an appropriate Rate for the higher Service Level at a Rate 596 not to exceed the Maximum Rate approved by the City.

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597
598 Other Requirements: Contractor shall open and close gates, push and/or pull Containers, lock and 599 unlock Containers, or perform other services as reasonably necessary to access 600 and empty Containers. In instances where the performance of push/pull services 601 pose a significant safety risk to the contractor’s employees, the City shall work 602 with the Customer and/or Contractor to promptly resolve such issues. If 603 containers for which customers are subscribed to Push/Pull or Lock/Unlock 604 services are not re-locked and placed at the same location that they were 605 retrieved from, and Contractor fails to correct customer complaints within the 606 time period specified in Exhibit E, by the end of the Business Day following the 607 receipt of the Customer Complaint, Contractor shall provide a refund for the 608 charge for such services to Customer in the next Customer invoice. 609
610
611 B. Source Separated Recyclable Materials Collection. Contractor shall Collect Source Separated 612 Recyclable Materials in Contractor-provided Containers not less than one (1) time per week from Multi613 Family Customers and transport all Source Separated Recyclable Materials to the Approved Recyclable 614 Materials Processing Facility for Processing or, if Residue Levels are ten percent (10%) or greater, 615 Contractor may be directed to transport all Source Separated Recyclable Materials to the Approved 616 Transfer Facility.
617 The lists of Acceptable Materials below shall be accepted in the program and not be categorized as 618 residuals for the purpose of Residue Level measurement and Exhibit Q or contractor’s route reviews per 619 4.17.2. Contractor and City mutually agree that some of the listed materials may lack end markets, and as 620 such Contractor shall make best efforts to divert all listed materials, and may request that the City waive 621 the obligation to recover materials if end markets do not exist. If Contractor requests a waiver from that 622 obligation, and City approves, Contractor may remove those materials from educational material 623 distributed to Customers.
624 Containers: Carts, Bins, Drop Boxes, Compactors
625 Container Sizes: 35-, 64- and 96-gallon Carts;
626 1- to 7-cubic yard Bins; and,
627 6- , 14-, 20-, 30-,and 40-cubic yard Drop Boxes or Compactors 628 (as requested by Customer)
629 Service Frequency: Up to six (6) times per week but not less than one (1) time per week (as 630 requested by Customer)
631 Service Location: Curbside or other Customer-selected service location at the Multi-Family 632 Premises
633 Acceptable Materials: Source Separated Recyclable Materials 634 • Paper including cardboard, office paper, junk mail, envelopes, paper bags, 635 catalogs, egg cartons (cardboard), magazines, packing, craft paper, 636 newspaper, phone books, soft cover books, post-it, wrapping paper (non637 metallic), greeting cards 638 • Metal including aluminum cans, aluminum trays, aluminum foil, bottle caps, 639 jar lids, steel (tin) cans, empty aerosol cans, empty paint cans, small scrap 640 metal (less than 24 inches)
641 • Plastic including polylactic acid (PLA) bioplastic bottles, bottles, jars, tubs, 642 trays containers, buckets, milk crates, small hard plastic toys (less than 24 643 inches), items numbered 1 to 7, plastic bags and expanded polystyrene (EPS) Packet Page 278
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644 block
645 • Glass including bottles and jars
646 • Carpet and carpet padding that does not require special handling due to its 647 size
648 • Untreated wood
649 • E-waste that does not require special handling due to its size 650 • Annually, City and Contractor shall meet to discuss adding additional 651 materials for which a viable market can be found
652 Prohibited Materials: Solid Waste, Source Separated Organic Materials, C&D, Excluded Waste 653 Additional Service: Upon Customer request and to accommodate periodic additional service needs, 654 Contractor shall provide Collection service at a greater frequency than the 655 Customer’s regularly scheduled service, up to the maximum service frequency 656 and Contractor may charge an appropriate Rate for the higher Service Level not 657 to exceed the Maximum Rate approved by the City.
658 Other Requirements: Contractor shall open and close gates, push and/or pull Containers, lock and 659 unlock Containers, or perform other services as reasonably necessary to access 660 and empty Containers. In instances where the performance of push/pull services 661 pose a significant safety risk to the contractor’s employees, the City shall work 662 with the Customer and/or Contractor to promptly resolve such issues. . If 663 containers for which customers are subscribed to Push/Pull or Lock/Unlock 664 services are not re-locked and placed at the same location that they were 665 retrieved from, and Contractor fails to correct customer complaints within the 666 time period specified in Exhibit E, by the end of the Business Day following the 667 receipt of the Customer Complaint, Contractor shall provide a refund for the 668 charge for such services to Customer in the next Customer invoice. 669
670
671 C. Source Separated Organic Materials Collection. Contractor shall Collect Yard Waste in 672 Contractor-provided Containers one (1) time per week from Multi-Family Customers and transport all 673 Yard Waste to the Approved Organic Materials Processing Facility for Processing or, if Residue Levels are 674 ten percent (10%) or greater, Contractor may be directed to transport all Source Separated Organic 675 Materials to the Approved Transfer Facility.
676
677
678 Containers: Carts, Bins
679 Container Sizes: 35-, 64- and 96-gallon Carts
680 1-, 2-, and 3-cubic yard Bins
681 (as requested by Customer)
682 Service Frequency: Up to five (5) days per week but not less than one (1) day per week, as 683 requested by Customer
684 Service Location: Curbside or other Customer-selected service location at the Multi-Family 685 Premises
686 Acceptable Materials: Yard Waste
687 Prohibited Materials: Solid Waste, Source Separated Recyclable Materials, Food Scraps, C&D, 688 Excluded Waste
689 Additional Service: Contractor shall provide additional Organic Materials Carts or Bins to MultiPacket Page 279 City of Newark/Allied Waste
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690 Family Customers upon request and may charge an “Additional Organics Cart or 691 Bin” not to exceed the Maximum Rate approved by the City. 692 Other Requirements: • Contractor shall open and close gates, push and/or pull Containers, lock and 693 unlock Containers, or perform other services as reasonably necessary to 694 access and empty Containers. In instances where the performance of 695 push/pull services pose a significant safety risk to the contractor’s 696 employees, the City shall work with the Customer and/or Contractor to 697 promptly resolve such issues. . If containers for which customers are 698 subscribed to Push/Pull or Lock/Unlock services are not re-locked and 699 placed at the same location that they were retrieved from, and Contractor 700 fails to correct customer complaints within the time period specified in 701 Exhibit E, by the end of the Business Day following the receipt of the 702 Customer Complaint, Contractor shall provide a refund for the charge for 703 such services to Customer in the next Customer invoice. 704 • Contractor shall offer Collection of Christmas trees from Multi-Family 705 Premises beginning on the second Monday following New Year’s Day. In the 706 event New Year’s Day is a Monday, Christmas tree Collection shall commence 707 on the second Tuesday following New Year’s Day and continue for ten (10) 708 Business Days. Christmas trees shall be Collected on the Customer’s regular 709 Collection day during the designated week(s). Customer notification 710 requirements are specified in the public education plan, Exhibit B. 711
712 D. Food Scrap Collection. City Contract Manager has required Contractor to expand this program to 713 include all Organic Materials including Food Scraps. 714 E. Used Motor Oil and Filter Collection. Contractor shall Collect Used Motor Oil and Filters in a 715 Contractor-provided Used Oil Recovery Kit from Multi-Family Customers and properly dispose of or 716 Recycle the Used Motor Oil and Filter. The requirements of the program shall be the same as that provided 717 for Single-Family Customers as described in Section 4.1.D; however, Contractor shall coordinate with 718 property managers as needed to address any concerns or requests property managers may have. 719 F. Bulky Item/Reusable Materials Collection. Contractor shall Collect Bulky Items and other 720 materials listed below from Multi-Family Customers and transport all Collected materials to the Approved 721 Transfer Facility with the exception of Reusable Materials Collected at no cost by a third party. 722
723
724 Containers: Not applicable
725 Service Level: Up to three (3) cubic yards of Solid Waste, Source Separated Recyclable 726 Materials, Source Separated Organic Materials, Reusable Materials, C&D, and E727 Waste or up to one (1) Appliance or Bulky Item. Additionally, Multi-Family 728 Customers with fifteen (15) yards of weekly Solid Waste service or greater will 729 be eligible for four (4) 20-yard bulky debris boxes annually. Customers with ten 730 (10) to fourteen (14) yards of weekly Solid Waste service will be eligible for two 731 (2) 20-yard bulky debris boxes annually. Customers with five (5) to nine (9) yards 732 of weekly Solid Waste service will be eligible for one (1) 20-yard bulky debris 733 box annually. Multi-Family Customer debris boxes shall be delivered within 734 seven (7) Business Days of the date of the request and shall remain on site for a 735 maximum of five (5) Business Days before they are removed. Material shall not Packet Page 280
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736 be loaded over the top of the Bulky debris box.
737 Service Frequency: Up to three (3) times per year (as requested by Customer) 738 Service Location: Curbside or other Customer-selected service location at the Multi-Family 739 Premises which is immediately accessible by Contractor’s vehicle 740 Acceptable Materials: Solid Waste, Source Separated Recyclable Materials, Source Separated Organic 741 Materials, Reusable Materials, C&D (excluding concrete), Appliances, Bulky 742 Items, E-Waste
743 Prohibited Materials: Excluded Waste or any single item that exceeds seventy-five (75) pounds. 744 Additional Service: • Upon Customer request, Contractor shall Collect additional items which 745 exceed the required Service Level and may charge an “Additional Bulky Item” 746 Rate not to exceed the Maximum Rate approved by the City. 747 • Contractor shall provide additional Collection events for a Customer beyond 748 three (3) per year and may charge an “Additional Bulky Item Collection” Rate 749 not to exceed the Maximum Rate approved by the City. 750 Other Requirements: • The Contractor shall provide the service to the Customer on the Customer’s 751 regularly scheduled Solid Waste Collection day within seven (7) Business Days 752 of the Customer’s requested service date, and such date shall be mutually 753 agreed upon by the Customer and Contractor.
754 • Contractor shall notify Customers that materials shall not be placed adjacent 755 to Containers more than twenty-four (24) hours in advance of the scheduled 756 bulky Collection day.
757 • Contractor shall tag any items not Collected and such tag shall indicate the 758 reason the item(s) were not Collected and describe how to arrange for proper 759 disposal. Within twenty-four (24) hours of tagging item(s), the Contractor 760 shall notify the City Contract Manager via email of Premises where materials 761 were not picked up, describing the type of material(s) and reason. 762
763 G. Seasonal Programs. Contractor shall develop and educate Customers about the availability of and 764 participation requirements for programs dealing with seasonal or periodic waste management demands 765 that exceed regularly scheduled Collection including, without limitation: inclusion of Halloween pumpkins 766 in the Organics Carts and holiday tree Collection instructions. 767 H. Sharps Disposal by Mail. Contractor shall maintain a mail-back sharps disposal program that shall 768 be available to Multi-Family residents at all times throughout the Term. Contractor shall not be required 769 to offer this service for free or at a discounted rate to City residents. Customer payment for this service 770 shall be a direct transaction between Customer and Contractor and shall not appear on regular Customer 771 billing statements. The costs for this program are not included in Contractor’s Cost Proposal, and are not 772 reflected in Customer Rates.
773 4.3 COMMERCIAL SERVICES
774 A. Solid Waste Collection. Contractor shall Collect Solid Waste in Contractor-provided Containers 775 not less than one (1) time per week from Commercial Customers and transport all Solid Waste to the 776 Approved Transfer Facility.
777
778 Containers: Carts, Bins, Drop Boxes, Compactors
779 Container Sizes: 35-, 64-, and 96-gallon Carts;
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780 1- to 7-cubic yard Bins; and,
781 6-, 14-, 20-, 30-, and 40-cubic yard Drop Boxes or Compactors 782 (as requested by Customer)
783 Service Frequency: Up to six (6) times per week but not less than one (1) time per week, as 784 requested by Customer
785 Service Location: Curbside; or other Customer-selected service location at the Commercial 786 Premises
787 Acceptable Materials: Solid Waste
788 Prohibited Materials: Source Separated Recyclable Materials, Source Separated Organic Materials, 789 Excluded Waste
790 Additional Service: Upon Customer request and to accommodate periodic additional service needs, 791 Contractor shall provide Collection service at a greater frequency than the 792 Customer’s regularly scheduled service, up to the maximum Service Level and 793 Contractor may charge an appropriate Rate for the higher Service Level at a 794 Rate not to exceed the Maximum Rate approved by the City. 795 Other Requirements: Contractor shall open and close gates, push and/or pull Containers, lock and 796 unlock Containers, or perform other services as reasonably necessary to access 797 and empty Containers. In instances where the performance of push/pull 798 services pose a significant safety risk to the contractor’s employees, the City 799 shall work with the Customer and/or Contractor to promptly resolve such 800 issues. If containers for which customers are subscribed to Push/Pull or 801 Lock/Unlock services are not re-locked and placed at the same location that 802 they were retrieved from, and Contractor fails to correct customer complaints 803 within the time period specified in Exhibit E, by the end of the Business Day 804 following the receipt of the Customer Complaint, Contractor shall provide a 805 refund for the charge for such services to Customer in the next Customer 806 invoice.
807
808 B. Source Separated Recyclable Materials Collection. Contractor shall Collect Source Separated 809 Recyclable Materials in Contractor-provided Containers not less than one (1) time per week from 810 Commercial Customers and transport all Source Separated Recyclable Materials to the Approved 811 Recyclable Materials Processing Facility for Processing or, if Residue Levels are ten percent (10%) or 812 greater, Contractor may be directed to transport all Source Separated Recyclable Materials to the 813 Approved Transfer Facility.
814 The lists of Acceptable Materials below shall be accepted in the program and not be categorized as 815 residuals for the purpose of Residue Level measurement and Exhibit Q or contractor’s route reviews per 816 4.17.2. Contractor and City mutually agree that some of the listed materials may lack end markets, and as 817 such Contractor shall make best efforts to divert all listed materials, and may request that the City waive 818 the obligation to recover materials if end markets do not exist. If Contractor requests a waiver from that 819 obligation, and City approves, Contractor may remove those materials from educational material 820 distributed to Customers.
821 Containers: Carts, Bins, Drop Boxes, Compactors
822 Container Sizes: 35-, 64- and 96-gallon Carts;
823 1-, 2-, 3-, 4-, 6-, and 7-cubic yard Bins; and,
824 6-, 14-, 20-, 30-, and 40-cubic yard Drop Boxes or Compactors 825 (as requested by Customer)
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826 Service Frequency: Up to six (6) times per week but not less than one (1) time per week, as 827 requested by Customer
828 Service Location: Curbside or other Customer-selected service location at the Commercial 829 Premises
830 Acceptable Materials: Source Separated Recyclable Materials 831 • Paper including cardboard, office paper, junk mail, envelopes, paper bags, 832 catalogs, egg cartons (cardboard), magazines, packing, craft paper, 833 newspaper, phone books, soft cover books, post-it, wrapping paper (non834 metallic), greeting cards 835 • Metal including aluminum cans, aluminum trays, aluminum foil, bottle caps, 836 jar lids, steel (tin) cans, empty aerosol cans, empty paint cans, small scrap 837 metal (less than 24 inches)
838 • Plastic including polylactic acid (PLA) bioplastic bottles, bottles, jars, tubs, 839 trays containers, buckets, milk crates, small hard plastic toys (less than 24 840 inches), items numbered 1 to 7, plastic bags and expanded polystyrene 841 (EPS) block
842 • Glass including bottles and jars
843 • Carpet and carpet padding that does not require special handling due to its 844 size
845 • Untreated wood
846 • E-waste that does not require special handling due to its size 847 • Annually, City and Contractor shall meet to discuss adding additional 848 materials for which a viable market can be found
849 Prohibited Materials: Solid Waste, Source Separated Organic Materials, C&D, Excluded Waste 850 Additional Service: Upon Customer request and to accommodate periodic additional service needs, 851 Contractor shall provide Collection service at a greater frequency than the 852 Customer’s regularly scheduled service, up to the maximum Service Level and 853 Contractor may charge the appropriate Rate for the higher Service Level at a 854 Rate not to exceed the Maximum Rate approved by the City. 855 Other Requirements: Contractor shall open and close gates, push and/or pull Containers, lock and 856 unlock Containers, or perform other services as reasonably necessary to access 857 and empty Containers. In instances where the performance of push/pull services 858 pose a significant safety risk to the contractor’s employees, the City shall work 859 with the Customer and/or Contractor to promptly resolve such issues. If 860 containers for which customers are subscribed to Push/Pull or Lock/Unlock 861 services are not re-locked and placed at the same location that they were 862 retrieved from, and Contractor fails to correct customer complaints within the 863 time period specified in Exhibit E, by the end of the Business Day following the 864 receipt of the Customer Complaint, Contractor shall provide a refund for the 865 charge for such services to Customer in the next Customer invoice. 866
867 C. Source Separated Organic Materials Collection. Customers may elect for this service. Contractor 868 shall Collect Yard Waste in Contractor-provided Containers not less than one (1) time per week from 869 Commercial Customers and transport all Yard Waste to the Approved Transfer Facility. 870
871 Containers: Carts, Bins, Drop Boxes, Compactors
872 Container Sizes: 35-, 64-, and 96-gallon Carts;
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873 1-, 2-, and 3-cubic yard Bins; and,
874 6-, 14-, 20-, 30-,and 40-cubic yard Drop Boxes or Compactors 875 (as requested by Customer)
876 Service Frequency: Up to five (5) times per week but not less than one (1) time per week, as 877 requested by Customer
878 Service Location: Curbside or other Customer-selected service location at the Commercial 879 Premises
880 Acceptable Materials: Organic Materials (Yard Waste, Food Scraps, Food Soiled Paper) 881 Prohibited Materials: Solid Waste, Source Separated Recyclable Materials, C&D, Excluded Waste 882 Additional Service: Upon Customer request and to accommodate periodic additional service needs, 883 Contractor shall provide Collection service at a greater frequency than the 884 Customer’s regularly scheduled service, up to the maximum Service Level and 885 Contractor may charge the appropriate Rate for the higher Service Level at a Rate 886 not to exceed the Maximum Rate approved by the City. 887 Other Requirements: Contractor shall open and close gates, push and/or pull Containers, lock and 888 unlock Containers, or perform other services as reasonably necessary to access 889 and empty Containers. In instances where the performance of push/pull services 890 pose a significant safety risk to the contractor’s employees, the City shall work 891 with the Customer and/or Contractor to promptly resolve such issues. If 892 containers for which customers are subscribed to Push/Pull or Lock/Unlock 893 services are not re-locked and placed at the same location that they were 894 retrieved from, and Contractor fails to correct customer complaints within the 895 time period specified in Exhibit E, by the end of the Business Day following the 896 receipt of the Customer Complaint, Contractor shall provide a refund for the 897 charge for such services to Customer in the next Customer invoice. 898
899
900 4.4 CONSTRUCTION AND DEMOLITION DEBRIS (C&D)
901 Contractor shall offer Source Separated Recyclable C&D Collection services. C&D Collection service shall 902 be a temporary service, provided only at sites where construction, alteration, remodeling, repair, or 903 demolition operations are being performed. C&D Collection services shall be provided to any Customer 904 upon request. Contractor shall work with the Customer to provide Collection services that result in a 905 minimum of sixty-five percent (65%) of the C&D being Collected and Processed as Source Separated 906 Recyclable C&D to comply with C&D Diversion requirements established by the City’s Green Building and 907 Construction and Demolition Debris Recycling Ordinance (Municipal Code Chapter 15.44). Contractor 908 billings to C&D Customers shall include two components: a “per-pull” charge to transport the Drop Box 909 to an Approved Facility, and a charge for the cost of disposal or Processing calculated on a per-Ton basis 910 for actual Tons delivered to the Approved Facility. Such billing shall be at Rates not to exceed City911 approved Maximum Rates. 912 Contractor shall transport all Source Separated Recyclable C&D Collected under this Agreement to the 913 Approved C&D Processing Facility. Contractor shall ensure that all Source Separated Recyclable C&D 914 regardless of residue level collected from job sites in the City is processed as C&D and not disposed. 915 Contractor may place garbage carts at job sites for Garbage disposal to reduce potential contamination of 916 C&D loads; and shall provide such outreach and education to Contractors as described in this Section 4.4 917 and Section 4.8.5. Contractor shall pay all tipping fees and other costs associated with transporting, Packet Page 284
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918 Processing, and disposal of C&D.
919 Contractor shall observe and comply with all regulations in effect at the Approved C&D Processing Facility 920 and Approved Transfer Facility and cooperate with and take direction from the operator thereof with 921 respect to delivery of C&D.
922 A. Source-Separated Recyclable C&D Collection. Contractor shall Collect Source-Separated 923 Recyclable C&D as homogeneous material types (e.g., all metals, all inert materials, all wood waste, etc.) 924 or as mixed Recyclable C&D in Contractor-provided Containers at the frequency requested by C&D 925 Customers. Contractor shall transport all Source-Separated Recyclable C&D to the Approved C&D 926 Processing Facility for Processing or, at Contractor’s discretion, to any Person who will make a net 927 payment to Contractor for the delivery of the Source-Separated Recyclable C&D. 928
929 Containers: Drop Boxes
930 Container Sizes: 6-, 14-, 20-, 30-, and 40-cubic yard Drop Boxes 931 (as requested by Customer)
932 Service Frequency: Up to five (5) times per week but not less than one (1) time per month, as 933 requested by Customer
934 Service Location: Curbside or other Customer-selected service location at the construction site 935 Acceptable Materials: Source-Separated Recyclable C&D, Source Separated Recyclable Materials 936 • Acceptable materials includes discarded building materials, packaging 937 (cardboard, pallets and film plastic), debris and rubble resulting from 938 constructions, alteration, remodeling (including appliances) repair or 939 demolition operations on any houses, Residential and Commercial buildings, 940 pavements, excavation projects, or any other structures, excluding Excluded 941 Waste. Recyclable or Reusable items include, but are not limited to:
942 appliances, asphalt product, brick, ceramics, concrete, dirt, flooring materials 943 (carpet, carpet padding, hardwood, and tile), landscaping materials, lumber, 944 plaster, plastic products, porcelain, roofing materials (tiles and both asphalt 945 and wood shingles), scrap metals, scrap wood, stucco, sheet rock (dry wall), 946 tile, and windows
947 • Annually, City and Contractor shall meet to discuss adding additional 948 materials for which a viable market can be found
949
950 Prohibited Materials: Solid Waste, Source Separated Organic Materials, Excluded Waste 951 Additional Service: Not applicable
952 Other Requirements: Contractor shall document and report to the City Contract Manager each instance 953 where Contractor delivers Source Separated Recyclable C&D to a Person other 954 than the Approved C&D Processing Facility. Such report shall include the Person 955 to whom the materials were delivered, the specific type of materials delivered 956 (e.g., metals, wood, etc.), the number of Tons, and the amount received in 957 payment for the delivery.
958 Contractor shall be responsible for informing C&D Customers or Generators on 959 the proper separation of C&D materials to provide Source Separated Recyclable 960 C&D with Residue Levels acceptable to the Contractor.

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961 4.5 SERVICES FOR CITY FACILITIES AND SCHOOLS
962 A. Collection Services to City Facilities and Schools. Contractor shall Collect Solid Waste, Source 963 Separated Recyclable Materials, Source Separated Organic Materials, C&D, Bulky Items, and Reusable 964 Materials from City and Newark Unified School District facilities in the same manner as those services are 965 provided to Commercial Customers. Contractor shall provide service to all City and Newark Unified School 966 District facilities identified in Exhibit F as well as any future City facilities. Contractor shall provide these 967 services at no cost to the City or Newark Unified School District with the exception that Contractor may 968 charge the Newark Unified School District for Collection of C&D at Rates not to exceed City-approved 969 Maximum Rates. Contractor may charge the City for major public works projects (i.e., projects involving 970 C&D tonnage in excess of 100 tons per project) at Rates not to exceed City-approved Maximum Rates. 971 Contractor shall provide recycling technical assistance to City facilities and schools to assist with 972 implementation and/or expansion of Source Separated Recyclable Materials and Source Separated 973 Organic Materials Collection services.
974 B. Community Clean-Up Events. Contractor shall provide up to four (4) twenty (20) cubic yard Drop 975 Boxes upon request of the City Code Enforcement Department, for use at each City-sponsored community 976 clean-up event, not to exceed four (4) events per year. Contractor shall Collect Solid Waste, Source 977 Separated Recyclable Materials, and/or Source Separated Organic Materials and transport materials to 978 Approved Facilities for Processing or disposal. Contractor shall provide these services at no cost to the 979 City. Contractor shall provide confidential document shredding service at one Community Clean-Up Event 980 annually, and shall divert the shredded materials from disposal. Contractor shall provide these services at 981 no cost to the City.
982 C. Building Plan Review. Contractor shall provide staff with the expertise to review building plans 983 for new Residential and Commercial development projects during the City’s permit review process to 984 verify the reasonableness of the space allocation and enclosure design for Solid Waste, Source Separated 985 Recyclable Materials, and Source Separated Organic Materials Containers and the accessibility of such 986 areas. For these plan reviews, the Contractor may be requested to visit the site and submit written 987 recommendations for improvements to the design. Plan reviews shall be completed within two (2) weeks 988 of the City’s request for such review. The City anticipates approximately five (5) to ten (10) reviews may 989 be requested annually.
990 D. E-Waste Clean-Up from City Facilities. Contractor shall provide on-call E-Waste Collection from 991 City Facility offices up to three (3) times per year. Contractor shall provide this service at no cost to City. 992 4.6 SPECIAL EVENTS
993 Contractor shall provide Solid Waste, Source Separated Recyclable Materials, and Source Separated 994 Organic Materials services to the special events identified in Exhibit F at no cost to the event or City. 995 Special event services include:
996 A. Containers. Contractor shall provide Containers for the aggregation of material removed from 997 event collection stations during the course of the event. Contractor shall provide Containers in 998 sufficient number of appropriate type(s) for the needs of the event as determined by Contractor 999 in cooperation with the event organizer. Contractor shall service Containers, as agreed-upon with 1000 the event organizer, and deliver Collected materials to the appropriate Approved Facility for 1001 Processing and disposal.
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1003 Contractor shall staff a booth or exhibit at the event for the purpose of educating the public about 1004 the services and programs provided by Contractor under this Agreement and the benefits of 1005 source reduction, reuse, Recycling, and Composting. 1006 C. Reporting. Within fourteen (14) calendar days of the end of the event, Contractor shall submit a 1007 report to the City Contract Manager and event organizer. The report should include, at a 1008 minimum: the number of event collection stations deployed at the event, the number of 1009 collection station monitors, the Tonnage of each material type (i.e., Solid Waste, Source Separated 1010 Recyclable Materials, and Source Separated Organic Materials) Collected, and a description of the 1011 public education provided at the event.
1012 D. Sponsorships. Contractor shall provide a minimum of $15,000 (fifteen thousand) dollars annually 1013 in cash sponsorships and complimentary services to community events within the City. 1014 E. Charitable Organizations. Contractor shall provide a minimum of $5,000 (five thousand) dollars 1015 annually in complimentary services beyond regularly scheduled Collection services to local 1016 charitable organizations.
1017 Contractor may, at its sole discretion and expense, coordinate with local youth, community, or charitable 1018 organizations to provide some or all of the required services. Regardless of Contractor’s use of such an 1019 organization, Contractor shall be responsible for ensuring that service is provided at the event in a 1020 professional and timely manner.
1021 For special events not identified in Exhibit F, Contractor shall provide the above-described special event 1022 services at the request of the event organizer and may negotiate the charges for such services with the 1023 event organizer based on the specific needs of the event. 1024 4.7 TRANSPORTATION OF COLLECTED MATERIALS
1025 Contractor shall transport all Solid Waste, Source Separated Recyclable Materials, Source Separated 1026 Organic Materials, C&D, and other materials Collected in the City to the Approved Facilities for the 1027 purposes of Processing and/or disposing such materials. Contractor shall maintain accurate records of 1028 the quantities of Solid Waste, Source Separated Recyclable Materials, Source Separated Organic 1029 Materials, C&D, and other materials transported to the Approved Facilities and will cooperate with City in 1030 any audits or investigations of such quantities.
1031 4.8 DISPOSAL AND PROCESSING OF COLLECTED MATERIALS 1032 4.8.1 Delivery of Materials to Approved Transfer Facility 1033 Contractor shall transport all Solid Waste, and materials Collected through the on-call bulky clean-up 1034 program (other than Reusable Materials collected at no cost by a third party) Collected under this 1035 Agreement to the Approved Transfer Facility, which is selected and approved by City. Unless and until 1036 City otherwise approves, the Approved Transfer Facility shall be the Fremont Recycling and Transfer 1037 Station in Fremont, California. All costs associated with transporting and Disposing Solid Waste, and 1038 materials Collected through the on-call bulky clean-up program (other than Reusable Materials collected 1039 at no cost by a third party) shall be paid by Contractor and may be recovered through Contractor’s 1040 Compensation in accordance with Article 8. The per-Ton fees Contractor shall pay the Approved Transfer 1041 Facility operator shall be determined pursuant to an agreement between the City and the Approved 1042 Transfer Facility operator.

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1043 If the Contractor expects, during the Term of this Agreement, to be prevented from delivering Solid Waste, 1044 and materials Collected through the on-call bulky clean-up program (other than Reusable Materials 1045 collected at no cost by a third party) to the Approved Transfer Facility, it shall notify the City immediately. 1046 Contractor shall then identify alternative transfer and/or disposal facilities and evaluate each. Such 1047 evaluation shall include the Disposal fee, transportation cost, permit status, any known permit 1048 enforcement proceedings and any other criteria used by the Contractor in recommending alternative 1049 transfer and/or disposal facilities. Contractor shall then present its recommendation and evaluation of 1050 alternatives described above to City. City shall either approve the Contractor's recommended transfer 1051 and/or disposal facility or identify an alternative transfer and/or disposal facility. Contractor will 1052 thereafter Dispose of Solid Waste, and materials Collected through the on-call bulky clean-up program 1053 (other than Reusable Materials collected at no cost by a third party) at the alternative site approved by 1054 the City.
1055 Contractor shall cooperate with the operator of the Approved Transfer Facility and comply with the 1056 operator’s requirements such as how and where to unload Collection vehicles, respecting operations and 1057 construction of new facilities, cooperating with the operator’s Hazardous Waste Exclusion Program, 1058 following scale house weighing and recording keeping processes, and other guidelines established for 1059 facility users. Contractor shall plan its Collection routes to be compatible with the Approved Transfer 1060 Facility’s operating hours, which shall be, at a minimum, Monday through Friday from 5:00 a.m. to 5:00 1061 p.m. and Saturday from 8:00 a.m. to 5:00 p.m.
1062
1063 4.8.2 General Processing Requirements
1064 A. Overview. Contractor agrees to transport and deliver all Source Separated Recyclable Materials, 1065 Source Separated Organic Materials, and Source Separated Recyclable C&D it Collects in the City 1066 to the Approved Recyclables Processing Facility, Approved Composting Facility, and Approved 1067 C&D Processing Facility, respectively. Contractor shall pay all costs associated with transfer (if 1068 applicable), transporting, Processing, Composting and marketing Source Separated Recyclable 1069 Materials, Source Separated Organic Materials, and Source Separated Recyclable C&D. 1070 Contractor or its Subcontractor(s) may be required to Dispose of Equivalent Residue from the 1071 Processing and Composting activities at the Approved Transfer Facility. Exhibit Q describes the 1072 protocol for management of Residue.
1073 2. Contractor shall annually provide a letter from organics facilities they deliver organics waste to 1074 stating whether that facility accepts and recovers compostable plastics or can accept and 1075 remove plastic bags when it recovers source separated organic waste as specified in CCR 1076 18994.2 (b) (4) (5).
1077 B. Processing Capacity, Residue, and Facility Permits. Contractor shall secure sufficient capacity to 1078 Process all Source Separated Recyclable Materials, Source Separated Organic Materials, and 1079 Source Separated Recyclable C&D Collected under this Agreement and shall cause the Approved 1080 Facilities to Process and/or Compost, and market the Source Separated Recyclable Materials, 1081 Source Separated Organic Materials, and C&D. Contractor shall provide the City, upon request, 1082 with:
1083 1. Documentation demonstrating the availability of such capacity; and, 1084 2. Name, address and owner/operator of any transfer station used to deliver Packet Page 288
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1085 materials to such site.
1086 Contractor shall use commercially reasonable efforts to achieve a Residue Level of less than ten 1087 percent (10%) for Source Separated Recyclable Materials, less than ten percent (10%) for 1088 Residential Source Separated Organic Materials, and less than ten percent (10%) for Source 1089 Separated Recyclable C&D. The Residue Level shall be determined by Characterizations in 1090 accordance with Exhibit Q attached hereto and incorporated herein by reference. The 1091 consequence and procedures for a Residue Level equal to or greater than ten percent (10%) shall 1092 be implemented as required in Exhibit Q.
1093 Contractor shall keep all existing permits and approvals necessary for use of the Approved 1094 Facility(ies) in full regulatory compliance or confirm that the owner or operator of such facility 1095 does so. Contractor shall, upon request, provide copies of permits and/or notices of violation of 1096 permits to the City.
1097 C. Contractor-Initiated Change in Facility. Contractor may change its selection of one or more of 1098 the Approved Facility(ies) following City’s written approval, but Contractor shall not be 1099 compensated for any increased transportation and Processing costs. Contractor will bear any 1100 increased transportation and Processing costs associated with a Contractor-initiated change in 1101 the Approved Facility(ies). In such case, Contractor shall guarantee the same net Processing Cost 1102 specified in Exhibit D-2 or shall increase the net Processing Costs (if the amount is a net revenue) 1103 associated with the use of Processing and/or Composting facility(ies) different from the Approved 1104 Facilities. If Contractor elects to use a Processing and/or Composting facility(ies) that is different 1105 than Approved Facility(ies), it shall request written approval from the City sixty (60) calendar days 1106 prior to use of the site and obtain the City’s written approval no later than ten (10) calendar days 1107 prior to use of the site.
1108 D. Inability to Use Approved Facility. If Contractor is unable to use an Approved Facility due to an 1109 emergency or sudden unforeseen closure of the Approved Facility, Contractor may use an 1110 alternative Processing or Composting facility provided that the Contractor provides verbal and 1111 written notice to the City and receives written approval from the City at least twenty-four (24) 1112 hours prior to the use of an alternative Processing or Composting facility. The Contractor’s written 1113 notice shall include a description of the reasons the Approved Facility is not feasible and the 1114 period of time Contractor proposes to use the alternative facility. Contractor shall not be 1115 compensated for any increased transportation and Processing costs and shall guarantee the net 1116 Processing Cost specified in Exhibit N or shall increase the net Processing Costs (if net revenues) 1117 associated with the use of Processing or Composting facility(ies) different from the Approved 1118 Facility.
1119 E. Transport. The Contractor is responsible for transporting Collected Source Separated Recyclable 1120 Materials, Source Separated Organic Materials, and Source Separated Recyclable C&D to the 1121 Approved Facility(ies) by direct haul. If the Contractor plans to change its transport method, 1122 Contractor shall obtain written approval from the City prior to making the change; pay all costs; 1123 and shall not be reimbursed for any additional costs. The City shall approve the transport method, 1124 and the duration the transport method is expected to remain in use. 1125 F. Marketing. The Contractor shall be responsible for marketing materials it Collects in the City 1126 including: (i) Source Separated Recyclable Materials, (ii) Source Separated Organic Materials, and 1127 (iii) Source Separated Recyclable C&D. Contractor shall be compensated by the end users/market 1128 place for such materials at no less than fair market value. With regard to Organic Materials, 1129 Contractor shall market the resulting Compost Product to agricultural growers or other interested Packet Page 289
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1130 parties. Organic Materials shall be used for Compost or mulch. No Source Separated Recyclable 1131 Materials, Source Separated Organic Materials, and Source Separated Recyclable C&D Collected 1132 shall be deposited for disposal or used as Alternative Daily Cover or Alternative Intermediate 1133 Cover with the exception of Residue delivered to the Approved Transfer Facility. 1134 Upon request, Contractor shall provide proof to the City that all Source Separated Recyclable 1135 Materials, Source Separated Organic Materials generated at Residential Premises, and Source 1136 Separated Recyclable C&D (less Residue) Collected by Contractor are Recycled or reused in such 1137 a manner that materials shall be considered as Diverted in accordance with the State regulations 1138 established by the AB 939 and AB 341. All Residual material from the Processing and Composting 1139 activities that is not marketed for use shall be accounted for as Disposal Tonnage at the Approved 1140 Transfer Facility. No Source Separated Recyclable Materials, Source Separated Organic Materials, 1141 or C&D shall be transported to a domestic or foreign location if Solid Waste disposal of such 1142 material is its intended use.
1143 Upon request, Contractor shall provide a summary of its marketing plan and end markets for 1144 Source Separated Recyclable Materials, Source Separated Organic Materials, and Source Separate 1145 Recyclable C&D and submit it to the City for review and approval. Contractor shall provide City 1146 with a list of broker/buyers it has used during the preceding twelve (12) months, if requested by 1147 City. If Contractor becomes aware that a broker or buyer has illegally handled or disposed of 1148 material generated by the City or elsewhere, Contractor shall immediately inform the City and 1149 terminate its contract or working relationship with such party. 1150 G. Allocation Method. Contractor shall develop a method of allocating Source Separated Recyclable 1151 Materials, Organic Materials, and Source Separated Recyclable C&D Diverted by material type and 1152 Processing Residue to Contractor and the City. The allocation method may be the same as that 1153 used to report Solid Waste disposal to the State as appropriate, and the allocation method and 1154 results shall be certified by an authorized personnel or officer of that Approved Facility owner or 1155 operator. Contractor shall Collect materials generated in the City in Collection Vehicles separately 1156 from other materials generated outside the City and shall weigh each vehicle so that the Tonnage 1157 of materials Collected in the City can be documented on a per-load basis with supporting 1158 documentation (such as a certified weight ticket or tag). 1159 Periodically, the Contractor shall review its marketing records to calculate the volume of Source 1160 Separated Recyclable Materials received at the Approved Recyclable Materials Processing Facility 1161 and marketed to determine the percentage of various Source Separated Recyclable Materials 1162 (e.g., glass, newspaper, cardboard, PET, HDPE, aluminum, etc.) Collected. The percentages 1163 determined from the review of marketing records shall be used to allocate the total Tonnage of 1164 Source Separated Recyclable Materials Collected in the City into various categories of Recyclable 1165 Materials. This same review of marketing records and allocation of Tonnage by material type shall 1166 be performed for Source Separated Organic Materials and Source Separated Recyclable C&D. 1167 H. Residue. In accordance with the procedures set forth in Exhibit Q, Contractor shall determine the 1168 average amount of Residue resulting from the Processing of Source Separated Recyclable 1169 Materials, Source Separated Organic Materials, and Source Separated Recyclable C&D at the 1170 Approved Recyclable Materials Processing Facility, Approved Organic Materials Processing 1171 Facility, and the Approved C&D Facility. Exhibit Q describes the Characterization process and 1172 reporting process related to the Residue testing as well as corrective actions and consequences if 1173 the Residue Level is equal to ten percent (10%) or more. It also describes that the City reserves 1174 the right to direct Residue to the Approved Transfer Facility.

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1175 4.8.3 Recyclables Processing
1176 Below is information about the Approved Recyclables Processing Facility selected by the Contractor:
1177 • Facility Name: Newby Island Resource Recovery Park 1178 • Owner: Republic Services
1179 • Operator: Republic Services
1180 • Address: 1601 Dixon Landing Rd, San Jose, CA 95035 1181
1182 4.8.4 Organic Materials Processing
1183 A. Approved Facility. Below is information about the Approved Composting Facility selected by the 1184 Contractor for Processing of Source Separated Organic Materials generated at Residential 1185 Premises:
1186 • Facility Name: Newby Island Resource Recovery Park 1187 • Owner: Republic Services
1188 • Operator: Republic Services
1189 • Address: 1601 Dixon Landing Road, San Jose, CA 95035 1190
1191 B. Organic Materials Processing Standards. The following Processing standards shall be met by the 1192 Approved Composting Facility:
1193 1. Pre-processing activities shall include, at a minimum, the inspection for and removal of 1194 Hazardous Waste and removal of plastic bags which Commercial Customers used to store 1195 Organic Materials.
1196 2. Composting shall be accomplished by the use of recognized Composting methods, which 1197 have been demonstrated to be able to consistently produce stable, mature Compost 1198 Product that is suitable for general purpose use, similar to the U.S. Composting Council's 1199 Class 1 rating.
1200 3. Post-composting processing activities shall include screening to remove plastics and other 1201 contaminants from the Compost Product.
1202 4. The Organic Materials Processing and Composting activities shall use commercially 1203 reasonable efforts to achieve and maintain a Residue Level less than ten percent (10%) 1204 where the Residue Level shall be determined in accordance with Exhibit Q. If Contractor 1205 is unable to maintain this Residue Level, Contractor will follow the procedures in Exhibit 1206 Q.
1207 5. All Organic Materials shall be Processed and marketed for use as Compost, mulch, or soil 1208 amendment and none shall be disposed, used as Alternative Daily Cover or Alternative 1209 Intermediate Cover, or used for Beneficial Reuse purposes. 1210 C. Product Use by City.
1211 1. Contractor shall offer Compost Products to the City at a price that is limited to the cost Packet Page 291
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1212 incurred by the Contractor to purchase and transport of such material to the City. 1213 2. Contractor shall provide up to 400 tons of landscaping-grade compost to the City annually 1214 to assist City with its annual SB 1383 recovered organic waste product procurement 1215 requirements. City shall be responsible for arranging for the pickup of the compost at 1216 601 Dixon Landing Rd. Milpitas, CA and shall inform Contractor six months in advance of 1217 the quantities to be picked up. If Contractor opens an area of the landfill site for 1218 residential customer pick-up of compost or mulch materials, access to that pick-up area 1219 shall be granted to residents of the City that provide adequate proof of residency, of up 1220 to 10 cubic yards of compost per resident per day. The compost picked up by residents 1221 shall be accounted for as a part of the 400 annual tons of compost described herein. 1222 3. During annual rate-setting, City may request, and Contractor may accept, an increase in 1223 the available compost for pick-up, at the same cost that members of the public pay, with 1224 direct costs for the increase included as a pass-through cost in the rate adjustment. 1225
1226 D. Compost Give-Away. Contractor shall host one (1) Annual Compost Give-Away event per year, at 1227 which each Single-Family Customer in City may pick-up two (2) one (1) cubic foot bags of Compost 1228 at no charge upon presenting proof of residency. At Contractor’s option, a single-use coupon or 1229 other ticket-type method may be implemented, subject to City approval, to prevent residents 1230 from receiving more bags than allotted. The Annual Compost Give-Away shall be held at 1231 Contractor’s property at 42600 Boyce Road in Fremont, CA or at a site selected by City. 1232
1233
1234 4.8.5 C&D Processing
1235 A. Approved Facility. Below is information about the Approved C&D Processing Facility selected by 1236 the Contractor for Processing of Source Separated Recyclable C&D:
1237 • Facility Name: Newby Island Resource Recovery Park 1238 • Owner: Republic Services
1239 • Operator: Republic Services
1240 • Address: 1601 Dixon Landing Road, San Jose, CA 95035 1241 •
1242 B. C&D Materials Processing Standards. Contractor shall deliver Source Separated Recyclable C&D 1243 to the Approved C&D Processing Facility for sorting and Diversion and shall provide all services 1244 necessary to support Customer compliance with all CalGreen Diversion requirements and all 1245 requirements of Applicable Laws, including but not limited to those in SB 1383, CalRecycle 1246 requirements for C&D Diversion, requirements of the Newark Municipal Code and all reporting 1247 and record-keeping requirements in said Applicable Laws. Such services shall include, but not be 1248 limited to:
1249 1. Informing all Customers requesting temporary Roll Off Boxes of the requirements of 1250 CalGreen including the Diversion percentage required; 1251 2. Preparation of a Diversion plan for the job site and discussion with the job site 1252 superintendent or owner regarding same;
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1253 3. Upon request of Customer, providing comprehensive training on the job site to all 1254 construction personnel about how to implement the Diversion plan for the job site, 1255 including explaining what material(s) are to be placed in each of the Roll Off Box for source 1256 separated Recyclable Materials (e.g. metal, glass, cardboard, sheetrock, concrete, 1257 asphalt), what materials are to be placed in the Organic Materials Roll Off Boxes, Yard 1258 Waste and wood, what materials are to be placed in the mixed C&D Roll Off Boxes, and 1259 what materials are to be placed in the Solid Waste Roll Off Boxes; 1260 4. Providing Roll-Off Boxes, as needed for storage and transport of Source-Separated 1261 Construction and Demolition Debris, Organic Materials and mixed Construction and 1262 Demolition Debris, as well as appropriate size Roll Off Boxes for Solid Waste; 1263 5. Providing Collection service for all Roll Off Boxes on a timely basis:
1264 6. Delivering all Recyclable Materials, any Organic Materials, and all mixed C&D materials to 1265 the appropriate Processing Facility for Diversion and delivering all Solid Waste to a 1266 Disposal site;
1267 7. Tracking and maintaining records of all tonnages of each type of material delivered to said 1268 Processing Facilities and of the tonnage of Solid Waste delivered for Disposal; 1269 8. Working and coordinating with Customer’s job site superintendent to ensure a smooth 1270 and effective Diversion program in compliance with all Applicable Laws; and 1271 9. Making modifications to the Diversion plan, services or other aspects of the C&D 1272 Diversion as directed by the City.
1273 Contractor shall inform Customers utilizing Containers, Bins and and/or Roll Off Boxes that 1274 Discarded Materials being Generated must be Diverted pursuant to the requirements of all 1275 Applicable Laws. Contractor shall develop, produce, and distribute to such Customers, at 1276 Contractor’s sole expense, a color brochure highlighting the requirements for Diversion of C&D 1277 Debris, describing methods of Diversion that will fulfill such requirements and describing the 1278 services. Contractor shall provide as enumerated in this Section. Contractor shall submit the 1279 brochure to City for final approval before printing and distribution to Customers. 1280 C. Third-Party Verification Required. “Third-Party Verification” refers to the process by which a 1281 Third-Party Verifier approved by the City reviews and verifies the facility recovery rates and evaluates the 1282 Approved Facility fitness relative to the minimum Construction and Demolition Debris Recovery 1283 requirements set forth by the City. The Approved Facility must engage the services of a Qualified Third1284 Party Verifier (a verifier that has been approved by the City) to conduct Third-Party Verification of 1285 Recovery rates for Recoverable Materials on an annual basis, or on a scheduled mutually agreed upon by 1286 the City and the Contractor, beginning July 1, 2023, with a report of findings to be delivered by December 1287 1, 2023 and annually thereafter. The Approved Facility is responsible for the cost of their own Third-Party 1288 Verification and obligated to provide access to records sufficient, according to the City and the Third-Party 1289 Verifier’s determination, to make a finding as to the facility recovery rates. 1290 4.8.6 Insurance, Indemnifications and Performance Standards 1291 If Contractor uses an Affiliate Subcontractor to provide transfer, Processing, and/or Composting services, 1292 or enters into any contract, agreement or understanding with a party for services related to Source 1293 Separated Recyclable Materials Processing and marketing, Source Separated Organic Materials Processing 1294 and marketing, Composting, C&D Processing and marketing, and marketing, or transfer Station services, Packet Page 293
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1295 Contractor shall provide that terms and conditions (such as insurance requirements, indemnifications, 1296 and Processing, Composting, marketing performance, and Residue guarantees) of any contract, 1297 agreement, or other understanding Contractor has with such party can be enforced by the City as an 1298 additional insured or third party beneficiary thereof in the same manner provided in Article 9 and in a 1299 manner reasonably satisfactory to City.
1300 If Contractor, an Affiliate, or Subcontractor owns or operates the Approved Recyclable Materials 1301 Processing Facility, Approved Composting Facility, or Approved C&D Processing Facility, Contractor shall 1302 include City as an additional insured on liability policies and defend and indemnify City in a manner 1303 satisfactory to City, and provide that any materials recovery and marketing performance standards or 1304 guarantees made to any other facility customers are made to City as well, including obligations such as 1305 recovered product and Compost Product quality guarantees and limits on the Residue Level. 1306 Contractor shall demonstrate compliance with the requirements of this paragraph on or before the 1307 Commencement Date of this Agreement.
1308 4.8.7 Compliance with Applicable Law
1309 Contractor (or its Affiliate or Subcontractor(s)) warrants throughout the Term that the Approved Facilities 1310 (excluding the Approved Transfer Facility) selected by Contractor are respectively authorized and 1311 permitted to accept Recyclable Materials, Organic Materials, and C&D in accordance with Applicable Law 1312 and is in full compliance with Applicable Law. Contractor shall: (1) verify compliance for the Approved 1313 Facilities (that neither it nor its Affiliates own) by contacting the local enforcement agency and other 1314 regulatory agencies having jurisdiction over the Approved Facilities at least quarterly; and (2) upon City 1315 direction, shall promptly provide City with copies of the Approved Facilities’ permits or notice of violations 1316 to City.
1317 4.8.8 Compliance with Facility Rules
1318 Contractor (or its Subcontractor(s)) shall observe and comply with all regulations in effect at the Approved 1319 Facilities and cooperate with the operators thereof with respect to delivery of Solid Waste, Recyclable 1320 Materials, Organic Materials, and C&D including directions to unload Collection vehicles in designated 1321 areas, accommodating operations and maintenance activities, and complying with Hazardous Waste 1322 exclusion programs.
1323
1324 4.8.9 Transportation and Processing Costs
1325 All costs associated with transporting to and Processing Source Separated Recyclable Materials, Source 1326 Separated Organic Materials, and C&D at the Approved Facilities shall be paid by Contractor. 1327 4.8.10 Weighing and Record Requirements
1328 Contractor shall ensure that all Solid Waste, Source Separated Recyclable Materials, Source Separated 1329 Organic Materials, and C&D are weighed upon delivery to the Approved Facilities, and all weight and 1330 related delivery information (including date, time, material type, route and truck number) (“Delivery 1331 Data”) is recorded. The Delivery Data shall allow for separate tracking by material type, customer type, Packet Page 294
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1332 container type, day, month, etc. Contractor shall provide City the name of any driver of any identified 1333 delivery promptly upon request by City. If vehicle receiving and unloading operations are recorded on 1334 video cameras at any Approved Facility, Contractor shall make, or shall use its best efforts to arrange with 1335 the facility operator if other than Contractor to make, those videos available for City review during the 1336 facility’s operating hours, upon request of the City. 1337 4.8.11 Disposal of Recyclable, Organic Materials, C&D Prohibited 1338 With the exception of Processing and Composting Residue which shall be less than ten percent (10%) for 1339 Source Separated Organic Materials, less than ten percent (10%) for Source Separated Recyclable 1340 Materials, and less than ten percent (10%) for Source Separated Recyclable C&D, Recyclable, Organic 1341 Materials, and C&D may not be disposed of in lieu of Recycling or Composting the material, without the 1342 expressed written approval of the City. If for reasons beyond its reasonable control, Contractor (or its 1343 Subcontractor(s)) believes that it cannot Divert the Source Separated Recyclable Materials, Source 1344 Separated Organic Materials generated at Residential Premises, or Source Separate Recyclable C&D from 1345 disposal, then it shall prepare a written request for approval to dispose of such material. Such request 1346 shall contain the basis for Contractor’s belief (including, but not limited to, supporting documentation), 1347 describe the Contractor's efforts to arrange for the Diversion from disposal of such material, the period 1348 required for such disposal, the incremental net cost increases or net cost savings (giving account to the 1349 value from the sale of the Recyclable Material, Organic Materials, or Recyclable C&D) resulting from such 1350 disposal, and any additional information supporting the Contractor's request. In addition, the request 1351 shall describe the Contractor’s proposed interim plans for implementation while the City is evaluating its 1352 request. If the City objects to the interim plans, the City shall provide written notice to the Contractor 1353 and request an alternative arrangement. The City shall consider the Contractor’s request and inform 1354 Contractor in writing of its decision within sixty (60) calendar days. If the City approves such request, any 1355 difference in the net cost of such disposal compared to Diversion shall be adjusted in accordance with 1356 Section 8.4. Depending on the nature of the Contractor’s request, the City may extend the sixty (60) day 1357 calendar period, at its own discretion, to provide more time for evaluation of the request and negotiation 1358 of an acceptable arrangement with the Contractor.
1359 4.8.12 Alternative Facility Designation by City
1360 The City reserves the right to direct Contractor to transport and deliver: (i) all Organic Materials generated 1361 at Residential Premises and Collected pursuant to this Agreement to a Composting Facility other than the 1362 Composting Facility selected by the Contractor, or (ii) all Source Separated Recyclable Materials or Source 1363 Separated Recyclable C&D Collected pursuant to this Agreement to a Processing Facility other than the 1364 Processing Facility selected by the Contractor. If the City exercises its right under this provision for any 1365 reason other than the Contractor is not achieving less than ten percent (10%) Residue Levels, and specifies 1366 use of a Composting or Processing Facility that is different from the Contractor-selected Approved 1367 Facilities, the City shall provide written notice to Contractor one (1) year before the date the Contractor 1368 shall commence use of the City-designated site, and shall in no case require use of the City-selected 1369 Processing or Composting Facility prior to June 1, 2025. Furthermore, if City exercises its right under this 1370 Section to designate an alternate facility for any reason, the Contractor’s Compensation and Maximum 1371 Rates will be adjusted for increases or decreases in transportation, Processing, and/or Composting costs 1372 and/or incremental profit directly related to cost increases or decreases, if any, in accordance with 1373 Sections 3.5 and 8.4.

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1374 4.8.13 Option to Direct Contractor to Transport Equivalent Residue to Approved 1375 Transfer Facility
1376 Upon execution of this Agreement, the City reserves the option to direct Contractor to haul Equivalent 1377 Residue from any of the Processing of Source Separated Recyclable Materials, Source Separated Organic 1378 Materials, and/or Source Separated Recyclable C&D, or any subset thereof such as materials generated 1379 by Multi-Family, Residential, or Commercial Customers, to the Approved Transfer Facility as Solid Waste. 1380 City may exercise this option for Contractor to transport Equivalent Residue to the Approved Transfer 1381 Facility at any time during the Term of this Agreement, provided Contractor receives thirty (30) days 1382 written notice. City also reserves the right to rescind this option at any time, provided Contractor receives 1383 seven (7) days written notice. If at any time City exercises this option, but then subsequently rescinds said 1384 option, this rescission shall not be construed as a waiver of any future right by the City to re-exercise said 1385 option and the costs described above shall be reinstated. 1386
1387 This option is more particularly described in Section 4 of Exhibit Q, attached hereto and incorporated 1388 herein by reference.
1389 4.9 PUBLIC EDUCATION AND OUTREACH
1390 The public education and outreach activities included in the scope of services provided by Contractor 1391 under this Agreement are described in Exhibit B. Contractor shall allow the City Contract Manager a 1392 reasonable opportunity to review, request modifications to, and approve all public education materials 1393 including, but not limited to: print, radio, television, or internet media before publication, distribution, 1394 and/or release.
1395 Contractor’s public education and outreach strategy shall focus on improving Customer understanding of 1396 the benefits of and opportunities for source reduction, reuse, Recycling, and Composting. In general, 1397 Contractor-provided public education and outreach should: (i) inform Customers about the services that 1398 are provided under this Agreement with specific focus on describing the methods and benefits of source 1399 reduction, reuse, Recycling, and Composting; (ii) instruct Customers on the proper method for placing 1400 materials in Containers for Collection and setting Containers out for Collection with specific focus on 1401 minimizing contamination of Recyclable and Organic Materials; and, (iii) clearly define the Excluded Waste 1402 and educate Customers about the hazards of such materials and their opportunities for proper handling. 1403 Contractor, and its Subcontractors, shall cooperate and coordinate with the City Contract Manager and 1404 the StopWaste staff on public education activities to minimize duplicative, inconsistent, or inappropriately 1405 timed education campaigns. Contractor is aware that StopWaste conducts regional public education and 1406 outreach for schools, self-hauled waste, home composting, Food Scraps programs, etc. 1407 City shall have the right to review and approve when the Contractor includes the City and/or StopWaste 1408 name, other form of identification, and contact information on public education materials. City may 1409 request inclusion of City information on public education materials (subject to City review and approval) 1410 and such request shall not be unreasonably withheld. 1411 As part of the Contractor’s third quarterly report (required by Section 6.2 of this Agreement) for the Rate 1412 Period, Contractor shall submit a plan outlining its public education efforts for the coming Rate Period. 1413 The plan shall list each public education piece (e.g., newsletters, bill inserts, flyers, newspaper 1414 advertisements, etc.) to be prepared, the purpose of the piece, the key subject(s) to be covered, and the 1415 anticipated date of issuance. In addition, the plan shall list all events the Contractor plans to attend and 1416 the public education it intends to provide at such event (e.g., exhibit at Newark Days, etc.). The City shall Packet Page 296
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1417 review and approve the public education plan.
1418 Contractor shall dedicate a budget of no less than $162,000 (one hundred and sixty-two thousand) dollars 1419 in Year 1, and $90,000 (ninety thousand) dollars for each year thereafter to conduct public education 1420 related activities.
1421 4.10 MULTI-FAMILY/COMMERCIAL TECHNICAL ASSISTANCE
1422 Contractor shall provide comprehensive recycling technical assistance to Multi-Family and Commercial 1423 Customers with the primary purpose of helping Customers increase Recycling and Organics Collection 1424 services and reducing Solid Waste Collection service. The technical assistance services shall conform with 1425 the following performance expectations per quarter:

Task Minimum Number of related actions taken
Phone Calls 20
In-Person Site Visits (i.e.
customer contact)
40 1426
1427 Site visits shall include on-site assessments of the Multi-Family and Commercial premises to improve 1428 Recycling and Organics Collection program participation. During the site visits, Contractor will be required 1429 to provide and/or restock posters, “how to” guides, personal recycling baskets/bags for Multi-Family 1430 tenants, and any other appropriate materials and provide new signage for the Recycling and Organics 1431 Containers if necessary. This program shall also involve preparation and presentation of reports to the 1432 City on the Contractor’s efforts and results of the technical assistance efforts. 1433
1434 4.10.1 Informational Flyers
1435 Contractor shall develop detailed information flyers specifically targeted at Multi-Family complex 1436 managers, and following business types: a) retail; b) business office; c) restaurant and bar; and d) 1437 manufacturing. Each flyer shall provide a brief synopsis of available programs and corresponding contact 1438 information. This flyer will include information on regular service features: Solid Waste, Source Separated 1439 Recyclable Material, Source Separated Organic Materials Collection services, but will also include 1440 information on special services such as holiday tree and Bulky Item Collection services, State and County 1441 mandatory Recycling requirements; and proper handling of Hazardous Waste, E-Waste and universal 1442 waste. Contractor shall also distribute or, subject to Multi-Family and Commercial Customer Occupant 1443 approval, post “Collection Point Posters”, for the purpose of providing education and assistance at the 1444 point of materials discard.
1445 4.10.2 Multi-Family Tenant Collection Tote Bags
1446 Within three (3) months of the Commencement Date, Contractor shall distribute to Multi-Family 1447 Customers tote bags (one tote bag per tenant unit) made of woven polypropylene, which shall be rigid 1448 enough to stand on their own or hang on a wall or door hook for the purpose of promoting tenant in-unit 1449 Source Separation of Recyclable Materials. Contractor shall instruct residents on how to use the bags for 1450 interior storage of Source Separated Recyclable Materials and transport to Collection points within their 1451 complex. During the Term of the Agreement, Contractor shall provide tote bags to Multi-Family property Packet Page 297
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1452 managers as needed to replace lost, damage, or stolen tote bags. 1453 4.10.3 Recycling Workshops
1454 Contractor’s Recycling Coordinator shall assist in the establishment and maintenance of Multi-Family and 1455 Commercial Source Separated Recyclable Materials programs and will conduct Recycling technical 1456 assistance and workshops at Customers’ premises. In addition to following up with Multi-Family managers 1457 to address their questions, concerns, and any real or perceived obstacles to full participation in 1458 Contractor’s Multi-Family Recycling program, the Recycling Coordinator will also offer workshops at the 1459 Multi-Family premises for interested residents to instruct them on how to use the Recycling program, 1460 relay the benefits of Recycling, and answer questions. 1461 4.11 BILLING
1462 A. General. Contractor shall bill all Customers at Rates not to exceed Maximum Rates approved by 1463 City, and Contractor shall be solely responsible for collecting billings. Maximum Rates shall be set 1464 by the City in accordance with Article 8. Billing shall be performed on the basis of services 1465 rendered and this Agreement shall create no obligation on the part of any Person on the sole basis 1466 of the ownership of property. Contractor shall bill Single-Family Customers quarterly, in advance 1467 of services rendered. Contractor shall bill Multi-Family and Commercial Customers monthly, in 1468 advance of services rendered. Contractor shall bill Drop-Box and Compactor Customers monthly, 1469 in arrears of services rendered. Contractor shall separately identify the amount of the Alameda 1470 County Waste Management Authority Benchmark Service Information Fee on the bills (as 1471 discussed in Section 4.15).
1472 B. Change to Billing in Advance. Contractor shall send a letter in early May, 2013 to all Commercial 1473 Customers who were billed in arrears by the previous contractor, notifying the Customer of a 1474 change in billing practices to bill in advance. During the five (5) months following the 1475 Commencement Date, Contractor shall relax billing enforcement policies for all Customers 1476 impacted by the billing change. Upon Customer request, Contractor shall allow impacted 1477 Customers to enter into a three to four (3 to 4) month payment plan to “catch-up” on the 1478 additional invoice (since Customers will receive two (2) bills at approximately same time, one from 1479 previous contractor for the arrears billing and one from Contractor for the advanced billing). No 1480 late service or interruption fees shall be charged against any Customer who has applied for and 1481 complied with such a payment plan.
1482 C. Payment Methods. Contractor’s website shall provide Customers with the ability to pay their bills 1483 through an electronic check or credit card and include the ability for Customer billings to be 1484 automatically charged on a recurring basis. Contractor shall prepare, mail, and collect bills from 1485 Customers who decline to use such internet-based billing system. Contractor shall make 1486 arrangements to allow Customers to pay bills by cash, check, electronic check, money order, and 1487 credit card.
1488 D. Billing Adjustment for Change in Service Level. If Customer requests a change in Service Level 1489 that results in a lower Rate, Contractor shall adjust Customer’s billing amount within seven (7) 1490 days of the date Customer requested the change regardless of whether or not Contractor delivers 1491 the appropriate Containers or modifies the Service Level within that timeframe. However, If 1492 Customer requests change in Service Level that results in a higher Rate, Contractor shall adjust 1493 the Customer’s billing amount within seven (7) days of the effective date of the actual change in Packet Page 298
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1494 Service Level.
1495 E. Billing Records. Contractor shall maintain copies of all billings and receipts, each in chronological 1496 order, for the Term of this Agreement, for inspection and verification by the City Contract 1497 Manager at any reasonable time but in no case more than thirty (30) calendar days after receiving 1498 a request to do so.
1499 F. Collection of Past Due Accounts. Contractor shall be responsible for collection of payment from 1500 Customers with past due accounts (“bad debt”). Contractor shall make reasonable efforts to 1501 obtain payment from delinquent accounts through issuance of late payment notices, making at 1502 least 3 telephone requests for payments to customer and property owner (if the owner is a 1503 different Person or entity than the customer), offering a customer payment plan, and suspension 1504 of service in accordance with the following.
1505 If a Customer’s payment becomes more than one hundred twenty (120) days past due, Contractor 1506 may request approval from the City, which will not be unreasonably denied, to suspend service 1507 to that account until payment is received, providing written evidence for each account that the 1508 required collection steps have been taken. If the City approves such request, the Contractor shall 1509 provide the Customer and property owner (if the owner is different from the customer) written 1510 notice of service suspension which includes a description of potential penalties from the City for 1511 nuisance, should it occur. All notifications and correspondence issued by Contractor shall be 1512 directed to the Customer and the owner of the property if the owner is a different Person or entity 1513 than the Customer.
1514 At its option, Contractor may charge Customers a late payment fee for accounts that are over 1515 sixty (60) days past due provided that Contractor provides each Customer thirty (30) days written 1516 notice of its intent to assess the late fee. The maximum late fee is subject to the City approval 1517 and reflected in Exhibit L.
1518 G. Life-Line and Senior Rates. Annually, Contractor shall verify Customers’ eligibility for life-line 1519 Rates by reviewing subscribers’ documentation that they receive assistance under PG&E's 1520 California Alternate Rates for Energy (“CARE”) ratepayer assistance program. Every two (2) years, 1521 Contractor shall verify Customers’ eligibility for Senior Rates by reviewing subscribers’ driver’s 1522 license or birth certificate. Contractor shall also assist the City with administration of any other 1523 special Rate programs such as zero waste Generator or low waste Generator Rate programs. 1524 4.12 CUSTOMER SERVICE PROGRAM
1525 4.12.1 Program Requirements
1526 A. Availability of Representatives. Contractor shall retain one (1) full-time Customer service 1527 representatives, additional staff for reporting, and one (1) Municipal Sales Manager in its Fremont 1528 office at 42600 Boyce Road to provide increased staffing to handle inquiries and complaints from 1529 City Customers. In addition, the contractor shall retain one (1) full-time dedicated Compliance 1530 Monitor. A representative of the Contractor who is knowledgeable of the service area, services, 1531 and Rates shall be available from 8:00 a.m. to 5:00 p.m. Monday through Friday to communicate 1532 with the public in person and by telephone. Contractor shall maintain a local or toll-free telephone 1533 number which it shall publicize. Contractor shall also maintain an after-hours telephone number 1534 allowing twenty-four (24) hour per day access to Contractor management by City Contract 1535 Manager in the event of an emergency involving Contractor’s equipment or services including, Packet Page 299
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1536 but not necessarily limited to, fires, blocked access, or property damage. 1537 B. Telephone. Contractor shall maintain a telephone system sufficient to meet performance 1538 standards listed in this Section 4.12 and Exhibit E in operation from 8:00 a.m. to 5:00 p.m. and 1539 shall have sufficient equipment in place and staff available to handle the volume of calls 1540 experienced on the busiest days and such telephone equipment shall be capable of recording the 1541 responsiveness to calls. Recording of Contractor’s responsiveness to calls shall include, at a 1542 minimum, all items included in the “Service Quality and Reliability” and “Customer Service” 1543 performance standards listed in Exhibit E. An answering machine or voicemail service shall record 1544 Customer calls and voice messages between 5:00 p.m. and 8:00 a.m. Starting at 8:00 a.m. and 1545 continuing throughout the day until 5:00 p.m., Contractor shall check voice messages and respond 1546 the same day if the message is received before noon and respond no later than noon of the 1547 following day for messages received after noon. If call wait time is expected to exceed two 1548 minutes, customer shall upon calling have the option to receive a “call-back” rather than waiting 1549 on hold. The call-back will occur within 2 hours of the initial customer call during regular business 1550 hours (8:00 a.m. to 5:00 p.m.).
1551 C. Website. Contractor shall develop and maintain a website (or webpage) that is specifically 1552 dedicated to the City to provide customers with detailed service information and Rates. The 1553 website or webpage shall be accessible by the public. In addition, Contractor’s website shall 1554 include all public education and outreach materials described in Exhibit B and provide the public 1555 the ability to e-mail Contractor questions, service requests, or complaints. Contractor shall 1556 update the website regularly so that information provided is current. 1557 D. Training. All Persons involved in providing Customer service and/or billing support to Customers 1558 shall be well educated on and knowledgeable of all aspects of the City’s Collection services, Rates, 1559 and other relevant information.
1560 4.12.2 Service Requests, Compliments, Complaints
1561 Contractor shall be responsible for the prompt and courteous attention to, and prompt and reasonable 1562 resolution of, all Customer service requests and complaints. Contractor shall record in a separate log, 1563 approved as to form by City Contract Manager, all complaints, noting the name and address of 1564 complainant, date and time of complaint, nature of complaint, and nature and date of resolution. The 1565 Contractor shall retain this complaint log for the Term. Upon request by the City Contract Manager, 1566 Contractor shall compile and submit a summary statistical table of the complaint log. 1567 Contractor shall respond to all complaints received within twenty-four (24) hours, weekends and Holidays 1568 excluded. In particular, if a complaint involves a failure to Collect Solid Waste, Source Separated 1569 Recyclable Materials or Source Separated Organic Materials from a Premises in the City, Contractor shall 1570 Collect the material in question within twenty-four (24) hours of receipt of the Complaint, provided that 1571 Customer or Generator has properly placed materials for Collection. 1572 4.13 CITY WEB-BASED ACCESS TO INFORMATION
1573 Contractor shall establish a web-based system that enables the City to twenty-four (24) hour access to 1574 Contractor’s customer service and billing system to view Customer records including service information, 1575 Rate, call history, etc. Contractor shall comply with this requirement by June 1, 2013. Example web-based 1576 reports that the City will be able to access are provided in Exhibit P.

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1577 4.14 AB 939, AB 341, AB 1826, SB 1383, AND COUNTY ORGANICS REDUCTION & 1578 RECYCLING ORDINANCE COMPLIANCE
1579 Contractor shall perform all education, outreach, monitoring, and reporting for all Commercial and Multi1580 Family properties as required by AB 939, AB 341, AB 1826, SB 1383, and the Alameda County Waste 1581 Management Authority Organics Reduction & Recycling Ordinance (ORRO)(adopted July 28, 2021). These 1582 activities shall include educating Multi-Family and Commercial Customers regarding the mandatory 1583 Recycling and Organics Recycling requirements of AB 341, SB 1383 and the County ordinance; notifying 1584 non-compliant Multi-Family and Commercial Customers at least semi-annually. Contractor shall develop 1585 and implement a Recycling plan that supports and educates Multi-Family and Commercial Customers on 1586 both the State and County requirements. The Recycling plan will include updating Contractor’s website 1587 and print materials with information pertaining to both mandatory requirements. On a monthly basis, the 1588 Contractor shall provide all necessary reporting data requested by the City relating to the City's 1589 compliance requirements pertaining to AB 939, AB 341, and SB 1383 as it affects the County's Integrated 1590 Waste Management Plan and the City’s SRRE and pertaining to the Alameda County Waste Management 1591 Authority Organics Reduction & Recycling Ordinance (ORRO) (adopted July 29, 2021). 1592 The Contractor shall cooperate in activities requested by the City to measure diversion of Solid Waste 1593 from landfills including, but not limited to, providing a location for conducting waste sorting at the 1594 Contractor's facility, and re-routing trucks on a temporary basis to facilitate composition analysis. Such 1595 reports shall include, but not necessarily be limited to, throughput, recovery rates per material type, 1596 Residue Level by material type, costs, Recyclable Material commodity values, and final disposition of 1597 Source Separated Recyclable Materials and Source Separated Organic Materials. The Contractor shall also 1598 supply any other information reasonably requested by the City Contract Manager to meet State, Federal, 1599 or County regulatory requirements as those requirements may be amended from time to time. 1600 4.15 ACWMA BENCHMARK SERVICE INFORMATION FEE
1601 Contractor shall comply with requirements of the Alameda County Waste Management Authority’s June 1602 27, 2012 Resolution regarding implementation of a Benchmark Service Information Fee effective July 1, 1603 2013. Requirements include, but are not limited to, charging Customers the Benchmark Service 1604 Information Fee, collecting the fees from Customers, remitting fees to the County, and reporting. 1605 Contractor shall provide the City with copies of all reports it submits to the Authority concurrent with 1606 submittal to the Authority. The Benchmark Service Information Fee is not included in the Contractor’s 1607 cost proposal (Exhibit N) or in the Maximum Rates (Exhibit L) approved by the City. Contractor shall 1608 identify the Benchmark Service Information Fee separately on Customer bills. 1609 4.16 COMMUNITY SUPPORT
1610 Contractor shall implement its “True Blue Looking Out for You” neighborhood watch program. Contractor 1611 shall train drivers to assist law enforcement officials in identifying and reporting suspicious behavior 1612 through Contractor’s dispatch department. Contractor shall also train drivers to identify situations where 1613 they can provide assistance to the public during extreme weather events. 1614
1615 Contractor shall donate a half percent (0.5%) of Gross Receipts collected from provision of all C&D 1616 Collection services to Newark Unified School District, Newark Education Foundation, or other organization 1617 mutually agreed to by the Parties for the purpose of providing grant funds to support the Newark Unified 1618 School District or to provide scholarships to students. Contractor shall remit the funds to the selected Packet Page 301
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1619 organization two (2) times annually on or before January 15 for the most-recently completed six (6) 1620 months and on or before July 15 for the most-recently completed six (6) months, and shall report the 1621 amount remitted as stated in Exhibit C.
1622
1623 Contractor shall organize and publicize an annual food and toy drive to benefit a Newark-based charity. 1624 Contractor shall instruct Single-Family Customers to set non-perishable food and new, unwrapped toys at 1625 the Curbside for two (2) weeks during the holiday season (beginning directly after Thanksgiving) and 1626 Contractor shall Collect the items and deliver them to a Newark-based charity. 1627 4.17 ROUTE REVIEWS AND COMPLIANCE REVIEWS
1628
1629 4.17.1 Compliance Reviews.
1630 A. General Requirement. At least once annually, beginning in 2023, Contractor shall review the 1631 records of its Commercial and Multi-Family customers in City that are subscribed for at least two 1632 (2) cubic yards per week of combined Solid Waste, Organic Materials and Recyclables service, to 1633 determine whether such customers are subscribed for Organic Materials collection service or 1634 have an applicable waiver. Contractor shall include the results of each Compliance Review in its 1635 next regularly scheduled report to City.
1636 B. Site Visit Requirement. Contractor shall conduct a site visit to each Commercial and Multi-Family 1637 customer in City that is determined to (a) not be enrolled in 3-container collection service, and 1638 (b) not be eligible for a waiver based on the City determination. Contractor shall conduct in1639 person site visits (i.e. direct customer contact) to provide educational material about the law’s 1640 requirements to Commercial and Multi-Family customers, at least one time every 3 years. All 1641 Commercial and Multi-Family customers in the City shall receive a site visit from Contractor to 1642 affirm proper sorting procedures and sizing of containers at least one time every 5 years. 1643
1644 4.17.2 Route Reviews.
1645 A. General Requirement. At least once annually, beginning in 2023, Contractor or its approved 1646 designee shall conduct a Route Review for each Hauler Route. The number of Containers to review 1647 per Hauler Route shall be calculated on the basis of the number of garbage accounts provided 1648 service by a specific Hauler Route for one week, at least 15% of customers in each route. For 1649 example, “Route A” collects garbage from 250 accounts, 4 days per week for a total of 1,000 1650 accounts per week; include a minimum of 25 accounts for Route Review of “Route A”. For each 1651 Route Review of a Hauler Route, Contractor shall inspect at least the following minimum number 1652 of Containers, but may inspect more if Contractor deems necessary; and shall inspect all 1653 Containers placed for collection (including Recycling Containers, Organics Containers, and 1654 Garbage Containers). Each inspection shall involve lifting the Container lid and observing the 1655 contents, but shall not require Contractor to disturb the contents or open any bags. Contractor 1656 may select the Containers to be inspected at random, or (if mutually agreed with City) by any 1657 other method not prohibited under the SB 1383 Regulations. For the avoidance of doubt, 1658 Contractor shall not be required to annually inspect every Container on a Hauler Route. 1659 Contractor shall include the results of each Route Review in its next regularly scheduled report to Packet Page 302
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1660 City.
1661 B. Notice of Contamination. For purposes of determining if Recyclable Materials or Organic Waste 1662 are deemed to be contaminated, if, by visual or digital inspection, Recyclable Materials are 1663 commingled with ten percent (10%) by weight or volume of Prohibited Container Contaminants, 1664 or if, by visual inspection, Organic Waste is commingled with three percent (3%) by volume of 1665 Prohibited Container Contaminants, then Recyclable Materials and/or Organic Waste will be 1666 deemed to be contaminated, Contractor shall notify the customer of the violation in writing. The 1667 written notice shall include information regarding the requirement to properly separate materials 1668 into the appropriate Containers. The notice may be left on the customer’s Container, gate, or door 1669 at the time the violation is discovered, and/or be mailed, e-mailed, electronically messaged or 1670 delivered personally to the customer within 30 days. Contractor may dispose of the contents of 1671 any Container found to contain Prohibited Container Contaminants and may charge a 1672 contamination fee not to exceed the fee approved by the City. The notice shall be provided in 1673 English and Spanish.
1674 ARTICLE 5. STANDARD OF PERFORMANCE
1675 5.1 GENERAL
1676 Contractor shall at all times comply with Applicable Laws and provide services in a manner that is safe to 1677 the public and the Contractor’s employees. Except to the extent that a higher performance standard is 1678 specified in this Agreement, Contractor shall perform services in accordance with Solid Waste, Source 1679 Separated Recyclable Materials, Source Separated Organic Materials, and C&D management practices 1680 common to Northern California.
1681 5.2 OPERATING HOURS AND SCHEDULES
1682 A. Hours of Collection. Unless otherwise authorized by the City Contract Manager, Contractor’s days 1683 and hours for Collection operations shall be as follows:
1684 1. Residential Premises. Collection from Residential Premises shall only occur between the 1685 hours of 6:00 a.m. and 6:00 p.m., Monday through Friday. 1686 2. Commercial Premises. Collection from Commercial Premises that are two hundred (200) 1687 feet or lessfrom Residential Premises shall only occur between the hours of 6:00 a.m. and 1688 6:00 p.m., Monday through Friday. Collection from Commercial Premises more than two 1689 hundred (200) feet from Residential Premises shall only occur between the hours of 4:00 1690 a.m. and 6:00 p.m., Monday through Saturday. Contractor is encouraged to schedule 1691 Collection from Commercial Customers in close proximity to any Residential Customers 1692 after 6:00 a.m. by focusing early morning Collection service in Commercial areas away 1693 from Residential neighborhoods. Upon complaints from Residential Customers about 1694 Collection noise, the Contractor shall re-route its Collection vehicles to the extent 1695 practical and shall meet and confer with the City to agree on a proposed solution. 1696 B. Holiday Collection Schedule. Contractor, at its sole discretion, may choose not to provide 1697 Collection services on a Holiday. In such event, Contractor shall provide Collection services on the 1698 day following the Holiday thereby adjusting subsequent work that week; however, Customer 1699 service days shall be returned to the normal schedule within one (1) week of the Holiday. The Packet Page 303
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1700 Contractor shall provide Customers notice of Holiday-related changes in Collection schedules at 1701 least two (2) weeks prior to the change.
1702 5.3 COLLECTION STANDARDS
1703 A. Servicing Containers. Contractor shall pick up and return each Container to the location where 1704 the Occupant properly placed the Container for Collection. Contractor shall place the Containers 1705 upright with lids properly secured.
1706 Contractor, at the request of Customers, shall provide special services including: (i) unlocking 1707 Containers; (ii) accessing Container enclosures with a key; or, (iii) pulling or pushing Containers to 1708 the Collection vehicle and may charge Customers Rates for special services not to exceed City1709 approved Maximum Rates. 1710 B. Litter Abatement. Contractor shall use due care to prevent spills or leaks of material placed for 1711 Collection, Used Motor Oil, fuel, and fluids while providing services under this Agreement. If any 1712 materials are spilled or leaked during Collection and transportation, the Contractor shall clean up 1713 all spills or leaks before leaving the site of the spill. 1714 Contractor shall not transfer loads from one vehicle to another on any public street, unless it is 1715 necessary to do so because of mechanical failure, hot load (combustion of material in the truck), 1716 or accidental damage to a vehicle.
1717 Contractor shall cover all open Drop Boxes at the pickup location before transporting materials to 1718 the Approved Facility.
1719 C. Clean-Up. During the Collection or transportation process, the Contractor shall clean-up litter in 1720 the immediate vicinity of any Container storage area (including the areas where Collection Bins 1721 and Drop Boxes are delivered for Collection) whether or not Contractor has caused the litter. The 1722 Contractor shall discuss instances of repeated spillage not caused by it directly with the Customer 1723 or Generator responsible and will report such instances to City. City will attempt to rectify such 1724 situations with the Customer or Generator if Contractor has already attempted to do so without 1725 success.
1726
1727 D. Noise. All Collection operations shall be conducted as quietly as possible and shall conform to 1728 applicable Federal, State, County and City noise level regulations, including the requirement that 1729 the noise level during the stationary compaction process not exceed seventy-five (75) decibels at 1730 a distance of twenty-five (25) at a height of five (5) feet from the Collection vehicle. The City may 1731 conduct random checks of noise emission levels to ensure such compliance. 1732
1733 E. Routes. Upon City request, Contractor shall provide City with route information and maps of the 1734 Single-Family Collection routes in sufficient detail that allows the City to plan its street sweeping 1735 routes. Route maps shall be provided in Adobe Acrobat PDF format or other format agreed upon 1736 by the City Contract Manager. Contractor shall meet and confer with the City Contractor Manager 1737 to amend the route schedule, and Contractor shall not modify scheduled Collection routes or 1738 scheduled Collection days without prior written notification to and approval of City. Contractor’s 1739 Collection vehicles shall only be driven on residential or private streets at the times necessary to 1740 service the accounts on those streets.
1741
1742 Contractor shall Collect materials generated in the City in Collection Vehicles separately from Packet Page 304
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1743 other materials generated outside the City.
1744 5.4 VEHICLE REQUIREMENTS
1745 Contractor shall provide a fleet of Collection vehicles sufficient in number and capacity to efficiently 1746 perform the work required by the Agreement in strict accordance with its terms. Contractor shall have 1747 available sufficient back-up vehicles for each type of Collection vehicle used to respond to scheduled and 1748 unscheduled maintenance, service requests, complaints, and emergencies. All such vehicles shall have 1749 watertight bodies designed to prevent leakage, spillage, or overflow. All such vehicles shall meet On-Road 1750 Heavy Duty Vehicle emissions requirements for model year 2011, regardless of the actual model year of 1751 Contractor’s vehicles, and generally comply with all Federal, State, and local laws and regulations. On or 1752 before January 1, 2014, Contractor shall provide all new Collection vehicles. Prior to the operation of new 1753 Collection vehicles, Contractor may operate used vehicles. 1754 All Collection vehicles shall operate on renewable natural gas (RNG). Vehicles shall be fueled at the Union 1755 City corporation yard, located at 34650 Seventh Street, Union City, CA; the Contractor’s Newby Island 1756 fueling facility at 1601 Dixon Landing Road, San Jose, CA; or the Contractor’s vehicle maintenance facility 1757 at 42600 Boyce Road, Fremont, CA if a RNG fueling station is installed there. 1758 Vehicles shall be operated in compliance with the California Vehicle Code, and all applicable safety and 1759 local ordinances. Contractor shall not load vehicles in excess of the manufacturer's recommendations or 1760 limitations imposed by State or local weight restrictions on vehicles. Collection vehicles shall present a 1761 clean appearance while providing service under this Agreement. Collection vehicles shall be thoroughly 1762 washed and steam cleaned on a regular basis so as to present a clean appearance. City may inspect 1763 vehicles at any time to determine compliance with sanitation requirements. Contractor shall make 1764 vehicles available to the Alameda County Health Department for inspection, at any frequency it requests. 1765 Contractor's name and local telephone number shall be displayed on all vehicles in at least four (4) inch 1766 characters. Vehicles shall be equipped with sign board holders or other hardware to allow public 1767 education signage of no less than thirty-six (36) by forty-eight (48) inches to be displayed on both sides of 1768 the vehicle.
1769 Contractor shall inspect each vehicle daily to ensure that all equipment is operating properly. Vehicles 1770 that are not operating properly shall be taken out of service until they are repaired and operate properly. 1771 Contractor shall repair, or arrange for the repair of, all of its vehicles and equipment for which repairs are 1772 needed because of accident, breakdown or any other cause so as to maintain all equipment in a safe and 1773 operable condition. City Contract Manager may inspect vehicles at any reasonable time, and within three 1774 (3) calendar days of such a request, to determine compliance with sanitation requirements. 1775 Contractor shall furnish the City a written inventory of all vehicles, including Collection vehicles, used in 1776 providing service, and shall update the inventory annually. The inventory shall list all vehicles by 1777 manufacturer, identification number, date of acquisition, type, capacity and decibel rating. 1778 5.5 CONTAINER REQUIREMENTS
1779 A. General. Contractor shall provide Customers with Collection Containers as requested by the 1780 Customer to meet its desired Service Level. All Contractor-provided Containers shall be new as of 1781 the Commencement Date and shall be designed and constructed to be watertight and prevent 1782 the leakage of liquids. Contractor shall purchase Containers with a useful life of ten (10) years or 1783 more and shall depreciate the Containers over a ten-year (10-year) period. New Container Packet Page 305
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1784 purchases shall comply with the requirements of Sections 5.5.B, C and F and Exhibit H. 1785 Contractor shall make Compactors available to Customers for purchase or lease and shall allow 1786 Customers to purchase or lease Compactor’s through an outside vendor. 1787 B. Carts. Solid Waste Container sizes for Customers subscribing to Cart service shall be twenty (20), 1788 thirty-five (35), sixty-four (64), and ninety-six (96)-gallons. Contractor shall provide “true” twenty 1789 (20) gallon carts in which the molded cart body has a capacity of twenty (20) gallons. For Single1790 Family Customers, sixty-four (64)-gallon Recycling Carts and Organic Carts shall be the standard 1791 Container provided by Contractor with Contractor providing ninety-six (96-) or thirty-five (35-) 1792 gallon Carts in lieu of sixty-four (64-) gallon Carts upon Customer request at no additional charge 1793 to the Customer.
1794 Upon request, specially designed one-gallon plastic jugs shall also be given, free of charge to each 1795 Single-Family Resident and Multi-Family Residential Premises when subscribing to Residential 1796 Cart service for Used Motor Oil Collection. Collection of Used Oil Filters shall be accomplished by 1797 placing the Used Oil Filter in a Customer-provided zip-locked plastic bag(s) next to the Recycling 1798 Cart.
1799
1800 C. Bins, Drop Boxes and Compactors. Contractor shall provide Bins, Drop Boxes and/or Compactors 1801 for storage and Collection of Solid Waste, Recyclables, Organic Materials, and C&D. Contractor 1802 shall install plastic lids on all Bin Containers owned and serviced by the Contractor that conform 1803 to the following color scheme: For collection of Garbage, bin bodies shall be white with black lids, 1804 for collection of Recyclables, bin bodies shall be blue; and for collection of Organic Materials, the 1805 bin bodiesshall be green. In addition, Contractor shall ensure that all Containers it uses to provide 1806 such services to customers serviced under the Agreement conform to such color scheme by 1807 January 1, 2036. Hardware such as hinges and wheels may be any color. All Containers with the 1808 capacity of one cubic yard or more shall meet applicable Federal regulations and Solid Waste Bin 1809 safety. All Bins, Drop Boxes and Compactors shall be painted the Contractor's standard color 1810 (subject to approval by the City Contract Manager). Contractor shall steam clean and repaint all 1811 Bins, Drop Boxes and Compactors as requested by Customer or as deemed necessary by 1812 Contractor to present a clean appearance. If Customer requests steam cleaning more frequently 1813 than one (1) time per year, Contractor may charge the Customer at Rates not to exceed City1814 approved Maximum Rates for such service. 1815
1816 D. Repair and Replacement of Containers; Inventory. Contractor shall be responsible for repairing 1817 or replacing Containers when Contractor determines the Container is no longer suitable for 1818 service; or when the City or Customer requests replacement of Customer’s Container that does 1819 not properly function, leaks, is damaged, or is otherwise not fit for service. Contractor shall be 1820 responsible for acquiring the replacement Containers. Contractor shall maintain a sufficient 1821 inventory of Containers to accommodate new Customer requests for service, requests for change 1822 in Service Levels (size, type, or number of Containers) from current Customers, and requests for 1823 replacement due to damage. All such Containers shall be provided within one (1) week of request. 1824 Contractor’s failure may request in assessment of Liquidated Damages pursuant to Section 10.6. 1825
1826 Contractor shall repair or replace all damaged or broken Containers within a one (1) week period. 1827 If the repair or replacement cannot be completed within a week, the Customer shall be notified 1828 by Contractor and a larger Container shall be made available until the proper Container can be 1829 replaced.

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1830
1831 E. City Ownership of Containers at End of Term. Upon expiration or early termination of 1832 Agreement, all Carts and Bins (for permanent Customers) purchased and put into service at 1833 Customers’ Premises during the Term of the Agreement shall become property of the City at no 1834 cost to the City if such Containers are fully depreciated. All Carts and Bins (for permanent 1835 Customers) purchased and put into service at Customers’ Premises during the Term of the 1836 Agreement that have not been fully depreciated shall be available to the City, at the City’s option, 1837 at a cost reflecting the net book value.
1838
1839 At its sole discretion, the City may elect not to exercise its rights with regards to this Section and, 1840 in such case; the Containers shall remain the property of the Contractor upon the expiration date 1841 of this Agreement or date of its earlier termination of this Agreement. In such case, Contractor 1842 shall be responsible for outstanding depreciation and for removing all Containers in service from 1843 premises within fourteen (14) Business Days of the expiration date or early termination date of 1844 this Agreement.
1845
1846 F. New Container Standards. Contractor shall provide Containers for storage and Collection of Solid 1847 Waste, Recyclable Materials, Organic Materials, and C&D which shall be designed and constructed 1848 to be watertight and prevent the leakage of liquids. 1849
1850 When purchasing plastic Collection Containers, Contractor shall purchase Containers that contain 1851 a minimum of 30% post-consumer recycled plastic content. All such Containers shall be 100% 1852 recyclable.
1853
1854 All new Carts shall be manufactured by injection or rotational molding methods and shall meet 1855 the Cart design, color, and performance requirements provided in Attachment N. Contractor shall 1856 obtain the City’s written approval of Cart specifications before acquisition. Carts provided to 1857 Customers shall have a useful life of ten (10) or more years as evidenced by a manufacturer’s 1858 warranty or other documentation acceptable to the City. 1859
1860 All Containers with a capacity of one (1) cubic yard or more shall meet applicable federal 1861 regulations for Bin safety and be covered with attached lids. All Bins, Drop Boxes, and Compactors 1862 shall be painted the Contractor's standard color and shall prominently display the name and 1863 telephone number of the Contractor.
1864
1865 Contractor shall differentiate Solid Waste Containers, Source Separated Recyclable Materials 1866 Containers, Source Separated Organic Materials, and Source Separated Recyclable C&D from each 1867 other by: (i) providing Containers of different colors, or (ii) adhering clearly-visible labels to each 1868 Container identifying the allowable material type. The second option is not acceptable for Carts 1869 purchased at the Commencement of the Agreement and during the Term; any new Carts shall 1870 have bodies in colors that differentiate the different material types to be Collected and such colors 1871 shall be approved by the City.
1872
1873 G. Container Labeling. For each new or replacement container deployed on or after Effective Date, 1874 Contractor shall label with adhesive label or in-mold graphics, or white, hot-stamped lettering, 1875 with language and graphics, that clearly lists the acceptable materials (e.g., Solid Waste, 1876 Recyclable Materials, cardboard, mixed paper, Yard Waste, Food Scraps and Other Targeted 1877 Organic Materials, Source Separated Recyclable C&D, , wood waste, metal, etc.) to be placed in Packet Page 307
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1878 the Container for Collection and the primary items that are Prohibited Container Contaminants 1879 for that Container type. The labeling shall be positioned on each Container so it is visible to the 1880 Customer at all times.
1881
1882 All Containers shall display the Contractor’s name, local telephone number, and some identifying 1883 inventory or serial number.
1884
1885 Contractor shall pay the City by September 1, 2023 a fee of $75,000 to be used by the City to print 1886 and label residential collection containers.
1887
1888 H. Maintenance, Cleaning, Painting. All Containers shall be maintained in a safe, serviceable, and 1889 functional condition and present a clean appearance. Contractor shall repair or replace all 1890 Containers damaged by Collection operations, unless damage is caused by Customer's gross 1891 negligence, in which case, the Customer will be billed for repair or replacement of Container. All 1892 Containers shall be maintained in a functional condition. 1893
1894 Contractor shall steam clean and repaint all Containers as needed (other than Carts) so as to 1895 present a clean appearance. Contractor shall offer steam cleaning service (or clean Container 1896 exchange) to Customers requesting such service, and shall charge Customers for such cleaning (or 1897 Container exchange) at a Rate not to exceed City-approved Maximum Rates. 1898
1899 Contractor shall remove graffiti from Containers within forty-eight (48) hours of identification by 1900 Contractor or notice by City or Customer if such graffiti includes any written or pictorial 1901 obscenities and otherwise within five (5) Business Days. Contractor staff including drivers shall 1902 be responsible for promptly reporting graffiti to maintain a clean appearance for all containers. 1903
1904 At the City’s request, Contractor shall provide City with a list of Containers and the date each 1905 Container was painted and maintained.
1906 5.6 PERSONNEL
1907 A. General. Contractor shall furnish such qualified personnel as may be necessary to provide the 1908 services required by this Agreement in a safe and efficient manner. Contractor shall designate at 1909 least one (1) qualified employee as City’s primary point of contact with Contractor who is 1910 principally responsible for Collection operations and resolution of service requests and 1911 complaints.
1912 Contractor shall use its best efforts to assure that all employees present a neat appearance and 1913 conduct themselves in a courteous manner. Contractor shall not permit its employees to accept, 1914 demand, or solicit, directly or indirectly, any additional compensation, or gratuity from members 1915 of the public.
1916 B. Driver Qualifications. All drivers must have in effect a valid license, of the appropriate class, 1917 issued by the California Department of Motor Vehicles. Contractor shall use the Class II California 1918 Department of Motor Vehicles employer “Pull Notice Program” to monitor its drivers for safety. 1919 C. Safety Training. Contractor shall provide suitable operational and safety training for all of its 1920 employees who operate Collection vehicles or equipment. Contractor shall train its employees 1921 involved in Collection to identify, and not to collect, Excluded Waste. Upon the City Contract Packet Page 308
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1922 Manager’s request, Contractor shall provide a copy of its safety policy and safety training 1923 program, the name of its safety officer, and the frequency of its trainings. 1924 D. Provision of Field Supervision. Contractor shall designate one, qualified employee as supervisor 1925 of field operations. The field supervisor will devote at least fifty percent (50%) of his or her time 1926 in the field checking on Collection operations, including responding to complaints. 1927 E. Identification. All representatives of the Contractor shall display and/or provide proper 1928 identification or documentation exhibiting their association with the Contractor while operating 1929 in the field.
1930 F. Wage and Benefits. Wages and benefits applicable to employees performing work under the 1931 Agreement shall be commensurate with current compensation or in accordance with existing 1932 agreements with represented labor groups. Labor agreements for drivers and mechanics shall be 1933 included as Exhibit K and future modification shall be submitted to the City. The Contractor shall 1934 provide full copies of the labor agreements including any and all amendments, extensions, 1935 renewals, or other forms of modification.
1936 G. Subcontractor Obligations. Subcontractors shall be required to comply with the obligations 1937 stated in this Section 5.6.
1938
1939 5.7 HAZARDOUS WASTE INSPECTION AND HANDLING
1940 A. Inspection Program and Training. Contractor shall develop a load inspection program that 1941 includes the following components: (i) personnel and training; (ii) load checking activities; (iii) 1942 management of wastes; and, (iv) record keeping and emergency procedures. 1943 Contractor’s load checking personnel, including its Collection vehicle drivers, shall be trained in:
1944 (i) the effects of Hazardous Substances on human health and the environment; (ii) identification 1945 of prohibited materials; and, (iii) emergency notification and response procedures. Collection 1946 vehicle drivers shall inspect Containers before Collection when practical. 1947 B. Response to Excluded Waste Identified During Collection. If Contractor determines that material 1948 placed in any Container for Collection is Excluded Waste or presents a hazard to Contractor's 1949 employees, the Contractor shall have the right to refuse to accept such material. The Customer 1950 or Generator shall be contacted by the Contractor and requested to arrange proper disposal. If 1951 the Customer or Generator cannot be reached immediately, the Contractor shall, before leaving 1952 the Premises, leave a tag at least two (2) inches by six (6) inches in size, which indicates the reason 1953 for refusing to Collect the material and lists the phone number of a facility that accepts the 1954 Excluded Waste or a phone number of an entity that can provide information on proper disposal 1955 of the Excluded Waste. Under no circumstances shall Contractor’s employees knowingly Collect 1956 Excluded Waste or remove unsafe or poorly containerized Excluded Waste from a Collection 1957 Container. Prior to Commencement of this Agreement, the tag that will be used to notice 1958 Customers of reason for non-Collection shall be reviewed and approved by the City Contract 1959 Manager.
1960 If Excluded Waste is found in a Collection Container or Collection area that could possibly result 1961 in imminent danger to people or property, the Contractor shall immediately notify the Fire 1962 Department.

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1963 C. Response to Excluded Waste Identified At Disposal or Processing Facility. Materials Collected 1964 by Contractor will be delivered to the Approved Facilities for purposes of Processing or disposal. 1965 In the event that load checkers and/or equipment operators at such facility identify Excluded 1966 Waste in the loads delivered by Contractor, such personnel shall remove these materials for 1967 storage in approved, on-site, Excluded Waste storage Container(s). Contractor shall arrange for 1968 removal of the Excluded Wastes at its cost by permitted haulers in accordance with Applicable 1969 Laws and regulatory requirements. The Contractor may at its sole expense attempt to identify 1970 and recover the cost of disposal from the Customer or Generator. If the Customer or Generator 1971 can be successfully identified, the cost of this effort, as well as the cost of disposal shall be 1972 chargeable to the Customer or Generator.
1973 5.8 CITY CONTRACT MANAGER
1974 City has designated staff, the City Contract Manager, to be responsible for the monitoring and 1975 administration of this Agreement. Contractor shall meet and confer with the City Contract Manager to 1976 resolve differences of interpretation and implement and execute the requirements of this Agreement in 1977 an efficient, effective, manner that is consistent with the stated objectives of this Agreement. 1978 From time to time the City Contract Manager may designate other agents of City to work with Contractor 1979 on specific matters. In such cases, those individuals should be considered designates of the City Contract 1980 Manager for those matters to which they have been engaged. Such designates shall be afforded all of the 1981 rights and access granted thereto. In the event of a dispute between the City Contract Manager’s 1982 designate and Contractor, the City Contract Manager’s determination shall be conclusive. 1983 In the event of dispute between the City Contract Manager and the Contractor regarding the 1984 interpretation of or the performance of services under this Agreement, the City Contract Manager’s 1985 determination shall be conclusive except where such determination results in a material impact to the 1986 Contractor’s revenue and/or cost of operations. In the event of a dispute between the City Contract 1987 Manager and the Contractor results in such material impact to the Contractor, Contractor may appeal the 1988 determination of the City Contract Manager to the City Council, whose determination shall be conclusive. 1989 For the purposes of this Section, “material impact” is an amount equal to or greater than one-quarter 1990 (1/4) of one (1) percent of Contractor’s annual Gross Receipts under this Agreement. 1991 City Contract Manager or their designate shall have the right to observe and review Contractor operations 1992 and Processing Facilities and enter Premises for the purposes of such observation and review, including 1993 review of Contractor’s records, during reasonable hours with reasonable notice. In no event shall 1994 Contractor prevent access to such Premises for a period of more than three (3) calendar days after 1995 receiving such a request.
1996 5.9 COOPERATION WITH CITY AND STOPWASTE
1997 The Contractor shall cooperate with the City, its agent, and/or StopWaste (also known as the Alameda 1998 County Waste Management Authority and Alameda Source Reduction and Recycling Board) and its agent 1999 if the City or StopWaste want to collect data, perform field work, and/or evaluate and monitor program 2000 results related to Collection, Processing, and disposal services performed under the terms of this 2001 Agreement. Contractor shall provide requested data, allow site visits, etc. to support the efforts of the 2002 City and StopWaste.

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2003 5.10 BILLING AUDIT AND PERFORMANCE REVIEW
2004 A. Selection and Cost. The City may conduct one (1) billing audit and performance review (“review”) 2005 of the Contractor’s performance during the extended term of this Agreement, and one (1) 2006 additional review if Term is further extended in accordance with Section 2.1 (C). The reviews will 2007 be performed by a qualified firm under contract to the City. The City shall have the final 2008 responsibility for the selection of the firm but shall seek and accept comments and 2009 recommendations from the Contractor. The Contractor shall be responsible for the cost of the 2010 review up to a maximum of Eighty Thousand Dollars ($80,000.00) for the initial term, and Eighty2011 Five Thousand Dollars ($85,000) for the Extended Term; with the cost being applied as a pass2012 through during the next annual rate adjustment. 2013 B. Purpose. The Performance Reviews may be designed to address all appropriate areas which may 2014 include, but are not limited to the following.
2015 a) Compliance with the terms of this Amended Agreement and Applicable Laws. 2016 b) Overall operational structure and management systems and procedures. 2017 c) Efficiency of collection operations, including an analysis of routes, schedules and the 2018 impact of Franchise requirements.
2019 d) Staffing practices, including the deployment of management and supervisory personnel. 2020 e) Financial management practices, including the Contractor's billing and collection system 2021 and its policies with regard to uncollected Customer accounts. 2022 f) Employee job and safety training, and management of Hazardous Waste. 2023 g) Procedures for receiving and resolving Customer and Service Recipient complaints and 2024 concerns.
2025 h) Procedures for the acquisition, maintenance, safety check, and replacement of 2026 equipment.
2027 i) Utilization and management of facilities, equipment, and personnel. 2028 j) Comparison with practices of businesses deemed similar to the Contractor. 2029 C. Customer Service Review. City (or its designated consultant) may also review the customer 2030 service functions and structure utilized by Contractor. This may include Contractor’s protocol for 2031 addressing Service Recipient complaints and service interruption procedures. Complaint logs may 2032 be reviewed, along with procedures and systems for tracking and addressing complaints. On-site 2033 and field observations by City (or its designated consultant) may include, but are not necessarily 2034 limited to:
2035 i. Interviews and discussions with Contractor’s administration and management personnel; 2036 ii. Interviews and discussions with Contractor’s financial and accounting personnel; 2037 iii. Interviews and discussions with route dispatchers, route drivers, vehicle maintenance 2038 staff, field and service supervisors, and managers; 2039 iv. Review and observation of Contractor’s customer service functions and structure, and 2040 vehicle maintenance practices;
2041 v. Review of public education and outreach materials; Packet Page 311
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2042 vi. Review of on-route collection services, including observation of driver performance and 2043 collection productivity and visual inspection of residential routes before and after 2044 collection to evaluate Cart placement and cleanliness of streets; 2045 vii. Review of vehicle and equipment maintenance log and accident or vehicle incident 2046 records, if any.
2047 D. Contractor’s Cooperation. Contractor shall cooperate fully with the review and provide all 2048 requested data, including operational data, financial data and other data requested by the City 2049 within thirty (30) Work Days. Failure of the Contractor to cooperate or provide the requested 2050 documents in the required time shall be considered an event of default. 2051 E. Additional Billing Audit and Performance Review. In the event that the Billing Audit and 2052 Performance Review concludes that Contractor is not in compliance with all terms and conditions 2053 of this Amended Agreement and such non-compliance is material, the City may conduct an 2054 Additional Billing Audit and Performance Review to ensure that Contractor has cured any such 2055 area of non-compliance. Contractor shall be responsible for the cost of any such Additional Billing 2056 Audit and Performance Review.
2057 F. City Requested Program Review. The City reserves the right to require the Contractor to 2058 periodically conduct reviews of the SFD and MFD and Commercial Garbage, Recyclable Materials, 2059 and Organic Waste collection programs to assess one or more of the following performance 2060 indicators: average volume of recyclable materials per setout per customer, average volume of 2061 green waste and or food scraps per setout per customer, participation level, contamination levels, 2062 etc. Prior to the program evaluation review, City and Contractor shall meet and discuss the 2063 purpose of the review and agree on the method, scope, and data to be provided by the 2064 Contractor.
2065 G. Cooperation with Other Program Reviews. If the City wants to collect program data, perform 2066 field work, conduct route audits to investigate customer participation levels and setout volumes 2067 and/or evaluate and monitor program results related to Garbage, Recyclable Materials and 2068 Organic Waste collected in the City by the Contractor, the Contractor shall cooperate with the 2069 City or its agent(s). Contractor shall also cooperate with any waste generation studies conducted 2070 by the City or its agent(s).
2071 H. Changes to Operations. In conjunction with the review of a particular Performance Review, the 2072 City reserves the right to require changes to the Contractor's operations, which the City 2073 determines to be necessary or appropriate by reason of the findings or results of the Performance 2074 Review to carry out the intent of the terms and conditions of this Amended Agreement, and 2075 subject to the modifications to the Contractor's Charges and Rates. When such requirements are 2076 placed on Contractor, the City and the Contractor shall negotiate in good faith a reasonable and 2077 appropriate compensation adjustment for any increase or decrease in the services or other 2078 obligations required of the Contractor. The City and the Contractor shall not unreasonably 2079 withhold agreement to such compensation adjustment. 2080 5.11 DIVERSION REQUIREMENT
2081 A. Diversion Rate Calculation. CalRecycle Diversion Requirement Calculation. For purpose of 2082 determining whether Contractor has met its CalRecycle diversion requirements under this 2083 Agreement, City and Contractor agree the CalRecycle diversion requirement rate will be 2084 calculated using the following formula: “Disposal Rate = City’s Pounds Per Person Per Day Packet Page 312
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2085 generated disposal divided by two times CalRecycle’s Target disposal rate for the City (Pounds Per 2086 Person Per Day). CalRecycle’s Diversion Rate = 1 – Disposal Rate.” 2087 B. Contractor’s Diversion Requirements. Contractor’s CalRecycle Diversion requirements are:
2088 a) For the term of the agreement, the minimum annual CalRecycle Diversion standard will be fifty 2089 percent (50%).
2090 F. Failure to Meet Diversion Requirements. If Contractor fails to meet its CalRecycle diversion 2091 standards, and Contractor has implemented all required Contractor diversion programs, the City 2092 may direct Contractor to modify its programs or implement new diversion programs. Any such 2093 modification of Contractor’s existing diversion programs or addition of new diversion programs 2094 done at the City’s request would be in accordance with Section 3.5. (Change in scope) 2095 Notwithstanding any other provision of this Agreement to the contrary, where CalRecycle has determined 2096 that there are no commercially viable markets for a specific type of Recyclable Material(s), or with written 2097 notice to City, Contractor is unable to identify a market for one or more Recyclable Material(s) despite the 2098 exercise of commercially reasonable efforts to process and market the material, and determines, in the 2099 interest of safeguarding public health, to dispose of the Recyclable Material(s), such a determination shall 2100 not constitute a failure to implement service, a failure to implement a program, or an event of default 2101 hereunder.
2102
2103
2104
2105 ARTICLE 6. RECORD KEEPING AND REPORTING
2106 6.1 RECORD KEEPING AND AUDIT OF RECORDS
2107 Contractor shall maintain accounting, statistical, operational, and other records related to its performance 2108 as necessary to provide reporting under AB 939, AB 341, AB 1826 and SB 1383 and to demonstrate 2109 compliance with this Agreement. Contractor shall maintain, in form and format satisfactory to the City, 2110 an Implementation Record meeting the requirements of the SB 1383 Regulations and CalRecycle. 2111 Contractor shall be responsible for requesting information from the City for City-related activities such as 2112 procurement and outreach and education for maintenance of the Implementation Record; and shall 2113 obtain such information as appropriate from StopWaste. The Contractor shall maintain complete 2114 financial statements and accounting records for operations under this Agreement. Contractor shall 2115 account for revenues received and expenses incurred as a result of this Agreement separately from the 2116 accounting for other operations performed by Contractor or its Affiliates. The Gross Receipts derived 2117 from the Collection Services under this Agreement, whether such services are performed by the 2118 Contractor, by an Affiliate, or by a Subcontractor, shall be recorded as revenues in the accounts of the 2119 Contractor. Upon demand, the Contractor shall permit the City Contract Manager to examine and audit 2120 the books of account of the Contractor at any and all reasonable times for the purpose of verifying 2121 Contractor’s performance under this Agreement. Upon request, the Contractor shall allow the City 2122 Contract Manager to examine the reports of Gross Receipts and the invoices pertaining to any fee or 2123 charge approved by the City Council for Services provided under this Agreement. Such request shall be 2124 made at reasonable times and with reasonable notice.

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2125 In the event of an extraordinary Rate adjustment pursuant to Section 8.4, such records shall be subject to 2126 review in accordance with appropriate professional standards, and inspection, for the primary purpose of 2127 reviewing changes in costs to the Contractor attributable to the extraordinary Rate adjustment request, 2128 at any reasonable time by an independent third party. The selection of the independent third party as 2129 well as the scope of work for such review shall be approved in advance by the City Contract Manager. The 2130 independent reviewer shall provide any and all drafts of its review to the City and the Contractor. The 2131 Party requesting the extraordinary Rate adjustment review shall bear the cost of the review. 2132 Unless otherwise required in this Article, Contractor shall retain all records and data required to be 2133 maintained by this Agreement for the Term of this Agreement plus three (3) years after its expiration or 2134 earlier termination. Records and data shall be in chronological and organized form and readily and easily 2135 interpreted. Upon request, any such records shall be retrieved in a timely manner by Contractor and made 2136 available to the City Contract Manager. Contractor shall maintain adequate record security to preserve 2137 records from events that can be reasonably anticipated such as a fire, theft, and an earthquake. 2138 Electronically-maintained data and records shall be protected and backed-up. The Contractor shall obtain, 2139 within one hundred twenty (120) days of a request by the City Contract Manager, complete independently 2140 audited financial statements for the prior calendar year, including its balance sheet, statement of 2141 revenues and expenses, and statement of changes in cash position, and provide such financial statements 2142 to the City Contract Manager.
2143 City views its ability to defend itself against Comprehensive Environmental Response, Compensation and 2144 Liability Act (CERCLA), and related litigation as a matter of great importance. For this reason, City regards 2145 its ability to prove where Collected Solid Waste is taken for transfer or disposal. Contractor shall maintain 2146 records which can establish where Solid Waste Collected was disposed. This provision shall survive the 2147 expiration or earlier termination of this Agreement. Contractor shall maintain these records for a 2148 minimum of ten (10) years beyond expiration or earlier termination of the Agreement. Contractor shall 2149 provide these records to City (upon request or at the end of the record retention period) in an organized 2150 and indexed manner rather than destroying or disposing of them. 2151 6.2 REPORT SUBMITTAL REQUIREMENTS
2152 Contractor shall submit monthly and quarterly reports within thirty (30) calendar days after the end of 2153 the calendar month or quarter, as applicable. Contractor shall submit annual reports no later than forty2154 five (45) calendar days after the end of each calendar year. Monthly, quarterly, and annual reports shall, 2155 at a minimum, include all data and information as described in Exhibit C. 2156 Contractor may propose report formats that are responsive to the objectives and audiences for each 2157 report. The format of each report shall be approved by the City Contract Manager and such approval shall 2158 not be unreasonably withheld. City Contract Manager may, from time to time during the Term, review 2159 and request changes to Contractor’s report formats and content and Contractor shall not unreasonably 2160 deny such requests. Upon City request, Contractor shall enable City to work with Contractor to develop 2161 custom reports in addition to the regularly scheduled reports. 2162 Contractor shall submit (via mail and e-mail) all reports to the City Contract Manager. 2163 City reserves the right to require Contractor to provide additional reports or documents as City Contract 2164 Manager reasonably determines to be required for the administration of this Agreement or compliance 2165 with Applicable Law.

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2166 ARTICLE 7. FRANCHISE FEES AND OTHER FEES
2167 7.1 FRANCHISE FEE
2168 In consideration of the rights provided Contractor herein, Contractor shall pay Franchise Fees to City each 2169 month equal to twenty percent (20%) of Gross Receipts for all services performed under this Agreement. 2170 This fee may be adjusted by mutual agreement of the City and Contractor through a written amendment 2171 to this Agreement. In the event that the City and Contractor agree to an adjustment to the amount of the 2172 Franchise Fee during the terms of this Agreement, Contractor shall include an amount equal to the 2173 adjustment in Contractor’s Compensation.
2174 7.2 ADJUSTMENT TO FEES
2175 City may set other fees or adjust the fees established in this Article from time to time during the Term of 2176 this Agreement and such adjustments and any Franchise Fee adjustments shall be included in the 2177 adjustment of Maximum Rates as described in Exhibit D. 2178 7.3 PAYMENT SCHEDULE AND LATE FEES
2179 At the end of each month, during the Term of this Agreement, Contractor shall remit to City all fees for 2180 the previously completed month as described in this Article. Such fees shall be remitted to City and sent 2181 or delivered to the City Contract Manager. If such remittance is not paid to City on or before the last day 2182 of the month, all fees due shall be subject to a delinquency penalty of two percent (2%), which attaches 2183 on the first day of delinquency. The delinquency penalty shall be increased an additional two percent (2%) 2184 for each additional month the payment remains delinquent. 2185 Each monthly remittance to City shall be accompanied by a statement listing the amount of each fee paid; 2186 calculation of each fee; and, statement of Gross Receipts, by Customer Type for the period collected from 2187 all operations conducted or permitted by this Agreement. City Contract Manager may, at any time during 2188 the Term, request a detailed calculation of Gross Receipts which may include, but is not necessarily limited 2189 to, the number of Customers charged at each Service Level and Rate for each billing period. 2190 City Contract Manager may, at any time during the Term, perform an audit of Contractor’s billings and 2191 payment of fees. Contractor shall cooperate with the City Contract Manager in any such audit. Should City 2192 or its agent perform this review and identify billing errors or other errors in payment of fees valued at one 2193 (1) percent or more of Gross Receipts, Contractor shall, in addition to compensating City for lost fees, 2194 reimburse the City’s cost of the review.
2195 7.4 ONE-TIME NEGOTIATIONS PAYMENT
2196 Within (5) Business Day of the Effective Date of this Agreement, Contractor shall pay the City thirty-one 2197 thousand, one hundred and twenty-three dollars ($31,123). The Contractor may recover this payment 2198 through Contractor’s Compensation if the expense is amortized over ten (10) years. 2199
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2200 7.5 SB 1383 FEE
2201 In consideration of the administrative costs of managing the City’s solid waste program, including but not 2202 limited to implementation of SB 1383, Contractor shall pay City an annual SB 1383 Fee in an amount 2203 adopted by a resolution of the City Council or by City Manager if City Council has delegated such authority 2204 to the City Manager by resolution. Such fee shall be treated as a Pass-Through Cost during Indexed and 2205 Cost-Based Rate Adjustments and not subject to profit. 2206
2207
2208 ARTICLE 8. CONTRACTOR'S COMPENSATION AND
2209 RATE SETTING
2210 8.1 GENERAL
2211 The Contractor’s Compensation for performance of all its obligations under this Agreement shall be Gross 2212 Receipts. Contractor's Compensation provided for in this Article shall be the full, entire and complete 2213 compensation due to Contractor pursuant to this Agreement for all labor, equipment, materials and 2214 supplies, Processing and disposal fees, fees due to City, taxes, insurance, bonds, overhead, operations, 2215 profit, and all other things necessary to perform all the services required by this Agreement in the manner 2216 and at the times prescribed. Nothing herein shall obligate City to provide any compensation to Contractor 2217 beyond Gross Receipts.
2218 If Contractor’s actual costs, including fees due to City, are more than Gross Receipts, Contractor shall not 2219 be compensated for the difference in actual costs and actual Gross Receipts. If Contractor’s actual costs 2220 are less than the actual Gross Receipts, Contractor shall retain the difference provided that Contractor 2221 has paid City fees pursuant to Article 7.
2222 Under this Agreement, Contractor shall have the right and obligation to charge and collect from 2223 Customers, Rates that shall not exceed the Maximum Rates in Exhibit L that are approved by the City for 2224 provision of services to Customers. The Maximum Rates for Rate Period One are based on the Contractor’s 2225 Proposal. Contractor’s proposed costs and operating assumptions for Rate Period One are presented in 2226 Exhibit N.
2227 The Contractor or its Subcontractor(s) that operates the Approved Facilities shall retain revenues received 2228 for the sale of Source Separated Recyclable Materials including California Redemption Value revenues, 2229 Source Separated Organic Materials, and Source Separated Recyclable C&D. Such revenues have been 2230 considered in the establishment of Maximum Rates for services provided under this Agreement. Neither 2231 Contractor nor its Affiliates or Subcontractor(s) that operates the Approved Facilities are entitled to grant 2232 funds available through the Department of Resources Recycling and Recovery (CalRecycle) through its 2233 “Curbside Supplemental Payments” for registered Curbside Recycling programs or “City/County Payment 2234 Program” pursuant to Section 14581(a)(5)(A) of the California Beverage Container Recycling and Litter 2235 Reduction Act.
2236 8.2 RATES AND ANNUAL ADJUSTMENTS
2237 A. General. The City shall be responsible for approving Maximum Rates as described in this Article.

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2238 A Maximum Rate has been established for each individual Service Level and the initial Rates for 2239 Rate Period One are presented in Exhibit L. Contractor may, in its sole discretion, charge 2240 Customers any amount up to and including the Maximum Rate approved by the City, but in no 2241 case exceeding the Maximum Rate. Contractor shall charge all Customers that have the same 2242 Service Level at the same Rate except as provided herein for seniors and life-line customers so 2243 that Customers are treated equitably. The comparability of Service Levels and related Rates shall 2244 be considered separately for Solid Waste, Source Separated Recyclable Materials, Source 2245 Separated Organics Materials, and C&D services.
2246 If at any time during the Term of the Agreement, the Contractor determines the need for a 2247 Maximum Rate that does not appear on the City-approved Maximum Rate schedule in Exhibit L, 2248 Contractor shall immediately notify the City and request establishment of such Maximum Rate. 2249 For example, if a Customer requires Collection of Organic Materials in a fifteen (15) cubic yard 2250 Compactor five (5) times per week and the City-approved Maximum Rate schedule does not 2251 include this level of service, the Contractor must request that the City approve a Maximum Rate 2252 for this level of service.
2253 B. Rates for Rate Period One. Maximum Rates for Rate Period One, which are presented in Exhibit 2254 L, were determined by Contractor and City and were approved by City resolution on or before the 2255 execution of the Agreement. The Maximum Rates for Rate Period One shall be effective from the 2256 Commencement Date of this Agreement through December 31, 2023. 2257 C. Rates for Subsequent Rate Periods. Maximum Rates for subsequent Rate Periods shall be 2258 adjusted annually commencing January 1, 2024 in accordance with this Section 8.2 and Exhibit D. 2259 The index-based adjustment, which is described in Exhibit D1, involves applying the percentage 2260 change in the All Urban Consumers Index (CPI-U) – Water and Sewer and Trash Collection (as 2261 published by the U.S. Department of Labor, Bureau of Labor Statistics, Series CUSR0000SEHG to 2262 calculate adjusted Maximum Rates. Such Rate adjustment calculations shall be performed in strict 2263 conformance to the procedures described in Exhibit D1. 2264 The City may request one cost-based Rate adjustment (using the methodology described in 2265 Exhibit D2) to set Maximum Rates for Rate Periods Three, Four or Five, Contractor may request 2266 one cost-based Rate adjustment to set Maximum Rates for Rate Period Four or Five, and 2267 Contractor and City may each request one cost-based Rate adjustment to set Maximum Rates for 2268 Rate Periods Six, Seven, Eight, Nine, or Ten provided that there are at least two (2) years between 2269 the cost-based Rate adjustments requested by Contractor. For example, if Contractor requests a 2270 cost-based Rate adjustment to set Rate Period Five Maximum Rates, Rate Period Seven is the 2271 earliest Rate Period that Contractor may request the next cost-based adjustment. In summary, 2272 up to four (4) cost-based Rate adjustments may be performed if the City and Contractor both 2273 exercise their rights pursuant to this paragraph. In the event that all businesses within the 2274 Newpark Planning Area close, Contractor can request an additional cost-based analysis. 2275 A cost-based Rate adjustment, if requested by either Party, will be performed instead of the index2276 based Rate adjustment for that Rate Period. The option to request a cost-based adjustment 2277 process during the Term of the Agreement is intended to provide the Parties an opportunity to 2278 adjust Maximum Rates to more accurately reflect actual revenues and costs of operations if the 2279 revenue and cost indices are not tracking with actual changes. Such Rate adjustment calculations 2280 shall be performed in strict conformance to the procedures described in Exhibit D2. 2281 D. Rate Structure. The City and Contractor shall meet and confer to change the relationship of 2282 individual Rates in comparison with other Rates. Any such changes would occur in conjunction Packet Page 317
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2283 with the annual Rate adjustment process described in Section 8.2.C or in conjunction with a Rate 2284 adjustment resulting from an extraordinary Rate adjustment in accordance with Section 8.4. 2285 8.3 APPROVED TRANSFER FACILITY COST RECONCILIATION 2286 Parties recognize that the timing of the adjustment to Maximum Rates herein and the City’s adjustment 2287 of the Tipping Fee(s) at the Approved Transfer Facility are not concurrent. As a result, the Approved 2288 Transfer Facility Tipping Fee(s) used in the calculation of adjusted Maximum Rates relies on an estimate 2289 of the Tipping Fee(s). At the end of each Rate Period, the City agrees to reconcile the actual Tipping Fee(s) 2290 and the estimated Tipping Fee(s) and calculate the net additional Approved Transfer Facility cost or net 2291 Approved Transfer Facility cost savings based on the Tonnage of material Contractor delivered to the 2292 Approved Transfer Facility. If Contractor incurred an additional Approved Transfer Facility cost, City shall 2293 pay the difference to Contractor or reflect the amount as an adjustment in the next annual Rate 2294 adjustment. If Contractor realized an Approved Transfer Facility cost savings, the savings shall be reflected 2295 as an adjustment in the next annual Rate adjustment. 2296 8.4 EXTRAORDINARY RATE ADJUSTMENTS
2297 It is understood that the Contractor accepts the risk for changes in cost of providing services and the 2298 service levels requested by Customers and therefore the extraordinary adjustments to Maximum Rates 2299 shall be limited to a Change in Law, or Force Majeure event that materially affects Contractor’s costs of 2300 performance, or a City-directed change in scope. If a Change in Law, Force Majeure event or City-directed 2301 change in scope (pursuant to Section 3.5) occurs, the Contractor may petition City for an adjustment to 2302 the Maximum Rates in excess of the annual adjustment described in Section 8.2. 2303 Contractor shall prepare an application for the extraordinary Rate adjustment calculating the net financial 2304 effect on its operations (both increases and decreases of costs and revenues) resulting from the Change 2305 in Law or City Directed Change in Scope (but not resulting from unrelated changes in costs and revenues), 2306 clearly identifying all assumptions related to such calculations and providing the underlying 2307 documentation supporting the assumptions. The application shall be prepared in compliance with the 2308 procedures described in Exhibit D2 and shall provide all information requested by City Contract Manager 2309 specific to the nature of the request being made. City Contract Manager shall evaluate the application for 2310 reasonableness. As part of that review, the City Contract Manager may request access to the financial 2311 statements and accounting records required to be maintained by the Contractor (pursuant to Article 6) in 2312 order to determine the reasonableness of the Contractor’s application. Should the Contractor not grant 2313 such access, then the City may rely on the Contractor’s Proposal and other information available to it as 2314 the basis for making reasonable assumptions regarding what those accounting and financial records 2315 would have shown and therefore the reasonableness of the Contractor’s application. Contractor shall pay 2316 all reasonable costs incurred by the City, including the costs of outside accountants, attorneys, and/or 2317 consultants, in order to make a determination of the reasonableness of the requested Rate adjustment. 2318 In the event of such an application for extraordinary Rate adjustment, it is understood that the City or 2319 Contractor, as the case may be, shall have the burden of demonstrating the reasonableness of the 2320 requested adjustment. Consent to any City or Contractor rate adjustment request that is reasonable and 2321 that is supported by the requesting Party’s documentation shall not be unreasonably withheld by the 2322 other Party.
2323 The Contractor may appeal the decision of the City Contract Manager to the City Council, which shall then Packet Page 318
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2324 make the final determination as to whether an adjustment to the Maximum Rates will be made, and if a 2325 Rate adjustment is permitted, the amount of the Rate adjustment. With respect to an extraordinary Rate 2326 adjustment requested by the City Contract Manager, the City Council shall then make the final 2327 determination as to whether an adjustment to the Maximum Rates will be made, and if a Rate adjustment 2328 is permitted, the amount of the Rate adjustment.
2329 ARTICLE 9. INDEMNITY, INSURANCE, AND
2330 PERFORMANCE BOND
2331 9.1 INDEMNIFICATION
2332 A. General. Contractor shall indemnify, defend with counsel acceptable to City, and hold harmless 2333 (to the full extent permitted by law) City and its officers, officials, employees, volunteers, and 2334 agents from and against any and all claims, liability, loss, injuries, damage, expense, and costs 2335 (including without limitation costs and fees of litigation, including attorneys’ and expert witness 2336 fees) (collectively, “Damages”) of every nature arising out of or in connection with Contractor’s 2337 performance under this Agreement, or its failure to comply with any of its obligations contained 2338 in the Agreement, except to the extent such loss or damage was caused by the negligence or 2339 willful misconduct of City.
2340 B. Excluded Waste. Contractor acknowledges that it is responsible for compliance during the entire 2341 Term of this Agreement with all Applicable Laws. Contractor shall not store, transport, use, or 2342 dispose of any Excluded Waste except in strict compliance with all Applicable Laws. 2343 In the event that Contractor negligently or willfully mishandles Excluded Waste in the course of 2344 carrying out its activities under this Agreement, Contractor shall at its sole expense promptly take 2345 all investigatory and/or remedial action reasonably required for the remediation of such 2346 environmental contamination. Prior to undertaking any investigatory or remedial action, 2347 however, Contractor shall first obtain City’s approval of any proposed investigatory or remedial 2348 action. Should Contractor fail at any time to promptly take such action, City may undertake such 2349 action at Contractor’s sole cost and expense, and Contractor shall reimburse City for all such 2350 expenses within thirty (30) calendar days of being billed for those expenses, and any amount not 2351 paid within that thirty (30) calendar day period shall thereafter be deemed delinquent and subject 2352 to the delinquent fee payment provision of Section 7.3. These obligations are in addition to any 2353 defense and indemnity obligations that Contractor may have under this Agreement. The 2354 provisions of this Section shall survive the termination or expiration of this Agreement. 2355 Notwithstanding the foregoing, Contractor’s duties under this subsection shall not extend to any 2356 claims arising from the disposal of Solid Waste at the Approved Transfer Facility or disposal facility 2357 that accepted Solid Waste from the Approved Transfer Facility, including, but not limited to, 2358 claims arising under Comprehensive Environmental Response, Compensation and Liability Act 2359 (CERCLA) unless such claim is a direct result of Contractor’s negligence or willful misconduct. 2360 C. Environmental Indemnity. Contractor shall defend, indemnify, and hold City harmless against 2361 and from any and all claims, suits, losses, penalties, damages, and liability for damages of every 2362 name, kind and description, including attorneys’ fees and costs incurred, attributable to the 2363 negligence or willful misconduct of Contractor in handling Excluded Waste.

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2364 D. Related to AB 939, AB 341, AB 1826, and SB 1383. Contractor’s duty to defend and indemnify 2365 herein includes all fines and/or penalties imposed by CalRecycle if the requirements of AB 939, 2366 AB 341 AB 1826 and/or SB 1383 are not met by the Contractor with respect to the materials 2367 Collected under this Agreement and/or Contractor’s other obligations under this Agreement, and 2368 such failure is: (i) due to the failure of Contractor to meet its obligations under this Agreement; 2369 or, (ii) due to Contractor delays in providing information that prevents Contractor or the City from 2370 submitting reports to regulators in a timely manner. 2371 E. Related to Proposition 218. Should there be a Change in Law or a new judicial interpretation of 2372 Applicable Law, including, but not limited to, Article XIII C and D of the California Constitution 2373 (Commonly Proposition 218), which impacts the Maximum Rates for the Collection services 2374 established in accordance with this Agreement, Contractor agrees to meet and confer with City 2375 to discuss the impact of such Change in Law on either Party’s ability to perform under this 2376 Agreement.
2377 If, at any time, an adjustment to Maximum Rates determined to be appropriate by both City 2378 (which determination shall not be unreasonably withheld) and Contractor to compensate 2379 Contractor for increases in costs as described in this Agreement cannot be implemented for any 2380 reason, Contractor shall be granted the option to negotiate with City, in good faith, a reduction 2381 of services equal to the value of the Maximum Rate adjustment that cannot be implemented. If 2382 City and Contractor are unable to reach agreement about such a reduction in services, then 2383 Contractor may terminate this Agreement upon one hundred eighty (180) calendar days prior 2384 written notice to City, in which case the Contractor and City shall each be entitled to payment of 2385 amounts due for contract performance through the date of termination but otherwise will have 2386 no further obligation to one another pursuant to this Agreement after the date of such 2387 termination.
2388 Should a court of competent jurisdiction determine that the Contractor cannot charge and/or 2389 increase its Rates for charges related to Franchise Fees and governmental fees and charges, 2390 Contractor shall reduce the Rates it charges Customers a corresponding amount, providing said 2391 fees, Rates and/or charges disallowed by the court are not related to the cost of providing service 2392 hereunder and had been incorporated in the Rates charged by Contractor to its Customers. 2393 Nothing herein is intended to imply that California Constitution, Articles XIIIC or XIIID, apply to the 2394 Maximum Rates established for services provided under this Agreement; rather this Section is 2395 provided merely to allocate risk of an adverse judicial interpretation between the Parties. 2396 This provision (Section 9.1) will survive the expiration or earlier termination of this Agreement 2397 and shall not be construed as a waiver of rights by City to contribution or indemnity from third 2398 parties.
2399 9.2 INSURANCE
2400 A. General Requirements. Contractor shall, at its sole cost and expense, maintain in effect at all 2401 times during the Term of this Agreement not less than the following coverage and limits of 2402 insurance:
2403 B. Coverages and Requirements. During the Term of this Agreement, Contractor shall at all times 2404 maintain, at its expense, the following coverages and requirements. The comprehensive general 2405 liability insurance shall include broad form property damage insurance.

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2406 1. Minimum Coverages. Insurance coverage shall be with limits not less than the following:
2407 Comprehensive General Liability – $10,000,000 combined single limit per occurrence for 2408 bodily injury, personal injury, and property damage. 2409 Automobile Liability – $10,000,000 combined single limit per accident for bodily injury 2410 and property damage (include coverage for hired and non-owned vehicles). 2411 Workers’ Compensation – Statutory Limits/Employers’ Liability - $1,000,000/accident 2412 for bodily injury or disease.
2413 Employee Blanket Fidelity Bond – $500,000 per employee covering dishonesty, forgery, 2414 alteration, theft, disappearance, and destruction (inside or outside). 2415 2. Additional Insured. City, its officers, agents, employees, and volunteers shall be named 2416 as additional insured on all but the workers’ compensation coverages. General liability 2417 coverage can be provided in the form of an endorsement to the Contractor’s insurance 2418 (at least as broad as ISO Form CG 20 10 and CG 20 37 for completed operations). 2419 3. Said policies shall remain in force through the life of this Agreement and shall be payable 2420 on a “claims made” basis. For all “claims made” coverage, in the event that the Contractor 2421 changes insurance carriers Contractor shall purchase “tail” coverage or otherwise provide 2422 for continuous coverage covering the Term of this Agreement and not less than three (3) 2423 years thereafter. Proof of such “tail” or other continuous coverage shall be required at 2424 any time that the Contractor changes to a new carrier prior to receipt of any payments 2425 due.
2426 4. The Contractor shall declare all aggregate limits on the coverage before commencing 2427 performance of this Agreement, and City’s Risk Manager reserves the right to require 2428 higher aggregate limits to ensure that the coverage limits required for this Agreement as 2429 set forth above are available throughout the performance of this Agreement. 2430 5. The deductibles or self-insured retentions are for the account of Contractor and shall be 2431 the sole responsibility of the Contractor.
2432 6. Each insurance policy shall provide or be endorsed to state that coverage shall not be 2433 suspended, voided, canceled by either Party, reduced in coverage or in limits except after 2434 thirty (30) calendar days prior written notice by certified mail, return receipt requested, 2435 has been given to City Contract Manager ten (10) Business Days for delinquent insurance 2436 premium payments).
2437 7. Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A2438 VII, unless otherwise approved by City Risk Manager. 2439 8. The policies shall cover all activities of Contractor, its officers, employees, agents and 2440 volunteers arising out of or in connection with this Agreement. 2441 9. For any claims relating to this Agreement, the Contractor’s insurance coverage shall be 2442 primary, including as respects City, its officers, agents, employees, and volunteers. Any 2443 insurance maintained by City shall apply in excess of, and not contribute to, coverage 2444 provided by Contractor’s liability insurance policy. 2445 10. To the extent legally enforceable, the Contractor shall waive all rights of subrogation 2446 against City, its officers, employees, agents, and volunteers.

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2447 C. Endorsements. Prior to the Effective Date pursuant to this Agreement, Contractor shall furnish 2448 City Contract Manager with certificates or original endorsements reflecting coverage required by 2449 this Agreement. The certificates or endorsements are to be signed by a Person authorized by that 2450 insurer to bind coverage on its behalf. All certificates or endorsements are to be received by, and 2451 are subject to the approval of, City Risk Manager before work commences. 2452 D. Renewals. During the Term of this Agreement, Contractor shall furnish City Contract Manager 2453 with certificates or original endorsements reflecting renewals, changes in insurance companies, 2454 and any other documents reflecting the maintenance of the required coverage throughout the 2455 entire Term of this Agreement. The certificates or endorsements are to be signed by a Person 2456 authorized by that insurer to bind coverage on its behalf. 2457 E. Workers' Compensation. Contractor shall provide workers’ compensation coverage as required 2458 by State law, and prior to the Effective Date pursuant to this Agreement, Contractor shall file the 2459 following statement with City.
2460 “I am aware of the provisions of Paragraph 3700 of the Labor Code that require every employer 2461 to be insured against liability for workers' compensation or to undertake self-insurance in 2462 accordance with the provisions of that code, and I will comply with such provisions before 2463 commencing any services required by this Agreement. 2464 The Person executing this Certificate on behalf of Contractor affirmatively represents that she/he 2465 has the requisite legal authority to do so on behalf of Contractor, and both the Person executing 2466 this Agreement on behalf of Contractor and Contractor understand that City is relying on this 2467 representation in entering into this Agreement.”
2468 9.3 PERFORMANCE BOND
2469 Within seven (7) calendar days of the City’s notification to Contractor that the City has executed this 2470 Agreement, Contractor shall file with the City a bond, payable to the City, securing the Contractor's 2471 performance of its obligations under this Agreement and such bond shall be renewed annually if necessary 2472 so that the performance bond is maintained at all times during the Term. The principal sum of the bond 2473 shall be Two Million Three Hundred Thousand Dollars ($2,300,000) and shall be adjusted every three (3) 2474 years, commencing with Rate Period Three, to equal three (3) months of the prior Rate Period’s annual 2475 Gross Receipts. The bond shall be executed as surety by a corporation authorized to issue surety bonds in 2476 the State of California that has a rating of A or better in the most recent edition of Best’s Key Rating Guide, 2477 and that has a record of service and financial condition satisfactory to the City. The bond shall be in the 2478 form attached as Exhibit J.
2479 9.4 GUARANTY
2480 Concurrently with execution of this Agreement, Contractor shall furnish a Guaranty of its performance 2481 under this Agreement, in the form of Exhibit G, properly executed by Republic Services, a Delaware 2482 corporation which owns all of the issued and outstanding common stock of Contractor.

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2483 ARTICLE 10. DEFAULT AND REMEDIES
2484 10.1 EVENTS OF DEFAULT
2485 All provisions of the Agreement are considered material. Each of the following shall constitute an event 2486 of default.
2487 A. Fraud or Deceit. Contractor practices, or attempts to practice, any fraud or deceit upon the City. 2488 B. Insolvency or Bankruptcy. Contractor becomes insolvent, unable, or unwilling to pay its debts, 2489 or upon listing of an order for relief in favor of Contractor in a bankruptcy proceeding. 2490 C. Failure to Maintain Coverage. Contractor fails to provide or maintain in full force and affect the 2491 Workers' Compensation, liability, or indemnification coverage as required by this Agreement. 2492 D. Violations of Regulation. Contractor violates any orders or filings of any regulatory body having 2493 authority over Contractor relative to this Agreement that reasonably may materially interfere 2494 with Contractor’s performance of this Agreement, provided that Contractor may contest any such 2495 orders or filings by appropriate proceedings conducted in good faith, in which case no breach or 2496 default of this Agreement shall be deemed to have occurred. 2497 E. Violations of Applicable Law. Contractor violates Applicable Law relative to this Agreement that 2498 reasonably may materially interfere with Contractor’s performance of this Agreement. 2499 F. Failure to Perform Direct Services. Contractor ceases to provide Collection, transportation, or 2500 Processing services as required under this Agreement for a period of two (2) consecutive calendar 2501 days or more, for any reason within the control of Contractor. 2502 G. Failure to Pay or Report. Contractor fails to make any payments to City required under this 2503 Agreement including payment of City fees or Liquidated Damages and/or refuses to provide City 2504 with required information, reports, and/or records in a timely manner as provided for in the 2505 Agreement.
2506 H. Acts or Omissions. Any other act or omission by Contractor which violates the terms, conditions, 2507 or requirements of this Agreement, AB 939, as it may be amended from time to time, or any law, 2508 statute, ordinance, order, directive, rule, or regulation issued there under and which is not 2509 corrected or remedied within the time set in the written notice of the violation or, if Contractor 2510 cannot reasonably correct or remedy the breach within the time set forth in such notice, if 2511 Contractor should fail to commence to correct or remedy such violation within the time set forth 2512 in such notice and diligently effect such correction or remedy thereafter. 2513 I. False, Misleading, or Inaccurate Statements. Any representation or disclosure made to the City 2514 by Contractor in connection with or as an inducement to entering into this Agreement, or any 2515 future amendment to this Agreement, which proves to be false or misleading in any material 2516 respect as of the time such representation or disclosure is made, whether or not any such 2517 representation or disclosure appears as part of this Agreement; and, any Contractor-provided 2518 report containing a misstatement, misrepresentation, data manipulation, or an omission of fact 2519 or content explicitly defined by the Agreement, excepting non-numerical typographical and 2520 grammatical errors.
2521 J. Seizure or Attachment. There is a seizure of, attachment of, or levy on, some or all of Contractor’s 2522 operating equipment, including without limits its equipment, maintenance or office facilities, 2523 Approved Facility(ies), or any part thereof.

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2524 K. Suspension or Termination of Service. There is any termination or suspension of the transaction 2525 of business by Contractor related to this Agreement, including without limit, due to labor unrest 2526 including strike, work stoppage or slowdown, sick-out, picketing, or other concerted job action 2527 lasting more than two (2) calendar days.
2528 L. Criminal Activity. Contractor, its officers, managers, or employees are found guilty of criminal 2529 activity related directly or indirectly to performance of this Agreement or any other agreement 2530 held with the City.
2531 M. Assignment without Approval. Contractor transfers or assigns this Agreement without the 2532 expressed written approval of the City unless the assignment is permitted without City approval 2533 pursuant to Section 12.6.
2534 N. Failure to Provide Proposal or Implement Change in Service. Contractor fails to provide a 2535 proposal for new services or changes to services or fails to implement a change in service as 2536 requested by the City as specified in Section 3.5. 2537 O. Failure to Perform Any Obligation. Contractor fails to perform any obligation established under 2538 this Agreement.
2539 City shall provide Contractor written notice of default within seven (7) calendar days of the occurrence of 2540 default or within seven (7) calendar days of the City’s first knowledge of the Contractor’s default, 2541 whichever occurs first.
2542 10.2 RIGHT TO TERMINATE UPON EVENT OF DEFAULT
2543 Contractor shall be given ten (10) Business Days from written notification by City to cure any default 2544 which, in the City Contract Manager’s sole opinion, creates a potential public health and safety threat. 2545 Contractor shall be given ten (10) Business Days from written notification by City to cure any default 2546 arising under subsections C, F, I, J, and K in Section 10.1 provided, however, that the City shall not be 2547 obligated to provide Contractor with a notice and cure opportunity if the Contractor has committed the 2548 same or similar breach/default within a twenty-four (24) month period. 2549 Contractor shall be given thirty (30) calendar days from written notification by City to cure any other 2550 default (which is not required to be cured within ten (10) Business Days); however, that the City shall not 2551 be obligated to provide Contractor with a notice and cure opportunity if the Contractor has committed 2552 the same or similar breach/default within a twenty-four (24) month period. 2553 10.3 CITY’S REMEDIES IN THE EVENT OF DEFAULT
2554 In the event of Contractor’s default, City maintains following remedies:
2555 A. Waiver of Default. City may waive any event of default or may waive Contractor’s requirement 2556 to cure a default event if City determines that such waiver would be in the best interest of the 2557 City. City’s waiver of an event of default is not a waiver of future events of default that may have 2558 the same or similar conditions.
2559 B. Suspension of Contractor’s Obligation. City may suspend Contractor’s performance of its 2560 obligations if Contractor fails to cure default in the time frame specified in Section 10.2 until such 2561 time the Contractor can provide assurance of performance in accordance with Section 10.8. 2562 C. Liquidated Damages. City may assess Liquidated Damages for Contractor’s failure to meet Packet Page 324
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2563 specific performance standards pursuant to Section 10.6 and Exhibit E. 2564 D. Termination. In the event that Contractor should default and subject to the right of the 2565 Contractor to cure, in the performance of any provisions of this contract, and the default is not 2566 cured for any default within ten (10) calendar days if the default creates a potential public health 2567 and safety threat or arises under Section 10.1.C., E, F, I, J, or K, or otherwise thirty (30) calendar 2568 days after receipt of written notice of default from the City, then the City may, at its option, 2569 terminate this Agreement and/or hold a hearing at its City Council meeting to determine whether 2570 this Agreement should be terminated. In the event City decides to terminate this Agreement, the 2571 City shall serve twenty (20) calendar days written notice of its intention to terminate upon 2572 Contractor. In the event City exercises its right to terminate this Agreement, the City may, at its 2573 option, upon such termination, either directly undertake performance of the services or arrange 2574 with other Persons to perform the services with or without a written agreement. This right of 2575 termination is in addition to any other rights of City upon a failure of Contractor to perform its 2576 obligations under this Agreement.
2577 Contractor shall not be entitled to any further Gross Receipts or other revenues from Collection 2578 operations authorized hereunder from and after the date of termination. 2579 E. Other Available Remedies. City’s election of one (1) or more remedies described herein shall not 2580 limit the City from any and all other remedies at law and in equity including injunctive relief, etc. 2581 10.4 POSSESSION OF RECORDS UPON TERMINATION
2582 In the event of termination for an event of default, the Contractor shall furnish City Contract Manager 2583 with immediate access to all of its business records, including without limitation, proprietary Contractor 2584 computer systems, related to its Customers, Collection routes, and billing of accounts for Collection 2585 services.
2586 10.5 CITY'S REMEDIES CUMULATIVE; SPECIFIC PERFORMANCE 2587 City's rights to terminate the Agreement under Section 10.2 and to take possession of the Contractor's 2588 records under Section 10.4 are not exclusive, and City's termination of the Agreement and/or the 2589 imposition of Liquidated Damages shall not constitute an election of remedies. Instead, these rights shall 2590 be in addition to any and all other legal and equitable rights and remedies which City may have. 2591 By virtue of the nature of this Agreement, the urgency of timely, continuous, and high quality service; the 2592 lead time required to effect alternative service; and, the rights granted by City to the Contractor, the 2593 remedy of damages for a breach hereof by Contractor is inadequate and City shall be entitled to injunctive 2594 relief (including but not limited to specific performance). 2595 10.6 PERFORMANCE STANDARDS AND LIQUIDATED DAMAGES
2596 A. General. The Parties find that as of the time of the execution of this Agreement, it is impractical, 2597 if not impossible, to reasonably ascertain the extent of damages which shall be incurred by City 2598 as a result of a breach by Contractor of its obligations under this Agreement. The factors relating 2599 to the impracticability of ascertaining damages include, but are not limited to, the fact that: (i) 2600 substantial damage results to members of the public who are denied services or denied quality or 2601 reliable service; (ii) such breaches cause inconvenience, anxiety, frustration, and deprivation of Packet Page 325
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2602 the benefits of the Agreement to individual members of the general public for whose benefit this 2603 Agreement exists, in subjective ways and in varying degrees of intensity which are incapable of 2604 measurement in precise monetary terms; (iii) that exclusive services might be available at 2605 substantially lower costs than alternative services and the monetary loss resulting from denial of 2606 services or denial of quality or reliable services is impossible to calculate in precise monetary 2607 terms; and, (iv) the termination of this Agreement for such breaches, and other remedies are, at 2608 best, a means of future correction and not remedies which make the public whole for past 2609 breaches.
2610 B. Service Performance Standards; Liquidated Damages for Failure to Meet Standards. The Parties 2611 further acknowledge that consistent, reliable Collection services are of utmost importance to City 2612 and that City has considered and relied on Contractor's representations as to its quality of service 2613 commitment in awarding the Agreement to it. The Parties recognize that some quantified 2614 standards of performance are necessary and appropriate to ensure consistent and reliable service 2615 and performance. The Parties further recognize that if Contractor fails to achieve the performance 2616 standards, or fails to submit required documents in a timely manner, City and its residents and 2617 businesses will suffer damages, and that it is, and will be, impractical and extremely difficult to 2618 ascertain and determine the exact amount of damages which City will suffer. Therefore, without 2619 prejudice to City’s right to treat such non-performance as an event of default under this Section, 2620 the Parties agree that the Liquidated Damages amounts established in Exhibit E of this Agreement 2621 and the Liquidated Damage amounts therein represent a reasonable estimate of the amount of 2622 such damages considering all of the circumstances existing on the Effective Date of this 2623 Agreement, including the relationship of the sums to the range of harm to City that reasonably 2624 could be anticipated and the anticipation that proof of actual damages would be costly or 2625 impractical.
2626 Contractor agrees to pay (as Liquidated Damages and not as a penalty) the amounts set forth in 2627 the Performance Standards and Liquidated Damages, Exhibit E. 2628 Before assessing Liquidated Damages, City shall give Contractor notice of its intention to do so. 2629 The notice will include a brief description of the incident(s) and non-performance. 2630 If the City determines that Contractor has failed to meet the performance standard established 2631 for any “Service Performance Standard,” the City shall notify Contractor in writing. Liquidated 2632 Damages, if assessed, shall only be assessed for the number of events, days, or other measure in 2633 excess of the acceptable performance level beginning with the first date of Contractor failing to 2634 perform after its receipt of notice from the City. 2635 City may review (and make copies at its own expense) all information in the possession of 2636 Contractor relating to incident(s) and/or non-performance. City or Contractor may, within ten (10) 2637 Business Days after issuing the notice, request a meeting with Contractor. City may present 2638 evidence of non-performance in writing and through testimony of its employees and others 2639 relevant to the incident(s) and non-performance. City Contract Manager will provide Contractor 2640 with a written explanation of their determination on each incident(s) and non-performance prior 2641 to authorizing the assessment of Liquidated Damages under this Section 10.6. The decision of City 2642 Contract Manager shall be final and Contractor shall not be subject to, or required to exhaust, any 2643 further administrative remedies.
2644 C. Reprieve during First Three-Months. The City will not assess Liquidated Damages during the first 2645 three-months of Rate Period One unless the Contractor fails to implement or conduct services or 2646 obligations of this Agreement in a manner consistent with reasonable industry standards.

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2647 D. Amount. City may assess Liquidated Damages for each calendar day or event, as appropriate, 2648 that Contractor is determined to be liable in accordance with this Agreement in the amounts 2649 specified in Exhibit E subject to annual adjustment described below. 2650 E. Timing of Payment. Contractor shall pay any Liquidated Damages assessed by City within ten (10) 2651 Business Days of the date the Liquidated Damages are assessed. If they are not paid within the 2652 ten (10) Business Day period, City may proceed against the performance bond required by the 2653 Agreement, order the termination of the rights or “franchise” granted by this Agreement, or all of 2654 the above.
2655 10.7 EXCUSE FROM PERFORMANCE (“Force Majeure”)
2656 The Parties shall be excused from performing their respective obligations hereunder and from any 2657 obligation to pay Liquidated Damages if they are prevented from so performing by reason of floods, 2658 earthquakes, other acts of nature, war, terrorist activity, civil insurrection, riots, acts of any government 2659 (including judicial action), and other similar catastrophic events which are beyond the control of and not 2660 the fault of the Party claiming excuse from performance hereunder (“Force Majeure event”). In the case 2661 of labor unrest or job action directed at a third party over whom Contractor has no control, the inability 2662 of Contractor to provide services in accordance with this Agreement due to the unwillingness or failure of 2663 the third party to: (i) provide reasonable assurance of the safety of Contractor's employees while 2664 providing such services; or, (ii) make reasonable accommodations with respect to Container placement 2665 and point of Delivery, time of Collection, or other operating circumstances to minimize any confrontation 2666 with pickets or the number of Persons necessary to make Collections shall, to that limited extent, excuse 2667 performance. The foregoing excuse shall be conditioned on Contractor's cooperation in performing 2668 Collection services at different times and in different locations. Further, in the event of labor unrest, 2669 including but not limited to strike, work stoppage or slowdown, sickout, picketing, or other concerted job 2670 action conducted by the Contractor’s employees or directed at the Contractor, or a subsidiary, the 2671 Contractor shall not be excused from performance. In such case, Contractor shall continue to provide a 2672 reasonably satisfactory level of performance during the pendency thereof, but the Contractor shall not be 2673 required to adhere strictly to the specific requirements of this Agreement regarding routes, Collection 2674 times or similar matters; provided, however, that in no event shall more than seven (7) calendar days 2675 elapse between pickups for Residential and Commercial Customers. 2676 The Party claiming excuse from performance shall, within two (2) calendar days after such Party has notice 2677 of such cause, give the other Party notice of the facts constituting such cause and asserting its claim to 2678 excuse under this Section.
2679 If either Party validly exercises its rights under this Section, the Parties hereby waive any claim against 2680 each other for any damages sustained thereby.
2681 The partial or complete interruption or discontinuance of Contractor's services caused by one (1) or more 2682 of the events described in this Article shall not constitute a default by Contractor under this Agreement. 2683 Notwithstanding the foregoing, however, if Contractor is excused from performing its obligations 2684 hereunder for any of the causes listed in this Section for a period of thirty (30) calendar days or more, City 2685 shall nevertheless have the right, in its sole discretion, to terminate this Agreement by giving ten (10) 2686 Business Days’ notice to Contractor, in which case the provisions of Section 10.4 shall apply. 2687 10.8 RIGHT TO DEMAND ASSURANCES OF PERFORMANCE
2688 The Parties acknowledge that it is of the utmost importance to City and the health and safety of all those Packet Page 327
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2689 members of the public residing or doing business within City who will be adversely affected by interrupted 2690 waste management service, that there be no material interruption in services provided under this 2691 Agreement.
2692 If Contractor: (i) is the subject of any labor unrest including work stoppage or slowdown, sick-out, 2693 picketing or other concerted job action; (ii) appears in the reasonable judgment of City to be unable to 2694 regularly pay its bills as they become due; or, (iii) is the subject of a civil or criminal judgment or order 2695 entered by a Federal, State, regional or local agency for violation of an Applicable Law, and City believes 2696 in good faith that Contractor's ability to perform under the Agreement has thereby been placed in 2697 substantial jeopardy, City may, at its sole option and in addition to all other remedies it may have, demand 2698 from Contractor reasonable assurances of timely and proper performance of this Agreement, in such form 2699 and substance as City believes in good faith is reasonably necessary in the circumstances to evidence 2700 continued ability to perform under the Agreement. If Contractor fails or refuses to provide satisfactory 2701 assurances of timely and proper performance in the form and by the date required by City, such failure or 2702 refusal shall be an event of default for purposes of Section 10.1. 2703 ARTICLE 11. REPRESENTATIONS AND WARRANTIES
2704 OF THE PARTIES
2705 The Parties, by acceptance of this Agreement, represent and warrant the conditions presented in this 2706 Article.
2707 11.1 CONTRACTOR’S CORPORATE STATUS
2708 Contractor is a corporation duly organized, validly existing and in good standing under the laws of the 2709 State. It is qualified to transact business in the State and has the power to own its properties and to carry 2710 on its business as now owned and operated and as required by this Agreement. 2711 11.2 CONTRACTOR’S CORPORATE AUTHORIZATION
2712 Contractor has the authority to enter this Agreement and perform its obligations under this Agreement. 2713 The Board of Directors of Contractor (or the shareholders, if necessary) has taken all actions required by 2714 law, its articles of incorporation, its bylaws, or otherwise, to authorize the execution of this Agreement. 2715 The Person signing this Agreement on behalf of Contractor represents and warrants that they have 2716 authority to do so. This Agreement constitutes the legal, valid, and binding obligation of the Contractor. 2717 11.3 AGREEMENT WILL NOT CAUSE BREACH
2718 To the best of Contractor's and City’s knowledge after reasonable investigation, the execution or delivery 2719 of this Agreement or the performance by either Party of their obligations hereunder does not conflict 2720 with, violate, or result in a breach: (i) of any Applicable Law; or, (ii) any term or condition of any judgment, 2721 order, or decree of any court, administrative agency or other governmental authority, or any agreement 2722 or instrument to which Contractor or City is a party or by which Contractor or any of its properties or 2723 assets are bound, or constitutes a default hereunder.

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2724 11.4 NO LITIGATION
2725 To the best of Contractor's and City’s knowledge after reasonable investigation, there is no action, suit, 2726 proceeding or investigation, at law or in equity, before or by any court or governmental authority, 2727 commission, board, agency or instrumentality decided, or pending against either Party wherein an 2728 unfavorable decision, ruling or finding, in any single case or in the aggregate, would:
2729 A. Materially adversely affect the performance by Party of its obligations hereunder; 2730 B. Adversely affect the validity or enforceability of this Agreement; or, 2731 C. Have a material adverse effect on the financial condition of Contractor, or any surety or entity 2732 guaranteeing Contractor's performance under this Agreement. 2733 11.5 NO ADVERSE JUDICIAL DECISIONS
2734 To the best of Contractor’s and City’s knowledge after reasonable investigation, there is no judicial 2735 decision that would prohibit this Agreement or subject this Agreement to legal challenge. 2736 11.6 NO LEGAL PROHIBITION
2737 To the best of each Party’s knowledge, after reasonable investigation, there is no Applicable Law in effect 2738 on the date that Party signed this Agreement that would prohibit the performance of either their 2739 obligations under this Agreement and the transactions contemplated hereby. 2740 11.7 CONTRACTOR’S ABILITY TO PERFORM
2741 Contractor possesses the business, professional, and technical expertise to perform all services, 2742 obligations, and duties as described in and required by this Agreement including all Exhibits thereto. 2743 Contractor possesses the ability to secure equipment, facility, and employee resources required to 2744 perform its obligations under this Agreement.
2745 11.8 Iran Contracting Act Certification
2746 Contractor represents and warrants that it is in compliance with and has completed all requirements 2747 necessary to become certified under the Iran Contracting Act (Public Contract Code Sec. 2200). Proof of 2748 certification shall be included as Exhibit R of this Agreement. 2749 ARTICLE 12. OTHER AGREEMENTS OF THE PARTIES
2750 12.1 RELATIONSHIP OF PARTIES
2751 The Parties intend that Contractor shall perform the services required by this Agreement as an 2752 independent Contractor engaged by City and neither as an officer nor employee of City, nor as a partner 2753 or agent of, or joint venturer with, City. No employee or agent of Contractor shall be, or shall be deemed 2754 to be, an employee or agent of City. Contractor shall have the exclusive control over the manner and 2755 means of performing services under this Agreement, except as expressly provided herein. Contractor shall Packet Page 329
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2756 be solely responsible for the acts and omissions of its officers, employees, Subcontractors, and agents. 2757 Neither Contractor nor its officers, employees, Subcontractors, or agents shall obtain any rights to 2758 retirement benefits, workers' compensation benefits, or any other benefits which accrue to City 2759 employees by virtue of their employment with City. 2760 12.2 COMPLIANCE WITH LAW
2761 Contractor shall at all times, at its sole cost, comply with all Applicable Laws, permits and licenses of the 2762 United States, the State, County of Alameda, and City and with all applicable regulations promulgated by 2763 Federal, State, regional or local administrative and regulatory agencies, now in force and as they may be 2764 enacted, issued or amended during the Term.
2765 12.3 GOVERNING LAW
2766 This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the 2767 State.
2768 12.4 JURISDICTION
2769 Any lawsuits between the Parties arising out of this Agreement shall be brought and concluded in the 2770 courts of Alameda County in the State of California, which shall have exclusive jurisdiction over such 2771 lawsuits. With respect to venue, the Parties agree that this Agreement is made in and will be performed 2772 in Alameda County. Nothing in this Agreement shall be construed to prevent Contractor or City from 2773 seeking judicial review of any dispute arising under this Agreement, except to those matters that are 2774 determined conclusive by the City Council pursuant to Section 5.8. 2775 12.5 BINDING ON SUCCESSORS
2776 The provisions of this Agreement shall inure to the benefit to and be binding on the successors and 2777 permitted assigns of the Parties.
2778 12.6 ASSIGNMENT
2779 Neither Party shall assign its rights nor delegate or otherwise transfer its obligations under this Agreement 2780 to any other Person without the prior written consent of the other Party. Any such assignment made 2781 without the consent of the other Party shall be void and the attempted assignment shall constitute a 2782 material breach of this Agreement.
2783 For purposes of this Section, "assignment" shall include, but not be limited to: (i) a sale, exchange or other 2784 transfer of substantially all of Contractor's assets dedicated to service under this Agreement to a third 2785 party; (ii) a sale, exchange or other transfer of ten (10) percent or more of the outstanding common stock 2786 of Contractor; (iii) any reorganization, consolidation, merger, recapitalization, stock issuance or re2787 issuance, voting trust, pooling agreement, escrow arrangement, liquidation or other transaction to which 2788 Contractor or any of its shareholders is a party which results in a change of ownership or control of thirty 2789 (30) percent or more of the value or voting rights in the stock of Contractor; and, (iv) any combination of 2790 the foregoing (whether or not in related, contemporaneous or sequential transactions) which has the 2791 effect of any such transfer or change of ownership and/or control of Contractor. For purposes of this Packet Page 330
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2792 Section, the term "proposed assignee" shall refer to the proposed transferee(s) or other successor(s) in 2793 interest pursuant to the assignment. Assignment may exclude a change in ownership of Contractor’s 2794 assets or stocks which occurs for interfamilial planning purposes only and does not involve a change in 2795 the management of the Agreement or services performed hereunder. Reorganizations, mergers, 2796 consolidations, sales of equity or assets or similar transactions between or among entities owned by the 2797 same ultimate parent, including but not limited to Contractor and regardless of which entity is the 2798 survivor, do not constitute an assignment; however, Contractor shall provide City with thirty (30) days 2799 written notification of its plans and provide an explanation of any potential impacts related to the 2800 provision of services under this Agreement.
2801 If Contractor requests City’s consideration of and consent to an assignment, City may deny or approve 2802 such request in its sole discretion, the standard for City’s consent to any assignment shall be whether the 2803 Contractor (or, if applicable, a new entity succeeding to the rights, duties and obligations of Contractor 2804 under this Agreement), after the assignment, has sufficient financial and operational capability to 2805 adequately and faithfully render the services called for in this Agreement for the remaining Term of the 2806 Agreement. In no event shall City’s consent be unreasonably withheld, conditioned or delayed. Contractor 2807 shall undertake to pay City its reasonable expenses for attorneys’ fees and investigation costs necessary 2808 to investigate the suitability of any proposed assignee, and to review and finalize any documentation 2809 required as a condition for approving any such assignment. 2810 12.7 NO THIRD PARTY BENEFICIARIES
2811 This Agreement is not intended to, and will not be construed to, create any right on the part of any third 2812 party to bring an action to enforce any of its terms. 2813 12.8 WAIVER
2814 The waiver by either Party of any breach or violation of any provisions of this Agreement shall not be 2815 deemed to be a waiver of any breach or violation of any other provision nor of any subsequent breach of 2816 violation of the same or any other provision. The subsequent acceptance by either Party of any monies 2817 which become due hereunder shall not be deemed to be a waiver of any pre-existing or concurrent breach 2818 or violation by the other Party of any provision of this Agreement. 2819 12.9 NOTICE PROCEDURES
2820 All notices, demands, requests, proposals, approvals, consents, and other communications, which this 2821 Agreement requires, authorizes or contemplates, shall be in writing and shall either be personally 2822 delivered to a representative of the Parties at the address below or deposited in the United States mail, 2823 first class postage prepaid, addressed as follows:
2824 If communications to the City are notices of legal action or request for public information, such 2825 communication shall be directed to:
2826
2827 City Clerk
2828 City of Newark
2829 City Administration Building
2830 37101 Newark Boulevard
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2831 Newark, CA 94560
2832 (510) 578-4000
2833
2834 With a copy to the Administrative Services Director at the address below. 2835
2836 All other communications shall be directed to:
2837 Administrative Services Director
2838 City of Newark
2839 City Administration Building
2840 37101 Newark Boulevard
2841 Newark, CA 94560
2842 (510) 578-4000
2843
2844 If to Contractor:
2845 General Manager
2846 Allied Waste Services of Alameda County
2847 42600 Boyce Road
2848 Fremont, CA 94538
2849 The address to which communications may be delivered may be changed from time to time by a notice 2850 given in accordance with this Section. Notice shall be deemed given on the day it is personally delivered 2851 or, if mailed, three (3) calendar days from the date it is deposited in the mail. 2852 12.10 REPRESENTATIVES OF THE PARTIES
2853 References in this Agreement to the “City” shall mean the City’s elected body and all actions to be taken 2854 by City except as provided below. The City may delegate, in writing, authority to the City Contract Manager 2855 and/or to other City officials and may permit such officials, in turn, to delegate in writing some or all of 2856 such authority to subordinate officers. The Contractor may rely upon actions taken by such delegates if 2857 they are within the scope of the authority properly delegated to them. 2858 The Contractor shall, by the Effective Date, designate in writing a responsible officer who shall serve as 2859 the representative of the Contractor in all matters related to the Agreement and shall inform City in 2860 writing of such designation and of any limitations upon his or her authority to bind the Contractor. City 2861 may rely upon action taken by such designated representative as actions of the Contractor unless they 2862 are outside the scope of the authority delegated to him/her by the Contractor as communicated to City. 2863 ARTICLE 13. MISCELLANEOUS AGREEMENTS
2864 13.1 ENTIRE AGREEMENT
2865 This Agreement is the entire agreement between the Parties with respect to the subject matter hereof 2866 and supersedes all prior and contemporaneous oral and written agreements and discussions. Each Party 2867 has cooperated in the drafting and preparation of this Agreement and this Agreement shall not be 2868 construed against any Party on the basis of drafting. This Agreement may be amended only by an Packet Page 332
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2869 agreement in writing, signed by each of the Parties hereto. 2870 13.2 SECTION HEADINGS
2871 The article headings and section headings in this Agreement are for convenience of reference only and 2872 are not intended to be used in the construction of this Agreement nor to alter or affect any of its 2873 provisions.
2874 13.3 REFERENCES TO LAWS
2875 All references in this Agreement to laws and regulations shall be understood to include such laws as they 2876 may be subsequently amended or recodified, unless otherwise specifically provided herein. 2877 13.4 AMENDMENTS
2878 This Agreement may not be modified or amended in any respect except in writing signed by the Parties. 2879 13.5 SEVERABILITY
2880 If any non-material provision of this Agreement is for any reason deemed to be invalid and unenforceable, 2881 the invalidity or unenforceability of such provision shall not affect any of the remaining provisions of this 2882 Agreement, which shall be enforced as if such invalid or unenforceable provision had not been contained 2883 herein.
2884 13.6 COUNTERPARTS
2885 This Agreement may be executed in counterparts, each of which shall be considered an original. 2886 13.7 EXHIBITS
2887 Each of the Exhibits identified as Exhibit “A” through “R” is attached hereto and incorporated herein and 2888 made a part hereof by this reference. In the event of a conflict between the terms of this Agreement and 2889 the terms of an Exhibit, the terms of this Agreement shall control. 2890
2891
2892
2893
2894
2895
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2901
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2902 IN WITNESS WHEREOF, City and Contractor have executed this Agreement as of the day and year first 2903 above written.
2904
2905
2906
2907 ATTEST:
2908
2909 City CLERK City of Newark ("City")
2910
2911 By By
2912 City Clerk City Manager
2913
2914 Date: __________________________ Date: __________________________ 2915
2916
2917 APPROVED AS TO FORM:
2918
2919
2920
2921 City Attorney
2922
2923 Date: __________________________
2924
2925
2926
2927
2928 APPROVED AS TO FORM: Allied Waste Services of North America, LLC 2929
2930 By:
2931 Contractor Attorney _____________________________ {Printed Name} 2932 ______________________________{Title}
2933
2934 Date: __________________________ Date: __________________________ 2935
2936
2937
2938
2939
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EXHIBIT A

DEFINITIONS
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EXHIBIT A

DEFINITIONS
For purposes of this Agreement, unless a different meaning is clearly required, the following words and phrases shall have the following meanings respectively ascribed to them by this Exhibit and shall be capitalized throughout this Agreement:
“AB 341” means the California Jobs and Recycling Act of 2011 (Chapter 476, Statues of 2011 [Chesbro, AB 341]), also commonly referred to as “AB 341”, as amended, supplemented, superseded, and replaced from time to time.
“AB 939” means the California Integrated Waste Management Act of 1989 (Division 30 of the California Public Resources Code), also commonly referred to as "AB 939," as amended, supplemented, superseded, and replaced from time to time.
“AB 1826” means State of California Assembly Bill No. 1826 approved September 28, 2014. AB 1826 requires each jurisdiction, on and after January 1, 2016, to implement an organic waste recycling program to divert from the landfill organic waste from businesses. Each business meeting specific organic waste or solid waste generation thresholds phased in from April 1, 2016 to January 1, 2020, is required to arrange for organic waste recycling services.
"Affiliate" means all businesses (including corporations, limited and general partnerships and sole proprietorships) which are directly or indirectly related to Contractor by virtue of direct or indirect Ownership interest or common management. They shall be deemed to be "Affiliated with" Contractor and included within the term "Affiliates" as used herein. An Affiliate shall include: (i) a business in which Contractor has a direct or indirect Ownership interest, (ii) a business, which has a direct or indirect Ownership interest in Contractor and/or (iii) a business, which is also Owned, controlled or managed by any business or individual which has a direct or indirect Ownership interest in Contractor. For the purposes of this definition, “Ownership” means ownership as defined in the constructive ownership provisions of Section 318(a) of the Internal Revenue Code of 1986, as in effect on the date here, provided that ten percent (10%) shall be substituted for fifty percent (50%) in Section 318(a)(2)(C) and in Section 318(a)(3)(C) thereof; and Section 318(a)(5)(C) shall be disregarded. For purposes of determining ownership under this paragraph and constructive or indirect ownership under Section 318(a), ownership interest of less than ten percent (10%) shall be disregarded and percentage interests shall be determined on the basis of the percentage of voting interest of value which the ownership interest represents. “Agreement” means this Agreement between City and Contractor, including all exhibits, and any future amendments hereto.
“Alternative Daily Cover” means CalRecycle-approved materials other than soil used as a temporary overlay on an exposed landfill face. Generally, these materials must be processed so that they do not allow gaps in the face surface, which would provide breeding grounds for insects and vermin. “Alternative Intermediate Cover (AIC)” means CalRecycle-approved materials other than soil used at a landfill on all surfaces of the fill where no additional Solid Waste will be deposited within one hundred eighty (180) days. Generally, these materials must be processed so that they do not allow gaps in the face surface, which would provide breeding grounds for insects and vermin. “Applicable Law” means all Federal, State, County, and local laws, regulations, rules, orders, judgments, decrees, permits, approvals, or other requirement of any governmental agency having jurisdiction over Packet Page 338
the Collection, transportation, and Processing of Solid Waste, Source Separated Recyclable Materials, Source Separated Organic Materials, and C&D that are in force on the Effective Date and as may be enacted, issued or amended during the Term of this Agreement. “Approved C&D Processing Facility” means the Newby Island Resource Recovery Park at 1601 Dixon Landing Road, San Jose, CA 95035, which is owned and operated by Republic Services, which may be used for Processing of Source Separated Recyclable C&D.
“Approved Facility(ies)” means any one of or any combination of the: Approved C&D Processing Facility; Approved Transfer Facility; Approved Organic Materials Processing Facility; Approved Recyclable Materials Processing Facility; and/or, Approved Reusable Materials Processing Facility. “Approved Organic Materials Processing Facility” means the Newby Island Resource Recovery Park at 1601 Dixon Landing Road, San Jose, CA, 95035 which is owned by Republic Services, which may be used for Processing of Source Separated Organic Materials generated at Residential Premises. “Approved Processing Facility(ies)” means any one of or any combination of the: Approved C&D Processing Facility, Approved Organic Materials Processing Facility; Approved Recyclable Materials Processing Facility; and/or Approved Reuseable Materials Processing Facility. “Approved Recyclable Materials Processing Facility” means the Newby Island Resource Recovery Park at 1601 Dixon Landing Road, San Jose, CA, 95035 which is owned and operated by Republic Services “Approved Reusable Materials Processing Facility” means the Newby Island Resource Recovery Park, at 1601 Dixon Landing Road, San Jose, CA, 95035 which is owned and operated by Republic Services. “Approved Transfer Facility” means the Fremont Recycling and Transfer Station at 41099 Boyce Road, Fremont, CA, which is owned and operated by the BLT Enterprises of Fremont, LLC. The Approved Transfer Facility shall serve as the transfer and/or Processing Facility for all Solid Waste, Commercial Source Separated Organic Materials, and Residue or Equivalent Residue Collected by Contractor. “Beneficial Reuse” means use of material for beneficial reuse which shall include, but not be limited to, the following: Alternative Daily Cover, Alternative Intermediate Cover, final cover foundation layer, liner operations layer, leachate and landfill gas collection system, construction fill, road base, wet weather operations pads and access roads, and soil amendments for erosion control and landscaping. “Bin” means a Container with capacity of approximately one (1) to seven (7) cubic yards, with a hinged lid, and with wheels (where appropriate), that is serviced by a front end-loading Collection vehicle. "Bulky Item" means discarded appliances (including, but not limited to, refrigerators, freezers, dishwashers, washers and dryers, and hot water heaters), electronic equipment and other small appliances (including, but not limited to, audio equipment, televisions, computers, and microwave ovens), furniture, tires, carpets, mattresses, fencing, cabinetry, household fixtures, tree trunks and similar large items that require special Collection due to their size or nature, but can be Collected without the assistance of special loading equipment (such as forklifts or cranes) and without violating vehicle load limits. It does not include abandoned automobiles, large auto parts, or trees. “Business Days” mean days during which the City offices are open to do business with the public. “C&D” means Construction and Demolition Debris.
“Cart” means a plastic Container with a hinged lid and wheels that is serviced by an automated or semiautomated Collection vehicle. A Cart has capacity of 20, 35, 64 or 96 gallons (or similar volumes). “Change in Law” means any of the following events or conditions that has a material and adverse effect on the performance by the Parties of their respective obligations under this Agreement (except for Packet Page 339
payment obligations):
a. The enactment, adoption, promulgation, issuance, modification, or written change in administrative or judicial interpretation of any Applicable Law on or after the Effective Date; or,
b. The order or judgment of any governmental body, on or after the Effective Date, to the extent such order or judgment is not the result of willful or negligent action, error or omission or lack of reasonable diligence of City or of the Contractor, whichever is asserting the occurrence of a Change in Law; provided, however, that the contesting in good faith or the failure in good faith to contest any such order or judgment shall not constitute or be construed as such a willful or negligent action, error or omission or lack of reasonable diligence. “Characterization” means a process of manually and/or mechanically sorting by material type samples of Source Separated Recyclable Materials, Source Separated Organic Materials, or Source Separate Recyclable Construction and Demolition Debris to determine the types and amounts of various material types in the sample and the Residue Level of the sample. “City” means the City of Newark, a municipal corporation, and all the territory lying within the municipal boundaries of the City as presently existing or as such boundaries may be modified during the Term. “City Contract Manager” means City’s Administrative Services Manager who is responsible for the administrative management of this Agreement.
“Collect or Collection (or any variation thereof)” means the act of collecting Solid Waste, Source Separated Recyclable Materials, Source Separated Organic Materials, C&D, Bulky Items, and other Discarded Material, excluding Excluded Waste, at the place of generation in City. “Commencement Date” means the date specified in Section 2.1 when Collection, transportation, Processing, and Composting services required by this Agreement shall be provided. “Commercial” shall mean of, from or pertaining to non-Residential Premises where business activity is conducted, including, but not limited to, retail sales, services, wholesale operations, manufacturing, and industrial operations, but excluding businesses conducted upon Residential property which are permitted under applicable zoning regulations and are not the primary use of the property. “Compactor” means a mechanical apparatus that compresses materials together with the Container that holds the compressed materials or the Container that holds the compressed materials if it is detached from the mechanical compaction apparatus. Compactors include two (2) to eight (8) cubic yard Bin Compactors serviced by front-end loader Collection vehicles and ten (10) to fifty (50) cubic yard Drop Box Compactors serviced by roll-off Collection vehicles.
“Composting or Compost (or any variation thereof)” includes a controlled biological decomposition of Organic Materials yielding a safe and nuisance free compost product. “Construction and Demolition Debris (C&D)” means building materials resulting from construction, remodeling, repair, cleanup, or demolition operations that are not hazardous as defined in California Code of Regulations, Title 22 section 66261.3 et seq. This term includes, but is not limited to, asphalt, concrete, Portland cement concrete, brick, lumber, gypsum wallboard, cardboard, and other associated packaging, roofing material, ceramic tile, carpeting, plastic pipe and steel. The material may be commingled with rock, soil, tree stumps, and other vegetative matter resulting from land clearing and landscaping for construction or land development projects, excluding Excluded Waste. Loads consistently primarily of soil and/or vegetative matter shall not be considered C&D.

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“Container(s)” mean Bins, Carts, Compactors, and Drop Boxes. “Contractor” means Allied Waste Services of North America, LLC organized and operating under the laws of the State and its officers, directors, employees, agents, companies, related-parties, affiliates, subsidiaries, and Subcontractors.
“Contractor’s Compensation” means the monetary compensation received by Contractor in return for providing services in accordance with this Agreement as described in Article 8. “Contractor’s Proposal” means the proposal submitted to City by Contractor on September 12, 2012 for the Collection of Solid Waste, and Commercial Source Separated Organic Materials and the Collection and Processing of Source Separated Recyclable Materials, Residential Source Separated Organic Materials, and Source Separated Recyclable C&D and certain supplemental written materials, which are included as Exhibit I to this Agreement and are incorporated by reference. “Curb or Curbside (or any variation thereof)” means the location of a Collection Container for pick-up, where such Container is placed on the street or alley against the face of the Curb, or where no Curb exists, the Container is placed not more than five (5) feet from the outside edge of the street or alley nearest the property’s entrance.
“Customer” means the Person whom Contractor submits its billing invoice to and collects payment from for Collection services provided to a Premises. The Customer may be either the Occupant or Owner of the Premises provided that the Owner of the Premises shall be responsible for payment of Collection services if an Occupant of a Premises, which is identified as the Customer of Owner’s Premises, fails to make such payment.
“Customer Type” means the Customer’s sector category including, but not limited to, Single-Family, Multi-Family, Commercial, C&D, Drop Box, and City.
“Designated Waste” means non-Hazardous Waste which may pose special disposal problems because of its potential to contaminate the environment and which may be disposed of only in Class II disposal facilities or Class III disposal facilities pursuant to a variance issued by the California Department of Health Services. Designated Waste consists of those substances classified as Designated Waste by the State, in California Code of Regulations Title 23, Section 2522 as may be amended from time to time. “Discarded Materials” means Solid Waste, Source Separated Recyclable Materials, Source Separated Organic Materials, C&D, and any combination of these material types placed by a Customer or Generator in a receptacle and/or at a location for the purposes of Collection by Contractor, excluding Excluded Waste.
“Disposal or Dispose (or any variation thereof)” means the final disposition of Solid Waste, and possibly Residue or Equivalent Residue at the Approved Transfer Facility. “Divert or Diversion (or any variation thereof)” means to prevent Recyclable Materials and Organic Materials from disposal at landfill or transformation facilities, (including facilities using incineration, pyrolosis, distillation, gasification, or biological conversion methods) through source reduction, reuse, Recycling, and Composting, as provided in Section 41780-41786 of AB 939, as AB 939 may be hereafter amended or superseded. Diversion is a broad concept that is to be inclusive of material handling and Processing changes that may occur over the Term including, but not limited to, changes in standard industry practice or implementation of innovative (but not necessarily fully proven) techniques or technology that reduce disposal risk, decrease costs and/or are for other reasons deemed desirable by the City.
“Drop Box” means an open-top Container with a capacity of ten (10) to fifty (50) cubic yards that is Packet Page 341
serviced by a roll-off Collection vehicle.
“Effective Date” means the date on which the latter of the two Parties signs this Agreement. “Equivalent Residue” means Residue that is produced in the Approved Processing Facility from Processing of Source Separated Recyclable Materials, Source Separated Organic Materials, and Source Separated Recyclable C&D Collected under the terms of this Agreement. Where the actual Residue from Processing materials Collected in the City at the Approved Processing Facility(ies) cannot be specifically segregated from Residue from other parties, an equivalent amount of Residue by Tonnage will be segregated in its place and thereafter handled in accordance with the terms of this Agreement. “Excluded Waste” means Hazardous Substance, Hazardous Waste, Infectious Waste, Designated Waste, volatile, corrosive, biomedical, infectious, biohazardous, and toxic substances or material, waste that Contractor reasonably believes would, as a result of or upon disposal, be a violation of local, State or Federal law, regulation or ordinance, including land use restrictions or conditions, waste that cannot be disposed of in Class III landfills, waste that in Contractor’s reasonable opinion would present a significant risk to human health or the environment, cause a nuisance or otherwise create or expose Contractor or City to potential liability; but not including de minimis volumes or concentrations of waste of a type and amount normally found in Residential Solid Waste after implementation of programs for the safe Collection, Recycling, treatment, and disposal of batteries and paint in compliance with Sections 41500 and 41802 of the California Public Resources Code.
“Exclusive Right” is the right and privilege granted by City to Contractor to be the only Franchisee that Collects, transports, and/or Processes (where permitted under this Agreement) Solid Waste, Source Separated Recyclable Materials, Source Separated Organic Materials, Residue or Equivalent Residue, C&D, and any combination of these material types, and other Discarded Materials, excluding Excluded Waste, in the City.
“E-Waste" means discarded electronic equipment including, but not limited to, televisions, computer monitors, central processing units (CPUs), laptop computers, computer peripherals (including external hard drives, keyboards, scanners, and mice), printers, copiers, facsimile machines, radios, stereos, stereo speakers, VCRs, DVDs, camcorders, microwaves, telephones, cellular telephones, and other electronic devices. Some E-Waste or components thereof may be Hazardous Waste or include Hazardous Substances and thus require special handling, Processing, or disposal. “Federal” means belonging to or pertaining to the Federal government of the United States. “Food Scraps" means those Discarded Materials that are Recyclable Organic Materials. “Franchise Fee” means a payment that the Contractor has voluntarily agreed to pay to City in consideration of the exclusive rights granted by the City under this Agreement. City and Contractor acknowledge and agree that the amount of the Franchise Fee is the result of bona fide, arms-length negotiations between City and Contractor. Contractor further acknowledges and agrees that the amount of the Franchise Fee represents Contractor’s independent determination of the market value of the exclusive rights granted by City under this Agreement. Contractor is not required by this Agreement or any City ordinance, resolution, or regulation to charge the Franchise Fee to Customers. Because the Franchise Fee represents a cost to Contractor in performing services pursuant to this Agreement, Contractor may, in its sole discretion, include an amount equal to the Franchise Fee in Contractor’s Compensation..
“Generator” means any Person whose act or process produces Solid Waste, Source Separated Recyclable Materials, Source Separated Organic Materials, or C&D as defined in the Public Resources Code, or whose act first causes any of these items to become subject to regulation.

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“Gross Receipts” shall mean total cash receipts collected from Customers by the Contractor for the provision of services pursuant to this Agreement, net of cash received through assessment of the Alameda County Benchmark Service Information Fee (described in Section 4.15). Gross Receipts do not include revenues from the sale of Source Separated Recyclable Materials, Source Separated Organic Materials, or Source Separate Recyclable C&D.
“Hazardous Substance” means any of the following: (a) any substances defined, regulated or listed (directly or by reference) as "Hazardous Substances", "hazardous materials", "Hazardous Wastes", "toxic waste", "pollutant" or "toxic substances" or similarly identified as hazardous to human health or the environment, in or pursuant to: (i) the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) of 1980, 42 USC §9601 et seq. (CERCLA); (ii) the Hazardous Materials Transportation Act, 49 USC §1802, et seq.; (iii) the Resource Conservation and Recovery Act, 42 USC §6901 et seq.; (iv) the Clean Water Act, 33 USC §1251 et seq.; (v) California Health and Safety Code §§25115-25117, 25249.8, 25281, and 25316; (vi) the Clean Air Act, 42 USC §7901 et seq.; and, (vii) California Water Code §13050; (b) any amendments, rules or regulations promulgated there under to such enumerated statutes or acts currently existing or hereafter enacted; and, (c) any other hazardous or toxic substance, material, chemical, waste or pollutant identified as hazardous or toxic or regulated under any other Applicable Law currently existing or hereinafter enacted, including, without limitation, friable asbestos, polychlorinated biphenyl’s (PCBs), petroleum, natural gas, and synthetic fuel products, and by-products. “Hazardous Waste” means all substances defined as Hazardous Waste, acutely Hazardous Waste, or extremely Hazardous Waste by the State in Health and Safety Code §25110.02, §25115, and §25117 or in the future amendments to or recodifications of such statutes or identified and listed as Hazardous Waste by the U.S. Environmental Protection Agency (EPA), pursuant to the Federal Resource Conservation and Recovery Act (42 USC §6901 et seq.), all future amendments thereto, and all rules and regulations promulgated thereunder.
“Holidays” are defined as New Year’s Day, Easter Sunday, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, and Christmas Day.
“Household Hazardous Waste” or “HHW” means Hazardous Waste generated at Residential Premises within the City. HHW includes, but is not limited to: paint, stain, varnish, thinner, adhesives, auto products such as old fuel, batteries, household batteries, fluorescent bulbs, tubes, cleaners and sprays, pesticides, fertilizers and other garden products, needles, syringes, and lancets. “Infectious Waste” means biomedical waste generated at hospitals, public or private medical clinics, dental offices, research laboratories, pharmaceutical industries, blood banks, mortuaries, veterinary facilities and other similar establishments that are identified in Health and Safety Code Section 25117.5 as may be amended from time to time.
“Liquidated Damages” means the amounts due by Contractor for failure to meet specific quantifiable standards of performance as described in Section 10.6 and Exhibit E. “Maximum Rate” means the maximum amount, expressed as a dollar unit, approved by the City that the Contractor may bill a Customer for providing services under this Agreement. “Multi-Family” means any Residential Premises, other than a Single-Family Premises, with five (5) or more dwelling units used for Residential purposes (excluding units used for temporary residential purposes such as hotels) that receive centralized Collection service for all units on the Premises which are billed to one (1) Customer at one (1) address.
“Occupant” means the Person who occupies a Premises.

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“Organic Materials” means Yard Waste and Food Scraps. No Discarded Material shall be considered to be Organic Materials, however, unless it is separated from Solid Waste, Recyclable Material, and C&D. “Overage” means Solid Waste, Source Separated Recyclable Materials, Source Separated Organic Material, set out for Collection either on top of or outside of a Container or in any manner that prevents the Container lid from completely closing or potentially cause materials to spill during Collection by Contractor’s vehicles.
“Owner” means the Person(s) holding legal title to real property and/or any improvements thereon, and shall include the Person(s) listed on the latest equalized assessment roll of the County Assessor. “Party or Parties” refers to the City and Contractor, individually or together. “Person(s)” means any individual, firm, association, organization, partnership, corporation, trust, joint venture, or public entity.
“Personal Recycling Bin” or “PRB” refers to a small easily portable Container with a capacity of at least three (3) gallons to be included by Contractor in the Multi-Family Move-in kit to facilitate convenient accumulation of Source Separated Recyclable Materials within a Multi-Family dwelling unit. “Premises” means any land or building in the City where Solid Waste, Recyclable Materials, Organic Materials, or C&D are generated or accumulated.
“Processing” means to prepare, treat, or convert through some special method, including, but not limited to, baling, crushing, shredding, chipping, grinding, extracting, mechanical or hand classification and any other method of handling Source Separated Recyclable Materials, Source Separated Organic Material, and Source Separated Recyclable C&D by the Contractor at the Approved Facility(ies). “Processing Facility” means any plant or site used for the purpose of sorting, cleansing, treating or reconstituting Source Separated Recyclable Materials, Source Separated Organic Materials, or Source Separated Recyclable C&D for the purpose of making such material available for Recycling or reuse or the facility for the Processing and/or Composting of Organic Materials. “Prohibited Container Contaminants” means any of the following:
a. Non-Organic Materials placed in the Organics Container, including but not limited to textiles and carpets, manure, biosolids, digestate, sludges, non-compostable paper, Construction & Demolition Debris, and Hazardous Waste;
b. Organic Materials placed in the Garbage Container that is specifically identified under the Agreement for collection in the Organics Container or Recycling Container; c. Organic Materials placed in the Recycling Container that is specifically identified under the Agreement for collection in the Organics Container. Paper products and printing and writing paper may be considered acceptable and not considered Prohibited Container Contaminants if they are placed in the Recycling Container. “Rate” means the amount, expressed as a dollar unit, that the Contractor bills a Customer for providing services under this Agreement. Contractor may, in its sole discretion, charge any amount up to and including the Maximum Rate approved by the City, but in no case exceeding the Maximum Rate. “Rate Period” means a twelve (12) month period, commencing January 1 and concluding December 31, with the exceptions that Rate Period One shall be a nineteen (19) month period, commencing June 1, 2013 and concluding December 31, 2014 and Rate Period Ten shall be a five (5) month period, commencing January 1, 2023 and concluding May 31, 2023.

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“Recyclable Materials” means materials having a potential for reuse or reprocessing or other materials having value.
“Recyclable Rich Materials” are a type of material that are comprised primarily of Recyclable Materials, Recyclable C&D, and Organic Materials such that loads are composed of less than thirty (30) percent Residue but more than ten (10) percent Residue by weight. “Recycle (or Recycling or variation thereof)” means the process of sorting, cleansing, treating, and reconstituting at a Processing Facility materials that would otherwise be disposed of at a landfill for the purpose of returning such materials to the economy in the form of raw materials for new, reused, or reconstituted products.
“Residential” shall mean of, from, or pertaining to a Single-Family Premises or Multi-Family Premises including Single-Family homes, apartments, condominiums, townhouse complexes, mobile home parks, cooperative apartments, and yacht harbors and marinas where residents live aboard boats. “Residue (or Residual or a variation thereof)” means materials remaining after delivery to and Processing at the Approved Processing Facility(ies), if any, thereof that require disposal rather than Recycling due to either the lack of markets for materials or the inability of the Approved Processing Facility(ies) to capture and recover the materials. Residue does not include Source Separated Recyclable Materials, Source Separated Recyclable C&D and/or Residential Source Separated Organic Materials recovered at the Approved Processing Facility(ies).
“Residue Level” means the percentage of Residue, which shall be calculated as the Tonnage of Processing Residue requiring disposal divided by the total Tonnage of Materials Collected. “Reusable Materials” means items that are capable of being used again with no or minimal Processing. “Route Review” means a visual inspection of Containers along a Hauler Route for the purpose of identifying Prohibited Container Contaminants, which may include mechanical inspection methods such as use of cameras; as well as maintaining applicable documentation and reporting of inspections and results.
“SB 1383 Regulations” means the Short-lived Climate Pollutants (SLCP): Organic Waste Reductions regulations adopted by the California Department of Resources Recycling and Recovery (“CalRecycle”) in 2020. “Senior” means a Person sixty-five years of age or older. “Service Level” refers to the size of a Customer’s Container and the frequency of Collection service. “Sharps” means home-generated sharps waste such as hypodermic needles, pen needles, intravenous needles, lancets, and other devices that are used to penetrate the skin for the delivery of medications derived generated by Residential households.
“Single-Family” means, notwithstanding any contrary definition in City Code, any detached or attached house or residence designed or used for occupancy by one (1) family, provided that Collection service feasibly can be provided to such Premises as an independent unit, and the Owner or Occupant of such independent unit is billed directly for the Collection service. Single-Family includes Residential units of a duplex, tri-plex, or four-plex Residential structure provided that each unit is separately billed for their specific service level.
“Solid Waste” means solid waste as defined in California Public Resources Code, Division 30, Part 1, Chapter 2, §40191 and regulations promulgated thereunder as may be amended from time to time, and either Residue or Equivalent Residue from Recycling, Processing, and similar processes. Excluded from the definition of Solid Waste are Source Separated Recyclable Materials, Source Separated Organic Packet Page 345
Material, Source Separated Recyclable C&D, and Excluded Waste, in addition to those items specifically excluded under California Public Resources Code, Division 30, Part 1, Chapter 2, §40191 and regulations promulgated thereunder as may be amended from time to time. Notwithstanding any provision to the contrary, Solid Waste may include de minimis volumes or concentrations of waste of a type and amount normally found in Residential Solid Waste after implementation of programs for the safe Collection, Recycling, treatment, and disposal of Household Hazardous Waste in compliance with Section 41500 and 41802 of the California Public Resources Code as may be amended from time to time. “Source Separated Organic Materials” are a type of Yard Waste or other Recyclable, Organic Materials that are commingled and/or presorted and that are segregated prior to Collection from other materials Collected as Solid Waste, other types of Source Separated Recyclable Materials, or C&D; are designated by the Customer or Generator for purposes of Diversion; are Delivered separately to the Approved Transfer Facility (if the Customer or Generator is Commercial) or to the Approved Processing Facility(ies) or Processing Facility(ies) (if the Customer or Generator is Residential) from other materials; and are delivered in loads composed of less ten (10) percent Residue by weight. The types of Source Separated Organic Material may change over time. To the extent the Source Separated Organic Materials are delivered in loads composed of greater than or equal to ten (10) percent Residue by weight, the loads are to be handled in accordance with the Protocol for Management of Residue set forth in Exhibit Q to this Agreement.
“Source Separated Recyclable C&D” are presorted C&D Recyclable Materials that are segregated prior to Collection from other materials Collected as Solid Waste or Source Separated Yard Waste; are designated by the Generator or Customer for purposes of Diversion; are Delivered separately to an Approved Processing Facility(ies) from other materials; and are delivered in loads composed of less ten (10) percent Residue by weight. The types of Source Separated Recyclable C&D may change over time. To the extent the Source Separated Recyclable C&D are delivered in loads composed of greater than or equal to ten (10) percent Residue by weight, the loads are to be handled in accordance with the Protocol for Management of Residue set forth in Exhibit Q to this Agreement.
“Source Separated Recyclable Materials” are a type of Recyclable Material that are commingled and/or presorted Recyclable Materials including high grade paper, glass, metal, plastic, aluminum, newspaper, corrugated paper or other Recyclable Materials that are segregated prior to Collection from other materials collected as Solid Waste, Organic Materials, or C&D; are designated by the Customer or Generator for the purposes of Diversion; are delivered separately to an Approved Facility from other materials; and are delivered in loads composed of less than ten (10) percent Residue by weight. The types of Source Separated Recyclable Materials may change over time. To the extent the Source Separated Recyclable Materials are delivered in loads composed of greater than or equal to ten (10) percent Residue by weight, the loads are to be handled in accordance with the Protocol for Management of Residue set forth in Exhibit Q to this Agreement.
“State” means the State of California.
“Subcontractor” means a Party who has entered into a contract, express or implied, with the Contractor for the performance of an act that is necessary for the Contractor’s fulfillment of its obligations for providing service under this Agreement. Vendors providing materials and supplies to Contractor shall not be considered Subcontractors.
“Term” means the Term of this Agreement, including extension periods if granted, as provided for in Article 2.
“Ton” or “Tonnage” means a unit of measure for weight equivalent to two thousand (2,000) standard pounds where each pound contains sixteen (16) ounces.

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“Used Motor Oil and Filter” means motor oil and the subsequent oil filter that has been used in a vehicle. “Used Oil Recovery Kit” means a kit containing: one (1) reusable plastic jug of at least one (1) gallon capacity with a watertight screw-on top to contain Used Motor Oil; one (1) plastic disposable resealable bag of sufficient capacity to accommodate one (1) Used Motor Oil Filter; and, a flyer, brochure, or other informational media approved by the City intended to educate Customers about the Used Motor Oil and Filter Collection program and the benefits resulting from the proper handling of Used Motor Oil and Filters. The Used Oil Recovery Kit is to be provided to Customers by Contractor to recover Used Motor Oil and Filters from Single-Family and Multi-Family residents. “Yard Waste” means those Discarded Materials that will decompose and/or putrefy, including, but not limited to, green trimmings, grass, weeds, leaves, prunings, branches, dead plants, brush, tree trimmings, dead trees, small pieces of unpainted and untreated wood, and other types of organic waste. Yard Waste is a subset of Organic Materials. Yard Waste placed for Collection may not exceed six (6) inches in diameter and three (3) feet in length and must fit within the Contractor-provided Container.

For purposes of this Agreement, the following terms (whether or not capitalized) shall have the meanings given to them in the SB 1383 Regulations, unless the context indicates a different meaning was intended:
biosolids, digestate, food, non-compostable paper, paper products, printing and writing paper, sludges.

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EXHIBIT B

PUBLIC EDUCATION AND OUTREACH PLAN
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City of Newark/Allied Waste
June 1, 2023 B-1 Franchise Agreement, Exhibit B

EXHIBIT B

PUBLIC EDUCATION & OUTREACH PLAN
Contractor understands and recognizes the importance of effective public education and promotion as the key to helping residents and businesses understand more about source reduction, reuse, Recycling, and Composting. Contractor shall include, at a minimum, the following services as part of its public education program. All public education materials shall be approved by the City prior to distribution to Customers, publication, or issuance.

1. STAFFING PLAN AND STAFF ROLES
To best achieve the highest possible level of public education and awareness, Contractor shall designate a Public Education Manager to supervise, coordinate and implement all public education and outreach activities in the City. The Public Education Manager (Recycling Manager) shall be assigned to support the City for a minimum of 10 hours per week. The Public Education Manager shall perform the following tasks in his/her four principal areas of responsibility:

A. Government and Community Relations

1. Serve as a liaison between the City and Contractor

2. Represent Contractor at City Council, City staff, and City strategy development meetings

3. Work with the City in partnership to develop and incorporate municipal activities into Contractor activities, and vice versa

4. Participate and represent Contractor in community activities

5. Oversee customer satisfaction of all program services

6. Ensure compliance with City and regulatory agencies

7. Support local community service organizations
B. Media Relations

1. Develop relationships with television, radio, and newspapers reports

2. Track media coverage
C. Contract Compliance

1. Coordinate and produce annual education plan required by Section 4.9 of the Agreement

2. Coordinate implementation of the annual public education plan The Public Education Manager will be assisted in the public education and outreach efforts by 1 full-time recycling coordinator assigned to the City for a minimum of 40 hours per week in total.

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City of Newark/Allied Waste
June 1, 2023 B-2 Franchise Agreement, Exhibit B

2. SINGLE-FAMILY EDUCATION PROGRAMS
A. Public Education Activities

1. Prepare a “how-to” flyer describing how to prepare Source Separated Recyclable and Source Separated Organic Materials for Collection and describe the acceptable materials that can be included in the Recyclable and Organic Materials Containers.

The flyer should emphasize any new Recyclable Materials to be included in SingleStream Collection and the Food Scraps Collection program.

2. Prepare a “how-to” flyer describing the proper set out procedures for Collection Containers.

3. Prepare an instructional packet identifying key transition dates and verifying the Customer’s specific current service level.

4. Prepare and distribute public service announcements (PSA) for local newspapers.

5. Visit homeowner associations or other groups to promote and explain the program, as requested by the associations or as scheduled by the City.

6. Prepare and distribute quarterly newsletters that creatively inform residents about topics such as availability of free on-call curbside Bulky Item/clean-up events, Bulky Item pick-ups, home Composting, proper handling of Household Hazardous Waste, EWaste, and U-Waste, and environmental conservation.

7. Prepare and distribute annually a bill insert, brochure, and/or feature quarterly newsletter article describing how to prepare Source Separated Recyclable and Source Separated Organic Materials for Collection. Contractor shall inform residents as to the acceptable materials that can be included in the Recyclable Materials and Organic Materials Containers and any common contaminants to be excluded from Collection to customers.

8. Prepare Correct Action Notices (Oops Tags) for drivers to use in the event of set-out problems. Tags shall be tailored to residential generator types, and may be used as a courtesy notice, or a notice of non-Collection. When used as a courtesy notice, the materials in question shall be Collected, but Customers are informed of the improper element of the set-out and advised of how to ensure proper set-out in the future.

When used as a non-Collection notice, the Container in question is not Collected, and the tag shall advise Customer of the specific problem.

9. Two weeks prior to Christmas tree Collection events provide written notification to each Single-Family Customer specifying event details and tree Collection schedule as provided by Section 4.1.C of this Agreement.

10. On each bill, Contractor shall include a brief statement to Customers providing service-related announcements such as messages about new services, the on-call clean-up and Bulky Item pick-up services, proper handling of Household Hazardous Waste, Food Scraps Collection, Christmas tree Collection, etc.

11. Prepare and make available through Contractor’s website “how-to” information on Recycling, Composting, and proper Container set-outs in Adobe Acrobat PDF and provide Single-Family Customers with links for additional resources.

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City of Newark/Allied Waste
June 1, 2023 B-3 Franchise Agreement, Exhibit B

12. Enable Single-Family Customers to access information regarding Collection days by address, as well as other Customer- or City-specific information, through its website including access to Adobe Acrobat PDF copies of newsletters and other outreach materials required herein.

3. MULTI-FAMILY EDUCATION PROGRAMS
A. Public Education Activities

1. Prepare a “how-to” flyer describing how to prepare Source Separated Recyclable and Source Separated Organic Materials for Collection and describe the acceptable materials that can be included in the Recyclable and Organic Materials Containers.

The flyer should emphasize the State and County mandatory Recycling requirements and how to comply as well as identify any new Recyclable Materials to be included in Single-Stream Collection.

2. Prepare a “how-to” flyer describing the Recyclables Collection program for distribution to tenants and distribute to Multi-Family property managers for distribution to tenants.

3. Prepare posters describing Collection programs and distribute to Multi-Family property managers for on-site use.

4. Prepare an instructional packet identifying key transition dates and verifying the Customer’s specific current service level.

5. Visit apartment managers or home owners’ association meetings or other groups to promote and explain the Contractor’s Collection programs and the State and County mandatory Recycling requirements throughout the Term of the Agreement, as requested by the associations or as scheduled by the City.

6. Prepare annual public education material on Recycling, the State and County mandatory Recycling requirements and how to comply, and proper handling of Household Hazardous Waste, E-Waste, and U-Waste and distribute (or arrange for distribution of) materials directly to tenants of Multi-family Premises.

7. Conduct site visits and provide technical assistance as specified in Section 4.10 of this Agreement.

8. Offer and respond to requests for on-site meetings and workshops. Contractor will conduct workshops (when requested) that will show property managers and residents, in a hands-on interactive format, how to use the Recycling and Organics program and will provide resources for additional information and support.

9. Prepare and distribute “move-in” kits for property managers and owners of MultiFamily complexes to provide new tenants. Move-in kits shall provide Recycling information and Contractor’s Customer service phone number where questions can be answered.

10. Prepare and distribute at least two bill inserts annually for Multi-Family Owners and Property Managers that are each focused on a key subject (e.g. Recycling procedures, State and County mandatory Recycling requirements, Recycling technical assistance, on-call Bulky Item collection, etc.).

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City of Newark/Allied Waste
June 1, 2023 B-4 Franchise Agreement, Exhibit B

11. Two weeks prior to Christmas tree Collection event, provide written notification to each Multi-Family Customer specifying event details and schedule as provided by Section 4.2.C of this Agreement.

12. On each bill, include a brief statement to Customers providing service-related announcements such as messages about new services, State and County mandatory Recycling requirements, the on-call Bulky Item pick-up services, proper handling of Household Hazardous Waste, Christmas tree Collection, etc.

13. As part of Contractor’s website, provide tenants and property managers with access to a dedicated multi-family page which will present “how-to” information in Adobe Acrobat PDF and for tenants and property managers as well as links to other resources.

14. Prepare Correct Action Notices (Oops Tags) for drivers to use in the event of set-out problems. Tags shall be tailored to residential generator types, and may be used as a courtesy notice, or a notice of non-Collection. When used as a courtesy notice, the materials in question shall be Collected, but Customers are informed of the improper element of the set-out and advised of how to ensure proper set-out in the future.

When used as a non-Collection notice, the Container in question is not Collected, and the tag shall advise Customer of the specific problem.

15. Implement a Recycling plan that supports and educates both the State and County requirements for Multi-Family Customers. This Recycling plan shall include updating Contractor’s website and print materials with information pertaining to all mandatory requirements. Distribute outreach materials describing mandatory Recycling requirements of AB 341 and Alameda County Waste Management Authority Mandatory Commercial Recycling Ordinance.

16. At least semi-annually, prepare and distribute notices to Customers that are not compliant with mandatory requirements of AB 341, AB 1826, SB 1383 and Alameda County Waste Management Authority Organics Reduction & Recycling Ordinance (ORRO), which identify why the Customer is not compliant and what actions Customer can take to be compliant.

17. Multi-family/Commercial Food Scraps program: conduct the following activities, at a minimum:
• Provide a starter kit to educate property managers on the Food Scraps Collection program;
• Conduct site visits to all Multi-Family premises to encourage participation in the program and customize the program to fit the Customer’s needs; and, • Produce and distribute periodically, but at Contractor’s discretion not more than quarterly, newsletters or bill inserts that inform customers about the Multi-Family/Commercial Food Scrap Collection program.

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City of Newark/Allied Waste
June 1, 2023 B-5 Franchise Agreement, Exhibit B

4. COMMERCIAL EDUCATION PROGRAMS
A. Public Education Activities

1. Prepare and distribute a flyer and/or “how-to” brochure to businesses explaining the Recycling services provided to each general business type (restaurants, office/commercial buildings, strip malls, and large commercial businesses). The brochure should emphasize the State and County mandatory Recycling requirements and how to comply.

2. Prepare and distribute a flyer and/or “how-to” brochure describing the Source Separated Organic Materials Collection services available to each business type and how to prepare Organic Materials for Collection.

3. Meet with up to four (4) business associations (Chamber of Commerce, Rotary Club, etc.) in separate venues to educate businesses on the Recycling and Organics Collection programs, the State and County mandatory Recycling requirements, answer questions, and provide service and Rate information.

4. Prepare an instructional packet identifying key transition dates and verifying Customer’s specific current service level.

5. Prepare and distribute a quarterly newsletter to all Commercial Customers promoting and explaining Source Separated Recyclable Materials and Source Separated Organic Materials Collection programs and the State and County mandatory Recycling requirements. The newsletter shall be distributed to Commercial Customers at the same time bills are issued.

6. Prepare brochures, flyers, and articles for the quarterly newsletter related to nonfranchise-related programs such as source reduction, reuse and non-Contractor Recyclable Materials programs (e.g., the State and County mandatory Recycling requirements, green business recognition, Hazardous Waste management, buyrecycled policies, etc.). These materials shall be available upon request, and articles shall be published annually in the quarterly newsletter.

7. Conduct site visits and provide technical assistance as specified in Section 4.10 of this Agreement.

8. Commercial Food Scraps program: conduct the following activities, at a minimum:
• Provide a starter kit to educate businesses on the Commercial Food Scraps Collection program;
• Conduct site visits to all schools, institutions, restaurants, bakeries, grocery stores, and other food scrap generators in the City to encourage participation in the program and customize the program to fit the Customer’s needs; • Place Food Scraps presentation posters in highly trafficked areas in the City; and,
• Produce and distribute periodically, but at Contractor’s discretion not more than quarterly, newsletters or bill inserts that inform customers about the Commercial Food Scrap Collection program.

9. Attend business associations’ meetings to promote and explain the Collection programs and the State and County mandatory Recycling requirements throughout Packet Page 354
City of Newark/Allied Waste
June 1, 2023 B-6 Franchise Agreement, Exhibit B
the Term of the Agreement, as requested by the associations or as scheduled by the City.

10. Provide employee training to businesses that participate in Source Separated Recyclable Materials and/or Source Separated Organic Materials Collection programs, annually upon the Customer’s request.

11. Prepare Correct Action Notices (Oops Tags) for drivers to use in the event of set-out problems. Tags shall be tailored to Commercial generator types, and may be used as a courtesy notice, or a notice of non-Collection. When used as a courtesy notice, the materials in question shall be Collected, but Customers are informed of the improper element of the set-out and advised of how to ensure proper set-out in the future.

When used as a non-Collection notice, the Container in question is not Collected, and the tag shall advise Customer of the specific problem.

12. On each bill, Contractor shall include a brief statement to Customers providing service-related announcements such as messages about new services, Source Separated Recyclables and Source Separated Organics Collection services, the State and County mandatory Recycling requirements, proper handling of Hazardous Waste, etc.

13. Prepare and make available through Contractor’s website “how-to” information for Commercial Generators on Recycling, Composting, and disposal in Adobe Acrobat PDF.

14. Implement a Recycling plan that supports and educates both the State and County requirements for Commercial Customers. This Recycling plan shall include updating Contractor’s website and print materials with information pertaining to all mandatory requirements. Distribute outreach materials describing mandatory Recycling requirements of AB 341, AB 1826, SB 1383 and Alameda County Waste Management Authority Organics Reduction & Recycling Ordinance (ORRO).

15. At least semi-annually, prepare and distribute notices to Customers that are not compliant with mandatory Recycling requirements of AB 341 and Alameda County Waste Management Authority Mandatory Commercial Recycling Ordinance, which identify why the Customer is not compliant and what actions Customer can take to be compliant.

16. Contractor shall reach out to various community organizations such as the Chamber of Commerce, Rotary, business associations and other appropriate groups to provide detailed Recycling outreach education and offer tools and support for successful programs.

5. SCHOOL OUTREACH
Contractor shall develop and implement a public school education curriculum to teach children how to Recycle and Compost at school and at home. At a minimum, the program shall include the following:

A. Contractor shall work with Grades of Green to introduce green measures to the Newark Unified School District. The web-based program covers all aspects of environmental stewardship including trash, electricity, water, paper, chemical, and emissions reductions, as well as empowering kids to utilize what they have learned in their school communities about environmental sustainability to Packet Page 355
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June 1, 2023 B-7 Franchise Agreement, Exhibit B
make a global impact. Contractor will work closely with Grades of Green to develop environmental education for delivery to students, staff, and community members in the City. Contractor will utilize Grades of Green to showcase school accomplishments and help develop and/or refine the curriculum and activities.

B. Contractor shall communicate the availability of its educational resources to each school’s administrators through a variety of media prior to the opening of school each fall, and its Recycling coordinator will follow up and respond to school/teacher requests for educational materials, resources, and presentations throughout the year.

C. Contractor shall meet with administrators, faculty, facilities personnel, and parents (through PTA meetings and other means) initially and as needed to establish and provide training on internal materials capture systems. Contractor shall provide educational curriculum and program how-to information in a fun format—such as through story-telling, Recycling relays, competitions, waste audits, and via video. Educational curriculum, activities, and presentations are geared toward grade level/age group.

D. Contractor shall work with all schools within the District to identify a Recycling champion within each school who will act as the school’s Recycling coordinator to monitor faculty, staff, and administrators for optimal, proper Recycling program participation, know of and utilize educational resources provided by Contractor and other sources, and communicate Recycling program results to students.

E. Contractor shall establish a District Recycling committee that shall be comprised of the identified recycling champions named in Item C, above, and headed by a District administrator and Contractor’s Recycling Coordinator. The Recycling committee would meet according to need and District preference until Recycling programs are functional in all schools.

F. All educational materials will be provided in the primary languages represented in the student body of the District overall. Contractor shall, at a minimum, provide the educational components enumerated throughout this section.

G. Contract shall conduct a minimum of thirteen (13) presentations to schools in the City or provide onsite tours for classes from schools in the City to promote Recycling and Composting and provide age appropriate materials pertaining to Recycling and Composting.

6. SPECIAL EVENTS
A. Arrange for and staff a booth or table at City events to promote source reduction, reuse, Recycling, Composting, and proper handling of E-Waste, U-Waste, and Hazardous Waste and answer questions about Collection services. Contractor will develop a stand-alone and table-top professional display for use at the City events and will provide corresponding educational components that can be used to educate Customers and the general public about Recycling in general, and Newark Source Separated Recycling and Source Separated Organics programs. At a minimum, Contractor shall provide this outreach service at up to four (4) events annually to be determined with input from the City.

B. Educate any event sponsor or venue organizer on the requirements of AB 2176 for large events and venues, which are required to comply with AB 2176, and assist the sponsor or organizer in preparation of a recycling plan, which shall include all information required by AB 2176.

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June 1, 2023 B-8 Franchise Agreement, Exhibit B

7. ALL SECTORS
A. Produce press releases and advertisements tied to specific community events at intervals determined by the City. Press releases shall be developed and reviewed by the City regarding new or enhanced services as needed. Advertisements shall be developed in conjunction with workshops, training programs, etc.

B. Conduct educational tours of the Approved Recyclables Processing Facility to familiarize residents, businesses, and school children with the facility’s activities.

C. Provide public education materials that address the multi-lingual diversity of the City through use of visual images and/or other techniques. At a minimum, all materials shall be available in English and Spanish.

D. Attend community workshops as requested by City to explain Collection services and respond to questions from the community.

E. Develop and maintain a website describing services provided in the City as required by Section

4.12.1.C of the Agreement. Contractor’s website shall enable Customers to view their Collection schedule by typing in the service address; securely pay their bill online; and identify who to contact with service requests (such as Drop Box orders and Curbside Bulky Item pick-up scheduling). The website shall also include a “Kids’ Place” section featuring activities designed for children to learn more about the environment and Recycling through the use of puzzles, games, and word searches.

F. Contractor shall provide the following to all its customers under the Agreement annually:
• Information on the customer’s requirements to properly separate materials in appropriate Containers.
• Information on methods for: the prevention of Organic Materials generation, recycling Organic Materials on-site, sending Organic Materials to community composting, and any other local requirements regarding Organic Materials.
• Information regarding the methane reduction benefits of reducing the landfill disposal of Organic Materials, and the methods of Organic Materials recovery contemplated by the Agreement.
• Information regarding how to recover Organic Materials. • Information related to the public health and safety and environmental impacts associated with the landfill disposal of Organic Materials.
• The above information will be provided, at a minimum, through print and/or electronic media, and may also be provided through workshops, meetings and/or on-site visits. All information that SB 1383 requires the City to distribute shall be posted on Contractor’s website.
• Contractor shall provide an educational webpage which includes downloadable copies of all the materials described in this Section.
• Contractor shall provide educational materials to customers discovered to be out of compliance with the requirements of the SB 1383 Regulations, and shall report a list of such customers as well as actions taken to the City on a periodic basis as required by City. • The information and materials described in this Section shall be provided in English, Spanish, Mandarin, and Vietnamese.

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June 1, 2023 B-9 Franchise Agreement, Exhibit B

8. EDUCATION FOR PUBLIC EVENTS
Contractor shall partner with the City to develop and launch a sustainability-themed outreach schedule for public events. The program would involve creating a family of “green” Recycling-specific educational hand-outs, and a common, customizable booth design that could be used at Newark Days, Music on the Grove and other local street fairs, art festivals and concerts to highlight local environmental initiatives.

Contractor shall set-up and staff the booth at a minimum of four (4) events each year. Contractor will work with City staff on publicity to increase awareness and foot traffic. Contractor shall not only provide service and assistance to all of the community events named in Exhibit F and more, it will also work with event planners to bring additional value. This would include upfront planning for logistics detail, such as placement of Containers, providing a full contingent of Containers at each Collection point with clear messaging to encourage Recycling participation, clean up services, sponsorships, and educational materials.

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EXHIBIT C

REPORTING REQUIREMENTS
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June 1, 2023 C-1 Franchise Agreement, Exhibit C

EXHIBIT C

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

1. Determine and set Maximum Rates and evaluate the financial efficacy of operations.

2. Evaluate past and expected progress towards achieving the City’s seventy-five percent (75%) Diversion goals and objectives.

3. Provide concise and comprehensive program information and metrics for use in fulfilling reporting requirements under AB 939 and AB 341 and Alameda County Waste Management Authority Mandatory Commercial Recycling Ordinance.

4. Provide program information in a format compatible with Alameda County Waste Management Authority franchise reporting recommendations.

5. Determine needs for adjustment to programs.

6. Evaluate Customer service and complaints.

7. Tracking C&D Collection and Diversion activities and allocating C&D Collection and Processing costs and separately reporting Gross Receipts from C&D services.

At City’s request, Contractor shall use standardized reporting forms provided by City or Alameda County Waste Management Authority (StopWaste).

Monthly Report Content
The monthly tonnage reports shall be presented by Contractor to show the following information for each month. In addition, each monthly report shall show the monthly data for the past twelve (12) months.

1. Tonnage Report
• Tonnage delivered to each Approved Facility by Customer and Material Type, subtotaling and clearly identifying those Tons that are disposed and those that are Diverted. • Total Units of Used Oil, Used Oil Filters, E-Waste, U-Waste, and Bulky Items Collected by Customer Type and Units Recycled and disposed.
• Tonnage of Recyclable Materials Marketed (by commodity and including average commodity value for each) and Processing Residue Tonnage disposed. • Tonnage of Source Separated Organic Materials Marketed and Processing Residue Tonnage disposed.

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• Tonnage of Source Separated Recyclable C&D Marketed and Processing Residue Tonnage disposed.
• Contamination and Residue Levels (At Contractor’s option, Contractor may provide contamination and Residue Levels on a quarterly basis) and the date of the most-recently completed Characterizations.

2. Mandatory Recycling and Organics Recycling Compliance Report Listing of Multi-Family and Commercial Customers that are not in compliance with the mandatory requirements of AB 341, AB 1826, SB 1383 and/or Alameda County Waste Management Authority Organics Reduction & Recycling Ordinance (ORRO). Such list shall include, at a minimum, Customer name, service location address, Solid Waste, Recycling, and Organics Service Level information, contact name, address, and phone number, and the date(s) Contractor provided a notice of non-compliance, actions taken to educate the Customer and the type of violation (including not providing Containers for customer use, and other compliance violations).

Quarterly Report Content
Quarterly reports shall be presented by Contractor to showing the monthly information requested above plus the following information for each quarter.

1. Customer Report
• Number of Customers by Customer Type.
• Number of Containers at each Service Level by Customer Type and program summarizing the type of material Collected, total gallons of Cart service, cubic yards of Bin service, and pulls and cubic yards or Tons of Drop Box and Compactor service by Customer Type. Report should calculate the average volume of service received per: Single-Family Customer; Multi-Family dwelling unit; Commercial Customer; and, C&D Customer.
• Number of Bulky Item/Reusable Materials Collection events by Customer Type. • Participation percentage by program and Customer Type where the participation percentage is calculated as the number of Customers who have subscribed to or requested service under the program relative to the number of Customers of that Customer Type subscribing to Solid Waste service. Contractor shall not be required to submit participant Customer names and addresses as part of the regular reporting; however, such information shall be provided to the City Contract Manager upon request.
• Detailed Customer account data in Microsoft Excel format including, but not limited to: customer name, service location address, Solid Waste, Recycling, Organics, and C&D Service Level information, contact name, address, and phone number. Such detail shall be sufficient for the City to verify Customers’ compliance/non-compliance with the mandatory Recycling requirements of AB 341, AB 1826, SB 1383 and/or Alameda County Waste Management Authority Mandatory Organics Reduction & Recycling Ordinance (ORRO). If necessary for compliance purposes, information shall be submitted on a monthly basis at the City’s request.

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June 1, 2023 C-3 Franchise Agreement, Exhibit C
• Other reports required by the State or Alameda County Waste Management Authority related to the mandatory Recycling requirements of AB 341, AB 1826, SB 1383 and/or Alameda County Waste Management Authority Organics Reduction & Recycling Ordinance (ORRO). If necessary for compliance purposes, information shall be submitted on a monthly basis at the City’s request.

2. Customer Service Report
• Number of Customer calls listed separately by complaints and inquiries (where inquiries include requests for Recycling information, Rate information, etc.) listed separately by month. For complaints, list the number of calls separately by category (e.g., missed pickups, scheduled cleanups, billing concerns, damage claims, etc.) and provide details regarding complaint resolution.
• Number of new service requests and Service Level changes for each Customer Type and program listed separately by month.
• Number of technical assistance requests and/or onsite services provided listed by month. • Number of events of Discarded Materials being tagged for non-Collection summarized by the reason for tagging (e.g., inclusion of non-Recyclable or non-Compostable materials, improper setout, Hazardous Waste, etc.) listed by month.
• Call center and web analytics such as hold times, number of hits and unique visitors to the Contractor’s website listed by month.

3. Education and Outreach Report
• Provide a status report of Contractor’s actual activities completed compared to the annual public education plan. For each completed item, document the results including what date the activity was performed, how many Customers were targeted or participated, and what methods were used to accomplish the task, if different from the plan. • Summarize the Recycling opportunity assessments/on-site meetings provided to Customers (reporting Multi-Family separately from Commercial) by identifying the number of Recycling opportunity assessments conducted each month in the most-recently completed quarter, and contact information including address, contact names, telephone number of Persons contacted, number of units (for Multi-Family), and the Solid Waste, Recyclable Materials, and Organic Materials Service Level. Include any Service Level changes resulting from such site visits. • Dates, times, and group names of meetings and events attended.

4. Pilot and New Programs Report (If applicable)
For each pilot and/or new program, provide activity related and narrative reports on goals, milestones, and accomplishments. Describe problems encountered, actions taken and any recommendations to facilitate progress. Describe vehicles, personnel, and equipment utilized for each program.

5. Revenue Report
Provide a statement detailing Gross Receipts from all operations conducted or permitted pursuant to this Agreement as required by Section 7.3. Gross Receipts shall be separately reported by Customer type and material type.

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June 1, 2023 C-4 Franchise Agreement, Exhibit C
Maintain a list of Customers that are forty five (45) or more calendar days past due and include the following information for each delinquent account: name; service address; contact information; number of days the account is delinquent; method(s) the Contractor has used to attempt collection of the bad debt including date of such attempt(s); and, identification, if, and when the Contractor plans to or did stop service to a delinquent account. Provide this list only upon request of the City.

6. Public Education Plan
Pursuant to Section 4.9, as part of the Contractor’s third quarterly report for the Rate Period, Contractor shall submit a plan outlining its public education efforts for the coming Rate Period.

7. Charitable Donations
Contractor shall clearly identify all charitable donations and report amounts donated by organization, including funds donated to the Newark Unified School District, Newark Education Foundation, or other organization mutually agreed to by the Parties, per Section 4.16. The report on funds donated to the Newark Unified School District, Newark Education Foundation, or other organization shall be accompanied by documentation of the calculation of the ten (10) percent donation.

Annual Report Content
The annual report shall include all the monthly and quarterly report information plus the following additional information.

1. Summary Assessment
Provide a summary assessment of the programs performed under this Agreement from Contractor's perspective relative to the financial and physical status of the program. The physical status assessment shall reflect how well the program is operating in terms of efficiency, economy, and effectiveness in meeting all the goals and objectives of this Agreement, particularly the Contractor’s Diversion goals.

Provide recommendations and plans to improve. Highlight significant accomplishments and problems.

Results shall be compared to other similar size communities served by the Contactor in the State, if applicable.

2. Vehicle Inventory
Provide a listing of all vehicles used in performing services under this Agreement including the license plate number, VIN, make, model, model year, purchase date, engine overhaul/rebuild date (if applicable), and mileage at December 31.

3. Recyclables, Organics, and C&D Markets
Contractor shall include a listing of markets for Source Separated Recyclable Materials, Source Separated Organic Materials, and C&D and the end use of these materials. This type of information is intended to help the City gauge the sustainability of Recycling and Organics markets and the ultimate disposal of all types of materials Collected.

4. Cost-Based Rate Adjustment Data
Provide the following information only if Maximum Rates are to be determined for the upcoming Rate Period using a cost-based adjustment process pursuant to Exhibit D2. With the exception of the “Financial Information” listed below, all other items listed may be requested by the City Contract Manager at any time during the Term of the Agreement and Contractor shall comply with that request in a timely Packet Page 365
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June 1, 2023 C-5 Franchise Agreement, Exhibit C
fashion.

A. Financial Information. Within one hundred twenty (120) calendar days after the close of the Rate Period, Contractor shall deliver to the City four (4) hard copies and one (1) electronic copy of the audited consolidated financial statements and profit and loss statements of Contractor for the preceding Rate Period. Financial statements shall include a supplemental combining schedule showing Contractor's results of operations, including the specific revenues and expenses in connection with the operations provided for in this Agreement from others included in such financial statements. The financial statements and footnotes shall be prepared in accordance with Generally Accepted Accounting Principles (GAAP) consistently applied and fairly reflecting the results of operation and Contractor’s financial condition. Annual financial statements shall be audited, in accordance with Generally Accepted Auditing Standards (GAAS) by a Certified Public Accountant (CPA) licensed (in good standing) to practice public accounting in the State as determined by the State Department of Consumer Affairs Board of Accountancy, and that the CPA’s opinion on Contractor's annual financial statements shall be unqualified, and shall contain the CPA’s conclusions regarding the Contractor’s accounting policies and procedures, internal controls, and operating policies. The CPA shall perform an evaluation and, if necessary, shall cite recommendations for improvement.

B. Related Party Entities. As part of the annual reporting requirement, Contractor shall provide the City with a copy of each related party entity's (whose cost of services are not predetermined in this Agreement on a unit price basis or by a governmental contractor) audited annual financial statements and management letter for that fiscal year, or within ninety (90) calendar days of each related party entity's fiscal year-end, if timing does not coincide with the annual report date. Financial statements shall be prepared in accordance with GAAP and audited, in accordance with GAAS, by a CPA licensed in the State, and that the CPA's opinion on each related party entity's annual financial statements shall be unqualified, and that the CPA make available to the City (or the City's designated representative) such CPA's working papers related to the audit.

Contractor agrees that all financial transactions with all related party entities shall be approved in advance in writing and disclosed in a separate disclosure letter to the City, upon request. This letter shall include, but not be limited to, the following information:
• A general description of the nature of each related party entity transaction, or type of transaction (if many similar transactions exist) shall be provided, as applicable. Such description shall include for each (or similar) transaction, amounts, specific related party entity, basis of amount (how amount was determined), description of the allocation methodology used to allocate any common costs, and profit amount. Amounts shall be reconciled to the related party entity disclosures made in Contractor's annual audited financial statements referred to in this Exhibit.
• At the City's request, Contractor shall provide the City with copies of working papers or other documentation deemed relevant by the Contractor relating to information shown in the annual disclosure letter.

C. Operational Information: Provide the following operational information upon request of the City:

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June 1, 2023 C-6 Franchise Agreement, Exhibit C

1. Routes by Customer Type
a. Number of routes per day for each line of business.
b. Types of vehicles.
c. Crew size per route.
d. Number of full time equivalent (FTE) routes.
e. Number of accounts and cubic yards scheduled per route. f. Total route hours per Customer Type per year.
g. Average cost per route.
h. Percentage of Drop Box routes attributable to C&D Collection

2. Personnel
a. Organizational chart.
b. Job classifications and number of employees (e.g., administrative, Customer service representatives, drivers, supervisors, educational staff). c. Wages by job classification.
d. Number of FTE positions for each job classification. e. Number of hours per job classification per year.

3. Productivity Statistics
a. Average number of accounts per route per day by Customer Type. b. Average number of setouts per route per day by Customer Type. c. Average Tons per route per day by vehicle type (i.e. side-loader, front-loader, rolloff). d. Average cubic yards of Collection scheduled per route. e. Analysis of Drop Box Collection service and calculation of the percentage of Drop Box route time attributable to C&D Collection.

4. Vehicles
a. List of collection vehicles including year purchased and mileage. b. Average age of mobile equipment with oldest and newest. c. List of major maintenance and/or replacement events, including costs.

5. Operational Changes
a. Number of routes.
b. Staffing.
c. Supervision.
d. Collection services.
e. Other data as applicable related to any programmatic or operational changes implemented within the Agreement.

D. Variance Analysis. Provide the following variance analysis for each Customer Type. For any variances greater than five (5) percent annually, Contractor shall provide sufficient rationale to support variance:

1. Variance analysis comparing the current Rate Period to each of the prior Rate Periods of Agreement.

2. Variance analysis comparing the current Rate Period to each of the future projected Rate Periods.

E. Allocations. Provide the following allocation data:

1. Provide a concise general explanation of the various allocation methodologies used for each Rate application line item.

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June 1, 2023 C-7 Franchise Agreement, Exhibit C

2. Provide specific examples of each type of allocation used showing how an entry is reported in the general ledger and ties to the Rate application

3. Provide a statement indicating whether there have been any changes in allocation methods used since the last Rate application. If any allocation methods have changed clearly identify those changes.

F. Projections. Provide the following projection data:

1. Provide support for the basis for projected Gross Receipts and line item expenses, clearly indicate the supporting calculations and assumptions

2. Provide support for the most-recent twelve (12) months of Tonnage data for the Rate Period. Clearly indicate the supporting calculations and assumptions.

5. Reporting for Enforcement and CalRecycle
Contractor shall report on all activities as required by CalRecycle in advance of the City’s reports to CalRecycle on August 1.

A. For public education. Provide the following information:

1. Copies of all such information (including flyers, brochures, newsletters, invoice messaging, website and social media postings, emails, and other electronic messages).

2. The date the information was disseminated or the direct contact made. For website and social media postings, this shall be the date posted.

3. To whom the information was disseminated or the direct contact made. For mass distributions such as mailings or bill inserts, Contractor may provide the type and number of accounts receiving the information, rather than listing each recipient individually.

B. For Route Reviews and Compliance Reviews. Provide the following information:

1. The date the review was conducted.

2. The name and title of each person conducting the review.

3. A list of the addresses covered by the review.

4. For Route Reviews, a description of each Hauler Route reviewed, including Contractor’s route number and a description of the Hauler Route area.

5. For Route Reviews, the results of such review (i.e. the addresses where any Prohibited Container Contaminants were found), and any photographs taken.

6. For compliance reviews that Contractor performs pursuant to Section 5(e) of this Amendment, the results of such review (i.e., Contractor’s findings as to whether the customers reviewed are subscribed for Organic Materials collection service, have an applicable waiver, or neither), and any relevant evidence supporting such findings (e.g. account records).

7. Copies of any educational materials issued pursuant to such reviews.

C. Prohibited Container Contaminants. Provide the following documentation relating to observed Prohibited Container Contaminants, whether observed during Route Reviews or otherwise:

1. Copies of the form of each notice issued to customers for Prohibited Container Contaminants, as well as, for each such form, a list of the customers to which such Packet Page 368
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June 1, 2023 C-8 Franchise Agreement, Exhibit C
notice was issued, the date of issuance, the customer’s name and service address, and the reason for issuance (if the form is used for multiple reasons).

2. The number of times notices were issued to customers for Prohibited Container Contaminants.

3. The number of Containers where the contents were disposed due to observation of Prohibited Container Contaminants.

4. A description of Contractor’s process for determining the level of Container contamination under the Agreement.

Event-Specific Requirements
A. Special Events. Pursuant to Section 4.6.C, within fourteen (14) calendar days of the end of a special event, Contractor shall submit a report to the City Contract Manager and event organizer documenting at a minimum: the number of event collection stations deployed at the event, the number of collection station monitors, the Tonnage of each material type (i.e., Solid Waste, Recyclable Materials, and Organic Materials) Collected, and a description of the public education provided at the event.

B. Litter/Spillage of Materials. Pursuant to Section 5.3.C, Contractor shall discuss instances of repeated spillage not caused by it directly with the Generator responsible and report such instances to City.

C. Notice of Non-Collection. Pursuant to Sections 4.1.E and 4.2.E, Contractor notify the City Contract Manager via email of Premises where materials are tagged by Contractor and not picked up, describing the type of material(s) and reason.

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EXHIBIT D

RATE ADJUSTMENT METHODOLOGY
D1. Index Rate Adjustment Methodology
D2. Cost-Based Rate Adjustment Methodology
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June 1, 2023 D-1 Franchise Agreement, Exhibit D

EXHIBIT D

RATE ADJUSTMENT METHODOLOGY
General
Subject to the terms herein, the City agrees to an annual adjustment of all Maximum Rates subject to review and approval by City. All annual Rate adjustments shall be performed using an indexed based Rate adjustment approach described in Exhibit D1 with the exception that in place of the index adjustment to set Maximum Rates , the Contractor and/or the City may each request one cost-based Rate adjustment (using the methodology described in Exhibit D2) to set Maximum Rates for Rate Periods Two, Three, Four or Five and may each request one cost-based Rate adjustment to set Maximum Rates for Rate Periods Six, Seven, Eight, Nine, or Ten provided that there are at least two (2) years between the cost-based Rate adjustments requested by Contractor. For example, if Contractor requests a cost-based Rate adjustment to set Rate Period Five Maximum Rates, Rate Period Seven is the earliest Rate Period that Contractor may request the next cost-based adjustment. In summary, up to four (4) cost-based Rate adjustments may be performed if the City and Contractor both exercise their rights pursuant to this paragraph.

For the index Rate adjustment process, the basis for the Maximum Rate adjustment shall be adjustment of the Total Annual Cost, which includes an “Operating Component”, “Disposal Component”, and “City Fee Component.” Each annual cost component shall be adjusted annually to calculate a new Total Annual Cost. The annual percentage change in the Total Annual Costs shall be applied to each Maximum Rate to determine the Maximum Rate for the coming Rate Period. For the cost-based Rate adjustment, actual costs are reviewed and used to project Total Annual Costs, which are divided by Gross Receipts (excluding those from Customers for the provision of C&D services) for the prior twelve (12) months to determine the rate adjustment factor by which Maximum Rates are adjusted.

Contractor shall submit its application for a Maximum Rate adjustment to the City Contract Manager on or before October 1 of each Rate Period when Maximum Rates for the coming Rate Period are to be adjusted using the index-based methodology. If either Party requests a cost-based adjustment, the requesting Party shall notify the other Party by March 1 of the Rate Period prior to the Rate Period for which Rates will be set through the cost-based adjustment. Contractor shall submit its application for the cost-based adjustment on or before July 1 of the Rate Period prior to the Rate Period for which Rates will be set through the cost-based adjustment (i.e., by July 1, 2016 if a cost-based adjustment has been requested for Rate Period Four, or July 1, 2020 for Rate Period Eight). Contractor’s Rate application shall document all calculations and include all supporting schedules, calculations of adjusted annual cost components, and any other documentation or evidence determined by the City Contract Manager to be reasonably necessary to ensure that the calculation of adjustments to Maximum Rates has been performed in strict conformance to the requirements of this Exhibit D.

The City Council shall make a good faith effort to approve Maximum Rates by December 1 of each year, and such Maximum Rates shall be effective on each subsequent January 1. If Maximum Rates are not effective by January 1 due to a delay caused solely by City, City may allow Contractor to retroactively bill Customers for the amount of the Maximum Rate increase for any period of said delay that is solely caused by City or the City may compensate the Contractor for lost Gross Receipts. If Maximum Rates are not effective by January 1 as a result of Contractor’s delay in submitting the Rate application in a complete and accurate form, then prior Maximum Rates remain in effect until such adjustment is made.

Contractor shall not be requested and did not include costs associated with C&D Collection and Processing Packet Page 373
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June 1, 2023 D-2 Franchise Agreement, Exhibit D
services in its Total Annual Cost; however, Maximum Rates for C&D services shall be adjusted by the Rate Adjustment Factor calculated in accordance with Exhibits D1 and D2 and shall be adjusted at the same time other Rates are adjusted.

Definitions
Certain terms which are specific to this Exhibit (including Exhibits D1 and D2) are defined below:

1. City Fees shall mean those fees described in Article 7 of this Agreement.

2. Annual Cost Component means each component of the Annual Cost including the operating, Disposal, and City fee components.

3. Annual Percentage Change means the average value of an index for the 12-month period ending August of the then-current Rate Period minus the average index value for the 12-month period ending August of the most-recently completed Rate Period, divided by the average index value for the 12- month period ending August of the most-recently completed Rate Period. The Annual Percentage Change shall be expressed as a percentage rounded to the nearest hundredth (e.g., X.XX%).

For example, if the Contractor is preparing its Rate application for Maximum Rates to be effective for Rate Period 2, the Annual Percentage Change in CPI shall be calculated as follows: [(Average CPI for September 2013 through August 2014) – (Average CPI for September 2012 through August 2013)] / (Average CPI for September 2012 through August 2013).

4. Bureau of Labor Statistics (BLS) shall mean the U.S. Department of Labor, Bureau of Labor Statistics or its successor agency.

5. Consumer Price Index (CPI) shall mean the Water and sewer and trash collection services in U.S. city average, all urban consumers, seasonally adjusted, U.S. city average, compiled and published by the BLS, using the following parameters:
• Area – U.S. city average
• Item – Water and sewer and trash collection services
• Series Identification Number – CUSR0000SEHG

6. Fuel Index shall mean the PG&E Compressed Natural Gas Index, Schedule G- NGV2.

7. Pass-Through Cost shall mean those City Fees, Tipping Fees, and other costs, as specifically identified below, that Contractor may include in the determination of the Total Annual Cost but which are not included in the calculation of Contractor’s allowable profit.

8. Rate Adjustment Factor shall mean the amount, expressed as a percentage, by which each Maximum Rate is adjusted.

9. Tipping Fee shall mean the rate or tipping fee charged for each Ton or unit of material delivered to an Approved Facility. The Parties acknowledge that the timing of changes to the Tipping Fees at Approved Facilities that are not owned or operated by Contractor or their subcontractor may not align with the review and adjustment of Maximum Rates under this Agreement. In the event that the Contractor begins to pay a new Tipping Fee at an Approved Facility, other than one owned and operated by Contractor or their Subcontractor, prior to the adjustment of Maximum Rates under this Agreement, the adjustment to the Rate Adjustment Factor shall consider that period. Alternatively, the City reserves the right to adjust Maximum Rates at any time during the year in order to address changes in Tipping Fees alone without adjusting any other component of Maximum Rates. The Packet Page 374
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June 1, 2023 D-3 Franchise Agreement, Exhibit D
“Current Approved” Tipping Fee for any Approved Facility shall be the Tipping Fee in place as the Rate Application date with the exception that the Tipping Fee for the Approved Transfer Facility shall be the average of the Tipping Fee in effect on the Rate Application Date and the Tipping Fee the City has calculated to take effective on July 1 of the coming Rate Period.

10. Total Annual Cost shall mean the total amount to be used as a basis for determining the Rate Adjustment Factor. The Total Annual Cost does not reflect or in any way guarantee the Gross Receipts that are to be generated by Rates or retained by the Contractor.

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City of Newark/Allied Waste
June 1, 2023 D1-1 Franchise Agreement, Exhibit D1
EXHIBIT D1

INDEX RATE ADJUSTMENT METHODOLOGY
D.1.1 General
The index Rate adjustment methodology involves adjusting: (1) the operating component of the Total Annual Cost for the current Rate Period by the change in the CPI and Fuel Indices; and, (2) the Disposal and City fee components of the Total Annual Cost by the actual changes to those components, to determine the Maximum Rates for the coming Rate Period. The intent of performing the index based adjustment is to allow Maximum Rates and resulting Annual Cost to be adjusted throughout the Term of this Agreement (giving consideration to the specific cost category of “fuel” that may be more volatile than the CPI) using simple, readily available indicators of changes in Contractor’s costs for providing service.

If the CPI or Fuel Index is discontinued or revised during the Term by the BLS, such other government index or computation with which it is replaced shall be used in order to obtain substantially the same result as would be obtained if said index had not been discontinued or revised.

For the purpose of determining Maximum Rates for Rate Period Two, the Total Annual Cost and its Operating Component, Disposal Component, and City Fee Component, shall be the proposed annual costs for the last 12 months of Rate Period One (January 1, 2014 through December 31, 2014) as shown in Attachment L.

D.1.2 Rate Adjustment Methodology
Contractor shall calculate the adjustment to Maximum Rates using the following methodology:

Step 1: Calculate the “Operating Component Factor” or “OCF”, which shall be rounded to the nearest hundredth (100th) percent.

Step 1a: Calculate the Annual Percentage Change in the CPI using one-hundred percent (100%) of the twelve (12) month average percentage change in the CPI between September of the current year to September of the prior year.

Step 1b: Calculate the Annual Percentage Change in the Fuel Index.

Step 1c: Calculate the OCF, rounded to the nearest hundredth (100th) percent, as follows:

OCF = (95% x Annual Percentage Change in CPI calculated in Step 1a above) + (5% x Annual Percentage Change in the Fuel Index calculated in Step 1b above) For example, assuming:

1. Proposed annual operating costs less fuel are 95% of proposed total annual operating costs.

2. Proposed fuel costs are 5% of proposed annual operating costs.

3. Annual Percentage Change in CPI = 1.23%

4. Annual Percentage Change in Fuel Index = 1.17%

5. OCF = (95% x 1.23%) + (5% x 1.17%) = 0.0123 = 1.23%
Packet Page 377
City of Newark/Allied Waste
June 1, 2023 D1-2 Franchise Agreement, Exhibit D1
If the OCF is greater than five percent (5%), the OCF shall be set equal to five percent (5%) and the remaining increase shall be reflected (“carried forward”) to the following Rate Period. If the adjustment to the Operating Component for the prior Rate Period resulted in a “carry over” to limit the amount of the Operating Component increase to five percent (5%), then the carry over amount may be added to the OCF.

Step 2: Calculate the adjusted Operating Component, rounded to the nearest dollar, as follows:

Adjusted Operating Component = Then-current Operating Component x (1 + OCF) For example, assuming:

1. Then-current Operating Component = $4,000,000

2. OCF = 1.23% (as calculated in Step 1c)

3. Adjusted Operating Component = $4,000,000 x (1 + 0.0123) = $4,049,000 Step 3: Calculate the adjusted Disposal and City Pass-Through Fees Component, rounded to the nearest dollar, to reflect any percentage change in the Average Tipping Fee charge at the Approved Transfer Facility. The calculations rely on an averaging of the Tipping Fees because the Tipping Fee at the Approved Transfer Facility is adjusted annually on July 1 of each year in the middle of each Rate Period. The adjustment shall be calculated as follows:

Disposal and City Pass-Through Fees Component = Adjusted Disposal Component + City PassThrough Fees Component Adjusted Average Approved Transfer Facility Tipping Fee = (Then-Current Approved Transfer Facility Tipping Fee + Projected Approved Transfer Facility Tipping Fee for the coming Rate Period) / 2 where the following applies:
• The then-current Approved Transfer Facility Tipping Fee is the Tipping Fee that is effective as of the Rate Application Date through June 30 of the coming Rate Period; and, • The projected Approved Transfer Facility Tipping Fee for the coming Rate Period is the Tipping Fee that the City has calculated to be effective July 1 through December 31 of the coming Rate Period.

Adjusted Disposal Component = Then-current Disposal Component x (Adjusted Average Approved Transfer Facility Tipping Fee / Prior Average Approved Transfer Facility Tipping Fee) City Pass-Through Fees Component = SB 1383 Fee (set per Section 7.5) + Compost Purchase Cost (set per Section 4.8.4.C.3)
For example, assuming:

1. Then-current Disposal Component = $1,500,000

2. Then-Current Approved Transfer Facility Tipping Fee (effective on the Rate Application Date through June 30 of the coming Rate Period) = $38.00 per Ton

3. Projected Approved Transfer Facility Tipping Fee for the coming Rate Period = $39.14 per Ton

4. Adjusted Average Approved Transfer Facility Tipping Fee = ($38.00 + $39.14) / 2 = $38.57

5. Prior Average Approved Transfer Facility Tipping Fee = $37.45 per Ton

6. Adjusted Disposal Component = $1,500,000 x ($38.57 / $37.45) = $1,544,859 Step 4: Calculate the City Fee Component, rounded to the nearest dollar. The City Fee Component of the Packet Page 378
City of Newark/Allied Waste
June 1, 2023 D1-3 Franchise Agreement, Exhibit D1
Annual Cost Component shall be calculated as follows:

Adjusted City Fee Component = [(Adjusted Operating Component + Adjusted Disposal Component) / (1- Franchise Fee)] – (Adjusted Operating Component + Adjusted Disposal Component);
In simplified form, the Adjusted City Fee Component = 0.25 x (Adjusted Operating Component + Adjusted Disposal Component)
For example, assuming:

1. Adjusted Operating Component = $4,049,000 (as calculated in Step 2)

2. Adjusted Disposal Component = $1,544,859 (as calculated in Step 3)

3. Franchise Fee = 20% of Gross Receipts

4. Adjusted City Fee Component = 0.25 x ($4,084,000 + $1,544,859) = $1,398,465 Step 5: Calculate the adjusted Total Annual Cost.

Adjusted Total Annual Cost = Adjusted Operating Component + Adjusted Disposal Component + Adjusted City Fee Component
For example, assuming:

1. Adjusted Operating Component = $4,049,000 (as calculated in Step 2)

2. Adjusted Disposal Component = $1,544,859 (as calculated in Step 3)

3. Adjusted City Fee Component = $1,398,465 (as calculated in Step 4)

4. Adjusted Total Annual Cost = $4,049,000 + $1,544,859 + $1,398,465 = $6,992,324 Step 6: Calculate the Rate Adjustment Factor, which shall be rounded to the nearest thousandth.

Rate Adjustment Factor = Adjusted Total Annual Cost / Then-Current Total Annual Cost For example, when calculating Rate Period Two, assuming:

1. Then-current Total Annual Cost for Rate Period One= $6,875,000

2. Adjusted Total Annual Cost = $6,992,324 (as calculated in Step 5)

3. Rate Adjustment Factor = $6,992,324 / $6,875,000 = 1.017 Step 7: Calculate the new Maximum Rates for All Rates except C&D Rates.

Multiply each then-current Maximum Rate by the Rate Adjustment Factor to calculate the effective Maximum Rate for the coming Rate Period, rounded to the nearest cent.

For example, assuming:

1. Then-current Maximum 20-gallon Single-Family Rate = $20.00

2. Rate Adjustment Factor = 1.017 (as calculated in Step 6)

3. Adjusted Maximum 20-gallon Single-Family Rate for coming Rate Period = $20.00 x

1.017= $20.34
Step 8: Calculate the new Maximum Rates for C&D Services, rounded to the nearest cent, as follows:

Adjusted Maximum C&D Rate = Then-current Maximum C&D Rate x (1 + OCF) Packet Page 379
City of Newark/Allied Waste
June 1, 2023 D1-4 Franchise Agreement, Exhibit D1
For example, assuming:

1. Then-current Maximum Rate for a 14 cubic yard C&D drop box = $400.00

2. OCF = 1.23% (from Step 1)

3. Adjusted Maximum Rate for a 14 cubic yard C&D drop box = $400.00 x (1 + 0.0123) = $404.92
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City of Newark/Allied Waste
June 1, 2023 D2-1 Franchise Agreement, Exhibit D2
EXHIBIT D2

COST-BASED RATE ADJUSTMENT

METHODOLOGY
General
The cost-based adjustment involves review of the Contractor’s actual cost of operations and operational statistics (staffing levels, routes, route hours, Customers and their service levels, etc.) to determine the Total Annual Cost for the current Rate Period and to forecast the Total Annual Cost for the coming Rate Period. The difference (measured as a percentage) between the Total Annual Cost for the coming Rate Period and the Gross Receipts most-recently reported calendar year is the “Rate Adjustment Factor”. The Rate Adjustment Factor is applied to the then-current Maximum Rates to determine the Maximum Rates for the coming Rate Period.

The intent of performing the cost-based adjustment is to examine the actual impact of changes in inflation or deflation, the number of Customers, and the Service Level of Customers.

The City may incur costs, including consulting and legal fees, when determining adjustments to the Maximum Rates in accordance with this Exhibit and may require the Contractor to pay for such costs within sixty (60) calendar days of receipt of the City’s invoice for such costs. The Contractor may recover such costs through the Maximum Rates by treating the costs as an allowable Pass-Through Cost.

Regardless of Contractor’s payment of costs associated with said review, City shall retain full and unimpeded discretion in selection of its agents to ensure, at a minimum, that no conflict of interest arises in the review of Contractor’s request. City retains the right to select its agents on the basis of their qualifications and experience and without regard to cost.

Forecasting Total Annual Cost
The Total Annual Cost for the coming Rate Period shall be forecasted in the manner described in this Section.

A. Forecasting Total Annual Cost of Operations

1. Determine Actual Total Annual Cost of Operations. Contractor's financial statement, books, and records shall be reviewed to determine Contractor's “Actual Total Annual Cost of Operations” for the most-recently completed Rate Period to perform all the services in the manner required by this Agreement for each of the following cost categories:
a. Labor-related costs
b. Vehicle-related costs (excluding fuel)
c. Fuel costs
d. Other costs
e. Depreciation costs

2. Calculate Allowable Costs. Contractor shall calculate “Allowable Total Annual Cost of Operations” for the most-recently completed Rate Period by adjusting “Actual Total Annual Cost of Operations” for the most-recently completed Rate Period (determined in accordance with A.1 above) to deduct non-allowable costs. The Allowable Total Annual Cost of Operations shall be Packet Page 382
City of Newark/Allied Waste
June 1, 2023 D2-2 Franchise Agreement, Exhibit D2
reported in the cost categories identified in A.1 above. Non-allowable costs that shall be deducted from actual costs include the following:
a. Labor and equipment costs for personnel and vehicles that are not specified in the proposal forms contained in Exhibit N.
b. Payments to directors and/or owners of Contractor unless the amount paid is reasonable compensation for services actually rendered. Reasonableness shall be determined based on available market pricing for similar services and shall be in the sole discretion of the City.
c. Travel expenses and entertainment (above five thousand dollars ($5,000) annually in total) expenses, unless authorized in advance by the City. d. Payments to repair damage to public or private property for which Contractor is legally liable.
e. Fines or penalties of any nature.
f. Liquidated Damages assessed under this Agreement.
g. Federal or State income taxes.
h. Charitable or political donations unless such donation is to a youth, civic, or charitable organization and has been previously approved in writing as an allowable expense by the City Contract Manager.
i. Depreciation or interest expense for Collection vehicles, Containers, other equipment, offices and other facilities if such items are leased as specified in Exhibit N.
j. Attorney's fees and other expenses incurred by Contractor in any court proceeding in which the City and Contractor are adverse Parties. k. Attorney's fees and other expenses incurred by Contractor arising from any act or omission in violation of this Agreement.
l. Attorneys' fees and other expenses incurred by Contractor in any court proceeding in which Contractor's own negligence, violation of law or regulation, or wrong doing are in issue and occasion, in whole or in part, the attorneys' fees and expenses claimed; and attorneys' fees and expenses incurred by Contractor in a court proceeding in which the legal theory or statute providing a basis of liability against Contractor also provides for separate potential liability for the City derived from the action of its citizens or Rate payers (such as in a CERCLA lawsuit) unless the Contractor is found not liable in such claims and such claims arise from acts or occurrences within the Term of the Agreement.
m. Payments to Related-Party Entities for products or services, in excess of the cost to the Related-Party Entities for those products or services. n. Goodwill.
o. Unreasonable profit sharing distributions.
p. Replacement costs for Containers that need to be replaced because the useful life of such Container was less than the ten- (10-) year Term.

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City of Newark/Allied Waste
June 1, 2023 D2-3 Franchise Agreement, Exhibit D2
q. Administrative costs greater than the administrative costs presented in Contractor’s Proposal (Exhibit I) adjusted annually by the Annual Percentage Change in the CPI.
r. Bad debt write-offs in excess of two percent (2%) of Gross Receipts. Bad debt compensation to Contractor in Rate Period 1 is $204,191. s. C&D Collection and Processing costs including disposal of Processing Residue.

C&D Collection costs shall be allocated based on the percentage of the total Drop Boxes services that were used for the Collection of Source Separated Recyclable C&D. The C&D Collection costs will then be calculated as the percentage of C&D Drop Box service multiplied by the total Collection costs for all Drop Box service.

For example, if Source Separated C&D Drop Boxes were twenty-five percent of the total Drop Box pulls, twenty-five percent (25%) of the total Drop Box Collection costs would be allocated to the C&D service. Disposal, Processing, and franchise fees will be allocated to C&D services on an actual cost basis. t. Increased route costs if route productivity at the time of review is lower than shown on Form 2 of Exhibit N, Operating Statistics.

3. Forecast Total Annual Cost of Operations. Forecasted Total Annual Cost of Operations for the coming Rate Period shall be calculated based on Allowed Total Cost of Operations for the most-recently completed Rate Period determined in accordance with A.2 above. The forecasts shall be performed in the following manner:
a. Forecasted labor-related costs shall be calculated for the coming Rate Period by multiplying the allowed labor-related costs, both direct and allocated, for the most-recently completed Rate Period by one (1) plus the Annual Percentage Change in the CPI. The result of this calculation shall be multiplied once more by one (1) plus the Annual Percentage Change in the CPI.
b. Forecasted vehicle-related costs (excluding fuel and depreciation costs) shall be calculated for the coming Rate Period by multiplying the allowed vehicle-related costs, both direct and allocated, for the most-recently completed Rate Period by one (1) plus the Annual Percentage Change in the CPI. The result of this calculation shall be multiplied once more by one (1) plus the Annual Percentage Change in the CPI.
c. Forecasted fuel costs shall be calculated for the coming Rate Period by multiplying the allowed fuel costs, both direct and allocated, for the mostrecently completed Rate Period by one (1) plus the Annual Percentage Change in the Fuel Index. The result of this calculation shall be multiplied once more by one (1) plus the Annual Percentage Change in the Fuel Index. d. Forecasted Source Separated Recyclable Materials Processing Cost shall be calculated for the coming Rate Period as follows: Annual Forecasted Recyclable Materials Processing Cost = (Projected Per-Ton Processing Fee at Approved Recyclable Materials Processing Facility) x (total Tons of Source Separated Recyclable Materials Collected for the most-recently completed twelve- (12-) month period). For the purposes of this calculation the Projected Per-Ton Processing Fee shall be $110.57 per ton (set in Rate Period 1) multiplied by the total amount of the annual rate adjustments thereafter per year; or mutually Packet Page 384
City of Newark/Allied Waste
June 1, 2023 D2-4 Franchise Agreement, Exhibit D2
agreed upon market rate for Processing Recyclable Material. e. Forecasted Source Separated Organic Materials Processing Cost shall be calculated for the coming Rate Period as follows: Annual Forecasted Organic Materials Processing Cost = (Projected Per-Ton Processing Fee at Approved Organic Materials Processing Facility) x (total Tons of Source Separated Organic Materials Collected for the most-recently completed twelve- (12-) month period).

For this calculation, the Projected Per-Ton Processing Fee shall be calculated in the same manner as described in Item d above for Recyclable Materials Processing, except that the Rate Period 1 per-ton amount shall be $120.00. f. Forecasted other costs shall be calculated for the coming Rate Period by multiplying the allowed other-related costs, both direct and allocated, for mostrecently completed Rate Period by one (1) plus the Annual Percentage Change in CPI. The result of this calculation shall be multiplied once more by one (1) plus the Annual Percentage Change in the CPI.
g. Forecasted direct depreciation expense shall be the amount specified in Exhibit N for vehicles, Containers, and facilities. Direct depreciation expense is a fixed cost and is not subject to inflation.
h. Forecasted allocated depreciation expense shall be the amount specified in Exhibit N for vehicles, Containers, and facilities. Allocated depreciation expense is a fixed cost and not subject to inflation.
i. Forecasted Total Annual Cost of Operations for the coming Rate Period shall equal the sum of the forecasted costs in items a through h above.

B. Forecast Profit
Contractor shall be entitled to Profit on Forecasted Total Annual Cost of Operations. Profit shall be calculated using an operating ratio of eighty-eight (88%). Forecasted Profit shall be calculated using the following formula:

Forecasted Profit = (Forecasted Total Annual Cost of Operations / Operating Ratio) - Forecasted Total Annual Cost of Operations
For example:

1. Assuming an operating ratio of 88%

2. Assuming a Forecasted Total Annual Cost of Operations of $4,000,000

3. Forecasted Profit = (4,000,000 / 0.88) - 4,000,000= $545,454 C. Forecasted Pass-Through Costs
Pass-Through Costs for the coming Rate Period shall be forecasted in the following manner:

1. Forecasted Disposal Cost. Annual Forecasted Disposal Cost = Average Approved Transfer Facility Tipping Fee x (total Tons of Solid Waste Collected for the most-recently completed twelve (12) months). For the purposes of this calculation, the Average Approved Transfer Packet Page 385
City of Newark/Allied Waste
June 1, 2023 D2-5 Franchise Agreement, Exhibit D2
Facility Tipping Fee = (Then-Current Approved Transfer Facility Tipping Fee + Projected Approved Transfer Facility Tipping Fee to be effective July 1 of the coming Rate Period) /

2. 2. Forecasted Interest Expense. Interest Expense is $137,723 per year and shall not be adjusted over the Term of the Agreement.

3. Forecasted Direct Lease Costs. Direct Lease Costs are $0.00 per year and shall not be adjusted over the Term of the Agreement

4. Forecasted Allocated Lease Costs. Allocated Lease Costs are $0.00 per year and shall not be adjusted over the Term of the Agreement.

5. Rate Application Review Costs. An amount determined by the City to reimburse the Contractor for payment of the City’s costs, including consulting and legal fees associated with determination of Maximum Rates under this Exhibit.

6. Carry Over from Prior Rate Period. If the adjustment to the Operating Component for the prior Rate Period resulted in a “carry over” to limit the amount of the Operating Component increase to five percent (5%), then the carry over amount may be included as a pass-through cost.

7. SB 1383 Fee. An amount determined by the City per Section 7.5

8. Compost Purchase Cost. The costs of purchasing additional compost, set per Section

4.8.4.C.3.

9. Forecasted Pass-Through Costs. Forecasted Pass-Through Costs shall equal the sum of the forecasted costs calculated for items 1 through 8 above.

D. Forecast City Fees

1. Adjusted Operating Component. First forecast the Adjusted Operating Component. It equals the Forecasted Total Annual Cost of Operations plus Forecasted Profit and Forecasted Interest Expense; however, if the Adjusted Operating Components is more than five percent (5%) greater than the then-current Operating Component, the Adjusted Operating Component shall be equal the then-current Operating Component plus five percent (5%) and the remaining increase shall be reflected (“carried forward”) to the Operating Component for the following Rate Period.

2. Forecasted City Fees. Forecasted City Fee (i.e., Franchise Fees) shall equal twenty percent (20.0%) of the Forecasted Total Annual Cost = 0.25 x (Adjusted Operating Component + (Forecasted Pass-Through Costs – Forecasted Interest Expense)).

E. Forecasted Total Annual Cost
Forecasted Total Annual Cost = Adjusted Operating Component + Forecasted Pass-Through Costs – Forecasted Interest Expense) + Forecasted City Fees.

RATE ADJUSTMENT FACTOR
Calculate the Rate Adjustment Factor equal to the Adjusted Total Annual Cost divided by Gross Receipts for the most-recently completed twelve- (12-) month period, which shall be rounded to the nearest Packet Page 386
City of Newark/Allied Waste
June 1, 2023 D2-6 Franchise Agreement, Exhibit D2
thousandth (X.XXX). For the purpose of calculating the Rate Adjustment Factor, Gross Receipts shall not include Gross Receipts from Customers for the provision of C&D services.

ADJUSTMENT OF MAXIMUM RATES EXCEPT FOR C&D RATES
Calculate the new Maximum Rates by multiplying each then-current Maximum Rate by the Rate Adjustment Factor to calculate the effective Maximum Rate for the coming Rate Period, rounded to the nearest cent. For example, assuming:

1. Then-current Maximum 20-gallon Single-Family Rate = $20.00

2. Rate Adjustment Factor = 1.050

3. Adjusted Maximum 20-gallon Single-Family Rate for coming Rate Period = $20.00 x

1.050= $21.00

ADJUSTMENT OF ANNUAL COST COMPONENTS
Calculate adjusted Annual Cost Components that will serve as the basis for the next Index Rate Adjustment process. Calculations shall be performed as follows:

A. Adjusted Operating Component equals the amount calculated when determining the Forecasted City Fees in accordance with Section D above;
B. Adjusted Disposal Component equals the Forecasted Disposal Cost; and, C. Adjusted City Fee Component equals the Forecasted City Fees in accordance with Section D above.

ADJUSTMENT OF MAXIMUM RATES FOR C&D SERVICES
Maximum Rates for C&D services shall be adjusted in accordance with the Index Rate Adjustment Methodology described in Exhibit D1 rather than the Cost-Based Rate Adjustment Methodology of this Exhibit D2.

Packet Page 387

EXHIBIT E

PERFORMANCE STANDARDS AND

LIQUIDATED DAMAGES
Packet Page 388
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City of Newark/Allied Waste
June 1, 2023 E-1 Franchise Agreement, Exhibit E

EXHIBIT E

PERFORMANCE STANDARDS AND

LIQUIDATED DAMAGES
City wishes to establish standards of performance under the Agreement in each of the five (5) “Performance Areas” listed below. Contractor may be assessed Liquidated Damages in the event Contractor fails to fulfill its obligations with regards to the events listed in this Exhibit in accordance with the terms and conditions of the Agreement with regards to the time frame for accomplishing each event and nature of the responsibility associated with the event unless otherwise stated in this Exhibit. Refer to Section 10.6 of the Agreement for procedures for assessing Liquidated Damages. Liquidated Damages, if assessed, shall only be assessed for the number of events, days, or other measure in excess of the acceptable performance level.

Defined Terms
Certain terms that are specific to this Exhibit are defined below:
“Complaint” shall mean each written or orally communicated statement made by any Person, whether to City or Contractor, alleging: (1) non-performance, or deficiencies in Contractor’s performance, of its duties under this Agreement; or, (2) a violation by Contractor of this Agreement. “Service Opportunity” shall mean each individual scheduled opportunity the Contractor has to Collect from a Container at a Customer’s location. For example, a Multi-Family or Commercial Customer receiving Solid Waste Collection service three (3) times per week from two (2) Containers and Recyclable Materials Collection service two (2) times per week from two (2) Containers would have a total of ten (10) Service Opportunities each week. Service Opportunities shall be calculated based on the subscription levels presented in Contractor’s most recent Quarterly Report to City.

For a Single-Family Customer with three Carts for Collection of Solid Waste, Recyclable Materials, and Organic Materials, the Customer would have a total of three (3) Service Opportunities each week.

Packet Page 390
City of Newark/Allied Waste
June 1, 2023 E-2 Franchise Agreement, Exhibit E
Performance Area No. 1: Service Quality and Reliability Specific
Performance
Measure Definition
Acceptable
Performance
Level
Liquidated
Damage
Amount
Missed Collections Each Service Opportunity where Contractor fails to Collect a Container from a Customer
who properly placed said Container for
Collection.

Less than 6 per
day
$50/Event
Failure to Correct
Missed Collections
Each “Missed Collection” as defined above;
or Containers not being re-locked; or
Containers not being returned to the
service location, which is not corrected by
the end of the Business Day following the
receipt of the Customer Complaint, or City
notification, about the Missed Collection or
other deficiency.

Less than 2 per
day
$100/Event
Failure to Clean-Up
Spillage
Each failure by Contractor to clean up: (1)
any items or materials spilled during the
Collection of a Container; or, (2) any fluids
spilled or leaked from a Container or
Collection vehicle prior to leaving the
Collection location.

Less than 12
per month
$50/Event
Damage to
Property
Each event of damage to either public or
private property as a result of Collection
activity, including without limitation curbs,
sidewalks, landscapes, Container enclosures
and gates, signs, light fixtures, and
overhead wires and cables.

Less than 6 per
month
$150/Event
Excessive Noise or
Discourteous
Behavior
Each Complaint received that is related to
either noise during Collection activity or the
behavior of Contractor’s employees.

Less than 12
per month
$200/Event
Packet Page 391
City of Newark/Allied Waste
June 1, 2023 E-3 Franchise Agreement, Exhibit E
Specific
Performance
Measure Definition
Acceptable
Performance
Level
Liquidated
Damage
Amount
Inaccurate Billing Each Complaint received where the
Contractor billed a Customer in error.

Inaccurate billing may include, but is not
limited to: (i) either over- or under-charging
of the Customer relative to the approved
Maximum Rates for services, (ii) charging
the Customer a Rate that is not the same as
other Customers with the same Service
Level; (iii) charging a Customer for an
increased Service Level prior to providing
the service; (iv) not charging a Customer for
reduced Service Level within seven (7) of
the date Customer requested the change
regardless of whether or not Contractor
delivers the appropriate Containers or
modifies the Service Level within that
timeframe.

Less than 12
per month
$50/Event
Failure to Perform
Other Requirement
Each failure to perform any obligation of
the Agreement not specifically stated
above.

No acceptable
failure level
$100/Event
Performance Area No. 2: Customer Service
Specific
Performance
Measure Definition
Acceptable
Performance
Level
Liquidated
Damage
Amount
Failure to
Commence Service
Any failure by Contractor to deliver a
Container and begin providing Collection to a
Customer, at the Service Level requested by
said Customer, within seven (7) calendar days
of receiving such request. This may include a
new Customer receiving new service or an
existing Customer requesting a change in or
addition to existing Service Levels. This may
also include delivering Used Oil Recovery Kits
to Customers upon request.

Less than 12
per month
$50/Event
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City of Newark/Allied Waste
June 1, 2023 E-4 Franchise Agreement, Exhibit E
Specific
Performance
Measure Definition
Acceptable
Performance
Level
Liquidated
Damage
Amount
Failure to Replace
Container or
Remove Graffiti
Any failure by Contractor to replace or repair
a damaged Container within seven (7)
calendar days of receiving such a request
from a Customer, or any failure by Contractor
shall remove graffiti from Containers within
forty-eight (48) hours of identification by
Contractor or notice by City or Customer if
such graffiti includes any written or pictorial
obscenities and otherwise within five (5)
Business Days.

No acceptable
failure level
$50/Event
Failure to Resolve
Complaint
Any failure by Contractor to resolve or
remedy a Complaint within seven (7) calendar
days of receiving such Complaint.

Less than 12
per month
$100/Event
Failure to Answer
Phones
Any failure by Contractor to answer a
telephone call from a Customer during
normal business hours. A call is not
considered to be answered if the Customer
does not speak with a live operator. A call is
considered to be answered if the Customer
hangs-up or abandons the call following a
hold time of less than three (3) minutes.

Less than 12
per month
$50/Event
Excessive Call
Center Hold Time
Each occurrence of a call being placed “on
hold” for more than two (2) minutes.

Less than 12
per month
$50/Event
Unauthorized Hours
of Operation
Each occurrence of Contractor Collecting
from Customers during unauthorized hours.

Less than 12
per month
$50/Event
Performance Area No. 3: Diversion
Specific
Performance
Measure Definition
Acceptable
Performance
Level
Liquidated
Damage
Amount
Failure to Perform
Education and
Outreach Activities
Each individual failure by Contractor to
develop, produce, and distribute public
education material or perform community
outreach activities in the form and manner
required under Exhibit B to this Agreement.

No acceptable
failure level
$300/Activity
Failure to Provide
Targeted Technical
Assistance
Each individual failure to provide targeted
technical assistance to a Commercial or
Multi-Family Customer in the manner
required under Exhibit B to this Agreement.

No acceptable
failure level
$25/Customer
Packet Page 393
City of Newark/Allied Waste
June 1, 2023 E-5 Franchise Agreement, Exhibit E
Specific
Performance
Measure Definition
Acceptable
Performance
Level
Liquidated
Damage
Amount
Failure to Meet
Performance
Standards for
Phone Calls or Site
Visits
Each phone call or site visit not conducted
to a Commercial or Multi-Family Customer.
80 Phone Calls
annually
160 Site Visits
annually
$100/Event
Performance Area No. 4: Facilities
Specific
Performance
Measure Definition
Acceptable
Performance
Level
Liquidated
Damage
Amount
Delivery to NonApproved FacilityEach individual occurrence of delivering materials to a facility other than the
Approved Facility designated for each
material type under Sections 4.7 and 4.8 of
this Agreement.

No acceptable
failure level
$50/Ton
Disposal of Material
Targeted Diversion
Each individual occurrence of disposal
rather than Processing of Source Separated
Recyclable Materials, Source Separated
Organic Materials, Source Separated
Recyclable C&D, or Reusable Materials set
out for Collection by the Customer.

No acceptable
failure level
$300/Ton
Mixing Material
Types During
Collection
Each individual Container that is Collected
by Contractor in a vehicle intended or
designated for the purpose of Collecting a
different material type (e.g. Recyclable
Materials Collected in Solid Waste vehicle,
Solid Waste Collected in Organic Materials
vehicle, etc.)
No acceptable
failure level
$100/Container
Performance Area No. 5: Reporting
Specific
Performance
Measure Definition
Acceptable
Performance
Level
Liquidated
Damage
Amount
Late Report Each occurrence of a report, as required
under Exhibit C to this Agreement, being
submitted after the due date and after
notification by City of late report. Reports
shall be considered late until they are
submitted in a complete and accurate
format.

Less than
seven (7)
calendar days
after report
due date
$250/Day
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City of Newark/Allied Waste
June 1, 2023 E-6 Franchise Agreement, Exhibit E
Specific
Performance
Measure Definition
Acceptable
Performance
Level
Liquidated
Damage
Amount
Failure to Maintain
or Provide Access
to Records
Each occurrence of City Contract Manager
requesting information required to be
maintained by Contractor where
Contractor fails to provide such
information.

Less than
seven (7)
calendar days
after report
due date
$500/Event
Misleading/
Inaccurate
Reporting
Each occurrence of Contractor providing
misleading or otherwise inaccurate
information or reporting to City under or in
regard to this Agreement. Typographical,
cell reference, mathematical, and/or logic
errors shall not be considered legitimate
excuses from this requirement, nor shall
ignorance.

No acceptable
failure level
$200/Event
By placing Designee’s initials at the places provided, each Party specifically confirms the accuracy of the statements made above and the fact that each Party has had ample opportunity to consult with legal counsel and obtain an explanation of Liquidated Damage provisions of the time that the Agreement was made.

Contractor City
Initial Here:_________ Initial Here: ________
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EXHIBIT F

LIST OF CITY AND NEWARK UNIFIED SCHOOL

DISTRICT FACILITIES AND SPECIAL EVENTS
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City of Newark/Allied Waste
June 1, 2023 F-1 Franchise Agreement, Exhibit F

EXHIBIT F

LIST OF CITY AND NEWARK UNIFIED SCHOOL

DISTRICT FACILITIES AND SPECIAL EVENTS
City Facilities
• Ash Street Park
• Birch Grove Park
• City Hall
• Community Center
• Community Center Park
• Fire Stations (3)
• Silliman Center
• Second Chance Shelter
• Senior Center
• Service Center
• Future City Facilities as needed
Newark Unified School District Facilities
• Birch Grove Primary School
• Graham Elementary School
• Kennedy Elementary School
• Lincoln Elementary School
• Birch Grove Secondary School
• Musick Elementary School
• Schilling Elementary School
• Snow Elementary School
• Whiteford School
• MacGregor School Campus
• Newark Junior High School
• Newark Memorial High School
• Corporation Yard
• Kitchen/Warehouse
• District Office
Special Events
• Newark Days – This event requires a minimum of two thirty- (30-) yard Drop Boxes for Solid Waste and one thirty- (30-) yard covered, locking Drop Box for cardboard Recycling) • Music at the Grove Series
• Five other events per year as determined by City
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EXHIBIT G

GUARANTY AGREEMENT
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City of Newark/Allied Waste
June 1, 2023 G-1 Franchise Agreement, Exhibit G

EXHIBIT G

GUARANTY AGREEMENT
THIS GUARANTY (the "Guaranty") is given as of the ______ day of ___________, 2013, by Republic Services, ("Guarantor"), to the CITY OF NEWARK, a California municipal corporation ("City").

THIS GUARANTY is made with reference to the following facts and circumstances:

A. Allied Waste Services of North America, LLC (“Contractor”) is a corporation organized under the laws of the State of California, all of the issued and outstanding stock of which is owned by Guarantor.

B. Guarantor is a corporation organized under the laws of the State of California.

C. Contractor and City have negotiated an Agreement for Collection of Solid Waste and Collection and Processing of Source Separated Recyclable Materials, Source Separated Organic Materials, and C&D (such agreement, as it may be amended, modified or waived from time to time, the “Agreement”), under which Contractor is to provide specified services to City. A copy of this Agreement is attached hereto and incorporated herein by this reference.

D. It is a requirement of the Agreement, and a condition to City's entering into the Agreement, that Guarantor guaranty Contractor's performance of the Agreement.

E. Guarantor is providing this Guaranty to induce City to enter into the Agreement.

NOW, THEREFORE, in consideration of the foregoing, Guarantor agrees as follows:

1. Guaranty of the Agreement. Guarantor hereby irrevocably and unconditionally guarantees to City the complete and timely performance, satisfaction and observation by Contractor of each and every term and condition of the Agreement which Contractor is required to perform, satisfy or observe. In the event that Contractor fails to perform, satisfy or observe any of the terms or conditions of the Agreement, Guarantor will promptly and fully perform, satisfy or observe them in the place of the Contractor. Guarantor hereby guarantees prompt payment to City of each and every sum due from Contractor to City under the Agreement, as and when due from time to time, and the prompt performance of every other task and duty required to be performed by the Contractor under the Agreement.

2. Guarantor’s Obligations Are Absolute. The obligations of the Guarantor hereunder are direct, immediate, absolute, continuing, unconditional and unlimited and, with respect to any payment obligation of Contractor under the Agreement, shall constitute a guarantee of payment and not of collection, and are not conditioned upon the genuineness, validity, regularity or enforceability of the Agreement.

3. Waivers and Subordination. The Guarantor shall have no right to terminate this Guaranty or to be released, relieved, exonerated or discharged from its obligations under Section 1 hereof for any reason whatsoever, including, without limitation: (1) the insolvency, bankruptcy, reorganization or cessation of existence of the Contractor; (2) any amendment, modification or waiver of any provision of the Agreement or the extension of its Term; (3) the actual or purported rejection of the Agreement by a trustee in bankruptcy, or any limitation on any claim in bankruptcy resulting from the actual or purported Packet Page 403
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June 1, 2023 G-2 Franchise Agreement, Exhibit G
termination of the Agreement; (4) any waiver, extension, release or modification with respect to any of the obligations of the Agreement guaranteed hereunder or the impairment or suspension of any of City's rights or remedies against Contractor; or (5) any merger or consolidation of the Contractor with any other organization, or any sale, lease or transfer of any or all the assets of the Contractor.

The Guarantor hereby waives any and all rights, benefits and defenses under California Civil Code Sections 2809, 2815, 2819, 2845, 2849 and 2850, and all other rights permitted to be waived by Section 2856(a) including, without limitation, the right to require City to (a) proceed against Contractor, (b) proceed against or exhaust any security or collateral City may hold now or hereafter hold, or (c) pursue any other right or remedy for Guarantor’s benefit, and agree that City may proceed against Guarantor for the obligations guaranteed herein without taking any action against Contractor or any other guarantor or pledgor and without proceeding against or exhausting any security or collateral City may hold now or hereafter hold. City may unqualifiedly exercise in its sole discretion any or all rights and remedies available to it against Contractor or any other guarantor or pledgor without impairing City's rights and remedies in enforcing this Guarantee.

The Guarantor hereby waives and agrees to waive at any future time at the request of City, to the extent now or then permitted by applicable law, any and all rights which the Guarantor may have or which at any time hereafter may be conferred upon it, by statute, regulation or otherwise, to avoid any of its obligations under, or to terminate, cancel, quit or surrender this Guaranty. Without limiting the generality of the foregoing, it is agreed that the occurrence of any one or more of the following shall not affect the liability of the Guarantor hereunder: (a) at any time or from time to time, without notice to the Guarantor, the time for Contractor's performance of or compliance with any of its obligations under the Agreement is extended, or such performance or compliance is waived; (b) the Agreement is modified or amended in any respect; (c) any other indemnification with respect to Contractor's obligations under the Agreement or any security therefore is released or exchanged in whole or in part or otherwise dealt with; (d) any assignment of the Agreement is effected which does not require City's approval; or (e) any termination or suspension of the Agreement arising by reason of a default by Contractor.

The Guarantor hereby expressly waives diligence, presentment, demand for payment or performance, protest and all notices whatsoever, including, but not limited to, notices of non-payment or non-performance, notices of protest, notices of any breach or default, and notices of acceptance of this Guaranty. If all or any portion of the obligations guaranteed hereunder are paid or performed, Guarantor’s obligations hereunder shall continue and remain in full force and effect in the event that all or any part of such payment or performance is avoided or recovered directly or indirectly from City as a preference, fraudulent transfer or otherwise, irrespective of (a) any notice of revocation given by Guarantor or Contractor prior to such avoidance or recovery, or (b) payment in full of any obligations then outstanding.

The Guarantor expressly subordinates and waives its rights to subrogation, reimbursement, contribution or indemnity with respect to performance by Guarantor of the obligations of Contractor guaranteed hereby, until such time as City receives payment or performance in full of all such obligations.

4. Term. This Guaranty is not limited to any period of time, but shall continue in full force and effect until all of the terms and conditions of the Agreement have been fully performed by Contractor, and Guarantor shall remain fully responsible under this Guaranty without regard to the acceptance by City of any performance bond or other collateral to assure the performance of Contractor's obligations under the Agreement. Guarantor shall not be released of its obligations hereunder so long as there is any Packet Page 404
City of Newark/Allied Waste
June 1, 2023 G-3 Franchise Agreement, Exhibit G
claim by City against Contractor arising out of the Agreement based on Contractor's failure to perform which has not been settled or discharged.

5. No Waivers by City. No delay on the part of City in exercising any rights under this Guaranty or failure to exercise such rights shall operate as a waiver of such rights. No notice to or demand on Guarantor shall be a waiver of any obligation of Guarantor or right of City to take other or further action without notice or demand. No modification or waiver by City of any of the provisions of this Guaranty shall be effective unless it is in writing and signed by City and by Guarantor, nor shall any waiver by City be effective except in the specific instance or matter for which it is given.

6. Attorney's Fees. In addition to the amounts guaranteed under this Guaranty, Guarantor agrees to pay actual attorney's fees and all other costs and expenses incurred by City in enforcing this Guaranty, or in any action or proceeding arising out of or relating to this Guaranty, including any action instituted to determine the respective rights and obligations of the parties hereunder.

7. Governing Law; Jurisdiction. This Guaranty is and shall be deemed to be a contract entered into in and pursuant to the laws of the State of California and shall be governed and construed in accordance with the laws of California without regard to its conflicts of laws rules for all purposes, including, but not limited to, matters of construction, validity and performance. Guarantor agrees that any action brought by City to enforce this Guaranty may be brought in any court of the State of California and Guarantor consents to personal jurisdiction over it by such courts. Guarantor appoints the following person as its agent for service of process in California:

Insert Guarantor’s contact person and address
______________________________________
______________________________________
______________________________________
______________________________________

8. Severability. If any portion of this Guaranty is held to be invalid or unenforceable, such invalidity shall have no effect upon the remaining portions of this Guaranty, which shall be severable and continue in full force and effect.

9. Binding on Successors. This Guaranty shall inure to the benefit of City and its successors and shall be binding upon Guarantor and its successors, including a successor entity formed by a merger or consolidation, a transferee of substantially all of its assets, and its shareholders in the event of its dissolution or insolvency.

10. Authority. Guarantor represents and warrants that it has the corporate power to give this guaranty, that its execution of this Guaranty has been authorized by all necessary action under its Articles of Incorporation and by-laws, and that the person signing this Guaranty on its behalf has authority to do so.

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June 1, 2023 G-4 Franchise Agreement, Exhibit G

11. Notices. Notice shall be given in writing, deposited in the U.S. mail, registered or certified, first class postage prepaid, addressed as follows:

To City: City Clerk
City of Newark
City Administration Building
37101 Newark Boulevard
Newark, CA 94560
(510) 578-4000
With a copy to City Contract Manager and City Attorney at the same address.

To Guarantor: Insert Guarantor’s name, address, and contact person ______________________________________
______________________________________
______________________________________
______________________________________
The parties may change the address to which notice is to be sent by giving the other party notice of the change as provided in this Section.

IN WITNESS WHEREOF, Guarantor has executed this Guaranty on the day and year first above written.

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City of Newark/Allied Waste
June 1, 2023 G-5 Franchise Agreement, Exhibit G
Republic Services
By:
___________________________{Insert name}
__________________________ {Insert title}
By:
_________________________ {Insert name}
Corporate Secretary
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EXHIBIT H

CART SPECIFICATIONS
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City of Newark/Allied Waste
June 1, 2023 H-1 Franchise Agreement, Exhibit H

EXHIBIT H

CART SPECIFICATIONS
The Cart specifications provided in this Exhibit H shall pertain to all Carts provided by the Contractor to Customers on the Commencement Date of this Agreement and during the Term of the Agreement.

1. CART DESIGN REQUIREMENTS
A. General
The Carts shall be manufactured by injection or rotational molding and meet the Cart design and performance requirements as specified below. Contractor shall purchase Carts that contain a minimum of 30% post-consumer recycled plastic content. Contractor must submit Cart orders (including material and design specifications, colors and identification marks) to City for City’s written approval prior to submitting the order to the manufacturer.

B. Materials Identification and Decals
Carts or their lids must be in bright, readily identifiable colors to facilitate Customer's ready recognition of Solid Waste, Recyclable Materials, and Organic Materials, subject to City’s written approval as described in this Exhibit. Subject to City approval, Contractor shall display Contractor's name and telephone number using labels, decals, or other acceptable method. Contractor shall provide and attach decals or emboss the Cart number and information describing correct materials and methods for Collection; forbidding disposal therein of Hazardous Waste and describing proper disposal thereof; and forbidding scavenging (through words and international symbols) and describing the penalties therefore under California law or City Municipal Code.

C. Cart Handles
The Cart handles and handle mounts may be an integrally molded part of the Cart body or molded as part of the lid. The Cart handles shall provide comfortable gripping area for pulling or pushing the Cart or lifting the lid. Pinch points are unacceptable.

D. Cart Lid
Each Cart shall be provided with a lid that continuously overlaps and comes in contact with the Cart body or otherwise causes an interface with the Cart body that simultaneously:
• Prevents the intrusion of rainwater, rodents, birds, and flies; • Prevents the emission of odors;
• Enables the free and complete flow of material from the Cart during the dump cycle without interference with the material already deposited in the truck body or the truck body itself and its lifting mechanism;
• Permits users of the Cart to conveniently and easily open and shut the lid throughout the serviceable Packet Page 411
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June 1, 2023 H-2 Franchise Agreement, Exhibit H
life of the Cart;
• The lid handle shall be an integrally molded part of the lid; • The lid (and body) must be of such design and weight that would prevent an empty Cart from tilting backward when flipping the lid open; and,
• The lid shall be hinged to the Cart body in such a manner so as to enable the lid to be fully opened, free of tension, to a position whereby it may rest against the backside of the Cart body.

E. Cart Colors
The Solid Waste, Recyclable Materials, and Organic Materials Carts shall be differentiated by color. The colors shall be colorfast and resistant to fading as a result of weathering or ultraviolet degradation. Color of lids and Cart bodies must be uniform for each Cart type (i.e., Solid Waste, Recyclable Materials, and Organic Materials). Solid Waste Cart bodies and lids shall be black. Recyclable Materials Cart bodies and lids shall be blue. Organic Materials Cart bodies and lids shall be green. Contractor may propose other colors for Cart lids or Cart bodies, which are subject to written approval by the City. For all colors including those prescribed in this paragraph, the Contractor shall obtain written approval from the City for the Cart colors before Contractor’s purchase of the Carts.

F. Identification Markings
All markings on the Carts shall be approved by the City in advance of ordering Carts. An arrow (at least 3 inches by 5 inches) hot stamped in white color shall be placed on the lid, indicating the direction of Cart placement. Prior to ordering Carts, Contractor may suggest alternative identification markings for the City’s review and approval.

In character size of no less than 3/16 inches, the phrase:

PLACE CART WITH ARROW FACING

STREET FOR COLLECTION

COLOQUE EL RECIPIENTE CON LAS FLECHAS

HACIA LA CALLE
Additionally, the SOLID WASTE, RECYCABLES or ORGANIC MATERIALS must be hot stamped in white on the front or sides of the Cart in characters no less than one inch.

2. CART PERFORMANCE REQUIREMENTS
A. General
All Carts shall be designed and manufactured to meet the minimum performance requirements described below.

B. Cart Load Capacity
Depending on the capacity, the Carts shall have a minimum load capacity as noted on the following table without Cart distortion, damage, or reduction in maneuverability or any other functions as required herein.

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City of Newark/Allied Waste
June 1, 2023 H-3 Franchise Agreement, Exhibit H
Cart Size (Gallons) Minimum Load Capacity (Pounds)
96 200
64 130
32/35 70
20 40
C. Cart Durability
Carts shall remain durable, and at a minimum, shall meet the following durability requirements to satisfy its intended use and performance, for the Term of this Agreement:
• Maintain its original shape and appearance;
• Be resistant to kicks and blows;
• Require no routine maintenance and essentially be maintenance free; • Not warp, crack, rust, discolor, or otherwise deteriorate over time in a manner that shall interfere with its intended use;
• Resist degradation from ultraviolet radiation;
• Be incapable of penetration by biting or clawing of household pets (i.e., dogs and cats); • The bottoms of Cart bodies must remain impervious to any damage, that would interfere with the Cart’s intended use after repeated contact with gravel, concrete, asphalt, or any other rough and abrasive surface;
• All wheel and axle assemblies are to provide continuous maneuverability and mobility as originally designed and intended; and,
• Resist degradation by other airborne gases or particulate matter currently present in the ambient air of the City.

D. Chemical Resistant
Carts shall resist damage from common household or Residential products and chemicals. Carts, also, shall resist damage from human and animal urine and feces.

E. Stability and Maneuverability
The Carts shall be stable and self-balancing in the upright position, when either empty or loaded to its maximum design capacity with an evenly distributed load, and with the lid in either a closed or an open position. The Carts shall be capable of maintaining its upright position in sustained or gusting winds of up to 25 miles per hour as applied from any direction. The Carts shall be capable of being easily moved and maneuvered, with an evenly distributed load equal in weight to its maximum design capacity on a level, sloped or stepped surface.

F. Lid Performance
Cart lid assemblies shall meet the following minimum requirements:
• Prevent damage to the Cart body, the lid itself or any component parts through repeated opening and closing of the lid by residents or in the dumping process as intended; Packet Page 413
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June 1, 2023 H-4 Franchise Agreement, Exhibit H
• Remain closed in winds up to 25 miles per hour from any direction. All lid hinges must remain fully functional and continually hold the lid in the original designed and intended positions when either opened or closed or any position between the two extremes; and, • Lid shall be designed and constructed such that it prevents physical injury to the user while opening and closing the Cart.

G. Repairability
Minor cracks, holes, and other damages to hinges, wheels, axle, hardware, and other component parts shall be readily repairable by the contractor personnel. All repairs must restore the Cart to its full functionality to meet the design and performance requirements as set for herein.

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EXHIBIT I
CONTRACTOR’S PROPOSAL
Contractor’s Proposal is on file with the City Clerk
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EXHIBIT J
CONTRACTOR’S FAITHFUL PERFORMANCE BOND
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City of Newark/Allied Waste
June 1, 2023 J-1 Franchise Agreement, Exhibit J

CITY OF NEWARK

CONTRACTOR'S FAITHFUL PERFORMANCE BOND
KNOW ALL MEN BY THESE PRESENTS:

That, ALLIED WASTE SERVICES OF NORTH AMERICA LLC, a California Corporation, as PRINCIPAL, and , a Corporation
organized and doing business by virtue of the laws of the State of California, and authorized for the purpose of making, guaranteeing, or becoming sole surety upon bonds or undertakings required or authorized by the laws of the State of California, as SURETY, are held and firmly bound to the CITY OF NEWARK, a municipal corporation of the State of California, hereinafter called OBLIGEE, in the penal sum of Two Million, Three Hundred Thousand and No/100 Dollars ($2,300,000.00) lawful money of the United States, for the payment of which, well and truly to be made, we and each of us hereby bind ourselves, and our and each of our heirs, executors, administrators, successors, and assigns, jointly and severally, firmly by these presents.

NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH THAT:

WHEREAS, the above bounden PRINCIPAL has entered into a contract on ______________, 2013, entitled " COLLECTION OF SOLID WASTE AND COLLECTION AND PROCESSING OF SOURCE SEPARATED RECYCLABLE MATERIALS, ORGANIC MATERIALS, AND C&D” with the OBLIGEE, to do and perform the following work, to wit: Collect and Transport of Solid Waste, and Collect, Transport, Process, and Dispose of Recyclable Materials, Organic Materials, and C&D generated within the CITY OF NEWARK, in accordance with the contract.

NOW, THEREFORE, if the above bounden PRINCIPAL shall well and truly perform, or cause to be performed each and all of the requirements and obligations of said contract to be performed by said PRINCIPAL, as in said contract set forth, then this BOND shall be null and void; otherwise, it shall remain in full force and effect.

And the said Surety, for value received hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the contract or to the work to be performed thereunder or the Packet Page 419
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June 1, 2023 J-2 Franchise Agreement, Exhibit J
specifications accompanying the same shall in any way affect its obligations on this BOND, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the contract or to the work or to the specifications.

IN WITNESS WHEREOF, said PRINCIPAL and said SURETY have caused these presents to be duly signed and sealed this _____ day of _____, 2013.

By: By:
(PRINCIPAL) (SURETY)
(SEAL) (SEAL)
By: By:

By: By:
(ATTORNEY IN FACT) (ATTORNEY IN FACT)
(SEAL) (SEAL)
(Signatures of Principal and Surety must be acknowledged by a Notary Public) Packet Page 420
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June 1, 2023 J-3 Franchise Agreement, Exhibit J
ENDORSEMENT “A”
TO CONTRACTOR’S FAITHFUL PERFORMANCE BOND
Provided, however, that the Obligee accepts the bond subject to the following conditions and provisions:

1. The bond is for the term beginning June 1, 2023 and ending on June 30, 2033.

2. The bond may be extended for additional term(s) of twelve (12) months at the option of the Surety, by continuation certificate executed by the Surety. At no time will the period of exposure under the bonds exceed twelve (12) months. Notification of Non-Renewal shall be given by Certified Mail to the Obligee no later than one hundred twenty (120) days prior to the expiration date of the bonds. Failure of the Surety to issue a Continuation Certificate or otherwise extend the term, shall not constitute a default under the Performance Bond.

3. In the event of default by the Principal in performance of the contract during the term of the bond, the Surety shall be liable only for the loss to the Obligee due to actual excess costs of performance of the contract up to the termination of the term of the bonds. Maximum aggregate liability of the Surety is limited to the penal sum of the bond.

4. Any suit under the Performance Bond must be instituted before the expiration of two (2) years from the last day of the term of the Performance Bond and any continuation thereof.

If this limitation is made void by any law controlling the contract hereof, such limitation is made void by any law controlling the contract hereof, such limitation shall be deemed to be amended to equal the minimum period of limitation permitted by law.

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EXHIBIT L

MAXIMUM RATES APPROVED BY CITY FOR RATE

PERIOD ONE
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Maximum Rates Approved by City for Rate Period One
(Effective June 1, 2023)
A.
20 GAL 32 GAL 64 GAL 96 GAL
$36.90 $41.00 $72.62 $104.23
$31.36 $34.87 $61.72 $88.57
n/a $24.61 $43.55 $62.48
n/a n/a $10.25 n/a
n/a n/a $6.16 n/a
20 GAL 32 GAL 64 GAL 96 GAL
$55.34 $61.50 $108.94 $156.33
$47.03 $52.26 $92.60 $132.87
n/a $36.91 $65.33 $93.74
n/a n/a $36.91 n/a
n/a n/a $36.91 n/a

EXHIBIT L
All references to Contractor and the Maximum Rates established herein are as a result of City’s contract for collection of garbage, recyclables, and organic materials and shall be deemed Maximum Rates as established by City effective June 1, 2023.

SINGLE‐FAMILY CART SERVICE
Single‐Family Customers include single‐family premises and each unit of a duplex, triplex, townhouse or condominium which receives individual Cart collection services.

CURBSIDE SERVICES

CONTAINER SIZE
(A)    Basic Service
Weekly curbside collection of refuse, recyclables and yard waste in containers provided by the Contractor.

Customers may select their level of refuse service according to the container options available. All customers will be issued a 64‐gallon container for yardwaste and food scraps collection and a 64‐gallon container for recyclables collection.
(B)    Lifeline and Senior Rates

CONTAINER SIZE
(A) Basic Service
(B) Lifeline/Senior Rate
(C) Extra Solid Waste Cart
(D) Extra Yardwaste Cart
(E) Extra Recyclables Cart
*Backyard services are available for an additional cost. Drivers cannot services containers behind locked gates or structures.  Disabled residents may apply for an exemption from the additional fee. (A) Basic Service
(B) Lifeline/Senior Rate
(C) Extra Solid Waste Cart
(D) Extra Yardwaste Cart
(E) Extra Recyclables Cart
*BACKYARD SERVICES
Weekly curbside collection of refuse, recyclables and yard waste in containers provided by the Contractor.

Customers may select their level of refuse service according to the container options available. All customers will be issued a 64‐gallon container for yardwaste and food scraps collection and a 64‐gallon container for recyclables collection. These rates will be available for eligible, low‐income customers demonstrating that they receive assistance under PG&E’s Low Income Rate Payer Assistance program. These rates will also be available for senior citizens, age 65 and above.
(C,D,E)     Additional Containers
Customers may subscribe to additional weekly refuse, yard waste or recycling service by requesting one or more extra Carts in the sizes listed above.