financial stability of the County landfill disposal system. The Newport Beach City Manager was a member of the City Managers' negotiation committee, since our City is directly impacted the most as the only Orange County city which pays landfill costs that the residents in all other cities are billed for.
Following the completion of the negotiations, which included an analysis of the rate structure by a third -party financial consultant and legal review of the agreement by several city attorneys, the final agreement was presented to the County Board of Supervisors for consideration on March 24, 2009. The Board approved the agreement.
Orange County enjoys a unique resource in its landfill system. Managed with long-term capacity and environmental sensitivity as key objectives, the system has provided the County with reliable sites to deposit approximately 4 million tons of solid waste per year at competitive rates. While surrounding counties attempt to find new disposal alternatives at great expense, Orange County has developed long-term capacity at reasonable costs. As a result of the County bankruptcy, the landfill system has been accepting "Imported" solid waste from outside the County as a means to payoff its bankruptcy debt. Pursuant to this agreement, impartation from outside the County will end June 30, 2016, when the bankruptcy debt is retired, resulting in a landfill system with a projected capacity of over 50 years.
For this agreement to take effect, it requires that the cities representing 85 percent of the County's population generating the total County waste to adopt the' agreement within 120 days following the approval of the agreement by the County Board of Supervisors. If the cities representing at least 85% of County waste generation have signed agreements by June 23, 2009, the Director of Orange County Waste and Recycling will execute the agreements. If cities representing less than 85% have signed, the agreements will not be adopted and County staff will return to the Board of Supervisors to present alternative rate strategies. The Orange County City Managers Association unanimously endorses this agreement as beneficial for both the County and all Orange County cities.
Terms of A reement
The new agreement is substantially the same as the current waste disposal agreements, including the County's commitment to provide solid waste disposal services and County indemnification of City liability for closed landfill sites through June 30, 2020. The primary difference and significant change in the new agreement is the disposal rate.
The current disposal rate of $22.00 per ton disposed of in the landfill system has been in effect since 1997 with no increase. Per the new agreement, this disposal rate will increase to $29.95 on July 1, 2010, and then adjust annually in 20-348
Orange CovntRaste Disposal Agreement
April 28, 2009
accordance with increases to the consumer price index (CPI). Even considering the increase, this is a very competitive rate compared to landfills in neighboring counties. For example, the largest Los Angeles County landfill, Puente Hills, is scheduled to implement a rate of $37.62 effective July 1, 2010.
As Newport Beach's commitment towards this agreement, the City will agree to deliver, or cause to deliver, all "controllable" solid waste to the County landfill system. Controllable solid waste does not include hazardous waste or solid waste which residents or businesses choose to haul to a landfill or other disposal facility themselves. This is the same requirement that exists today under the current agreement.
Manaaina Controllable Waste - Newport Beach Program
Commercial
The collection of commercial waste (restaurants, retail outlets, etc.) in the City is accomplished through a Franchised Hauler program. Haulers may enter into a franchise agreement with the City to compete with other private haulers for the collection of commercial waste. The City does not control the .pricing that these private companies charge their customers. The non-exclusive franchise system is an open competitive program that allows the commercial customer to select their service provider based on cost and service levels. As part of the franchise contracts, the haulers are required to deliver their disposable waste to an Orange County landfill, State certified transfer station, recycling facility, or materials recovery facility.
The increase in County landfill fees may result in a rate -increase to the commercial customers, which may lead to an increase to franchise fees paid to the City. As part of the Franchise Agreement, the commercial hauler must pay the City a franchise fee of 16% of hauler's gross receipts. However, given the competitiveness of the private solid waste industry, any increase will probably be minimal.
Residential
On June 10, 2008, the City Council approved a 10 -year agreement with CR&R Inc. for the hauling, processing and disposal of residential solid waste that is collected by City equipmentlpersonnel and delivered to the transfer station at the City Yard. City refuse collection trucks do not dispose of materials at landfills, and therefore, we do not directly pay for disposal cost to the County landfill system. The materials collected are transferred by CR&R trucks to their processing facility where a minimum of 40% by weight are removed for recycling.
The remaining 60% must be disposed of in a County landfill per the terms of the agreement.
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Orange County iNaste Disposal Agreement
April 28, 2009
City Attorney Review:
The City Attorney's office has reviewed this report and the attached agreement Environmental Review:
The City Council's approval of this item does not require environmental review.
Public Notice:
The agenda item has been noticed according to the Brown Act (72 hours in advance of meeting at which the City Council considers the item).
Financial information
According to the agreement with CR&R, they must divert 40% of the materials collected from the Orange County landfill system. Therefore, the agreement states that the City will pay 60% of the current landfill fee ($22.00), or $13.20 per Ion shipped by CR&R from 'the City Yard. The City collects and transfers approximately 3,100 tons per month 'of residential solid waste to the CR&R transfer -trucks at the City Yard.
This agreement between the City and CR&R allows CR&R to request an adjustment to the disposal fee with City Council approval. The contract states:
-...in the event the Aran a County Landfill increases disosal lees the Hauler may a I to 4he C' . for an increase in - fhe Df osa! Fee char ed to the City.
Hauler and i agree that the'decisian to increase the D!s osal Fee cha ed fo the r& shall be within the sole. discretion of the City and the City shall not be QW -bated to increase the amount char d to the QLk."
The current contract with CR&R to ship, process, sort recyclables, and dispose of City waste is approximately $1.4M per year_ ' If the City Council approves a request from CR&R to increase their fee to 60% of the proposed County disposal fee of $29.95 per ton, the contract would increase by approximately $170,000 per year starting in July, 2010.
W*."( A
Omer Bludau Mark Harmo
City Manager General Services Director
Attachments: I. Resolution of the Board of Supervisors
It. Waste Disposal Agreement
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RESOLUTION OF TBE BOARD OF SUPERVISORS OF
-ORANGE COUNTY, CALIFORNIA
March -Z4,2009
WTIEREAS, OC Waste & Recycling manages the County's throe active municipal solid waste-landflUs, 21 former disposal sites and finer household hazardous waft disposal centers;
and.
WHEREAS, among other Bugs, =the purpose of the California Integrated Waste Management Act of 1989 (the "Actj is to reduce., recycle, abd rem solid waste generated in the State to, the =Chnum extent feasible in an efficient and cost effetfive hunnes; and WEERW, the Act provides that local'government agencies may determine the aspects of solid waste handling which are oflocal concern, including, bin not limW to, frequency of collwdqu, means of collection, transportadon, level of services, charges and fees, nature, -location, and extent of providing solid waste handling services; and.
WIWAIE-AS, on AprH ,8,1997; this Board ofSupeMsors.appreved the forms of waste disposal agrocnveats to ire entered into with Orange County cities, soft" districts and waft Wers and established certain fees; -and
WHEREAS. such waste disVosW'agroerdents were effective. on July 1., 1997, and. are schtMod to expim on June 10, 2010; and
WHEMS, currently 31 citiosJOur sanitary distrwts-(which indu& three cities) and 13 wage bauters are parties to waste disposal agrcernents with the Count),, and WHEREAS; presented to this -Board and on Me with the Clerk of the Board are the following revised fbzms.of waste dispose agreements:
a WASTE DISPOSAL AOREEMEqT'hetween the County of Orange and individual Orange County citiesAnd sanitary districts (the -City/Switwy District Roolution No. 0"36, Item No,22 page I of 5
Resokffion of the fterd of Supervisors ofthe testy of Orange approving the Fonns of.waste 1.1spoul Agreements and EsUfthing the Contract Rate and Gate Fees 20-351
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Wake Disposal Aptment'7;
• WASTE DISPOSAL AGREEMENT between dw Co" of Change and certain eligible Facility OpdrRtM (ft "Eligible Facgity Operators") of solid waste in the- Comer ,of Ormw (the "Fadlity Operator Waft'Dispossl Agreement)- WHMEAS,'the-public interest, beallb, and safety are benefitc.d by the approval of the &hn of Waste Disposal Agreements and thc.md*pq oftbe fees provided for herein; and WIMMAS, this Bomd of Supervisors is authorized to establisbfim for the collmdon, handling, and disposal -of solid vw* =d
WHEREMo,pplicable law requires this Bond of Supmisors to held at least one open -chd-public meeting, atwhichwal-orwiften prese"an cmUmd%,m part of areplafly 'W'hed 4 -mea tcg; and
WHEREAS, notice as required by law hasteen published in:a=Wspaper of general WMBW�", this Board .of SuperVism b" qppdtt .'4 pulfiic. wring;.
NOW, THEREFOM BE IT MOLVED that tbis.Board.of SuWvism domhm-eby fwd determine:
1. 'fids -Board of Supxdws (this &9=41 hereby imds and--detemim theS -compliance with1he.CaUmnia Act (,CEQA) &r the Waste
Mposal Agrvements is satisfied by the fipflawitg previously certified vnvfithmental docuiftenft:
• FuW EM $23, certified by Your Board .on Mach 1.0 1994 for the expansion of the 01iWa A10ha Laudfifl.
Final-EIR 588, cert.ifted by your Board on AprR 17,1007, for the cqmsion of 20-352
Futal EIR 604, certified by your Board on August 15, 2006, for the mcpans on ,of -the Fmk R. Bowermen LandfilL
a Final EM 575, certified by your Board ou'Nove.mber 6, 2001 for the 201 Cmmal-Development Plea for the Prima DoAwdm Landfill.
2. This Board hereby finds and detemfmcs that the approval of the form of Waste Disposal AVvements and execution by to Couiq will sm-m the public fi*mt. health, &*ry -and welfhm by providing a more stable, predictable mW reliable supply of muniCipd-solid waste and ft resulting service payrrmzit revenue tet the Couary waft enterprise system, thmby mbling-the Couray to pl%4 manage, operate, and fiamm improvernmts to the system on a mom pradent-wA sound long term, bvOwmlike, basis consistent: with -its, obligations to the Staft and.the holders of obligations secured by its waste disposal system .3. This Board hereby -finds and deternfines that the Waste PisposW AgNmem will further prmate the statutory goals of solid wme reduction, mycling, and ram to the MwelMum extent fodble in an jelftiza and cM effective- manner.
4. 'Ae form of City Waft Diqwsal Agreement is. hemby -approved. The Director of oc wa* a RecyctingGr des,1911= {the "Dlrecwe} js hereby auamized and directed far, in the: nam -end on bdWfef tlw,.CIDUDty to execute the City Wage Disposal Agmment with.Orange County'dfies approving such Agremqai MidedhMover that such city approval and excoution 0mmf sball occur on or before July 22,. 2009.
5. The form of SaWtary District Waste Disposal-AMment is hereby approved_ The Director is hemby.authorized and directedfor, inthe nme.and on behagot the County to execute -the Sanitary Distnet Waste, Disposal Agument with .Page 3 0r5
20-353
Omp Comm B$nitaty Disinc t appxmng such Agreement, provided however. -that smh Smutsry District approval acrd erxec * m thereof shall occur on or before duly 22, 2009.
6, '&e form of Facthty {operator Waste Disposal Apvement is hereby -approve& Mw Director is hereby au&m=W and d.mctcd.for, in the name and or: beW of *:County to O=ft ft F=bV Operator Awwntnt with EhDbie Fmbtyy Odors approving such A
.VeemonL ULd jM however. that such Eligible
Fa4iity Mors appraval-and exteWon dawfshall occur on or before -July 22, 2009..
.,
Subject to pwavwt S and ft terms ofthe Waste Disposd Agreements, the 'Waste Disposal AVe=mt cmntract ratea$205. per On and the post# diWosal. rW X$34.95 per twi,, exclusift oftWll9,00-por tori AD 939 surcharge establishes pursuant to this Board's.Resolugon No. 06.070, are:hewhy.spMved.
Baih the.cm** rate and the Posted d4posQ rate will inmaw m ua lly can July 14 by the C4wwnm Price In (CPI)—Pill Urimn Commas, All Cities -- blmA. an the ;formula c[anWnead:i n the Waste Disposal Affowmft All odw iandmi rate previously approft bythis'Board rtataaui undmgead. t3. The effectivonew of the W&* Disposal AgmcMeM approvedIn p gtaghs 4, 5 azul.: 6 and -the fees-aMraved fn pm"h Tare contingent upon. all cx glifigns to tbie CbmmwmenT Date -(as defined in ft City .Waste DispoSal App ment) `€eing Aid on or beforo July 22, 2009. In the evwA of the failwe-*f4aay cprAtion to the Commm*e mej9Dafc, -the, Direr, -of. OC'Wate & Rsoyclixtg ihall retetrm to this:9oard fet 6vction. >n no. a shall the i Disposal:Agareemettts or Ow fws.%vw l win be;efechve 1ior to July I., 2010,
20-354
T
lI
0 .9,. The Director (or designeey:of OG Waste & Recycling -is hereby authorized acrd dho*d, for and in the name and on behalf of the.County, to do.any and alf•things and -take any and afl-actions and execute any and all cer4fiouies,.agn= ms and WW.doc=enfs which he may de= necessary or advisable in order to consz.mmate the lawful mmai.ion, delivery and'e meat oflbe��.Vsste D sposal.Agre=cros and the: fees -approved in accordance withIhis Resolution.
VamI of $
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IU irmcgoing was pasW and 94opted by the-foll6wingwft of the Orange County Board of Superviws6 co Mm
h.24,.2009P to wit
A%S- Supemsors:
WOES.- -sdPwvisw(*
EVCMED; SiTmimft
AMTAMD', SupuvkcKsX
STATIECWCALkOftNIA
coumy-oPORANGE
BILL CAWBELI, CHFU.9 NORBY, JANETNGUYEN
JQM X W. MOORLACK PAMCIA BATES
I.,VARLF,?W.4BLb0K- C-Jft -Ro
, *--ofthc' n-dQfOramV'County-,:Ciflforminher&y
cedify Ostt copy of'tbb docum"It.has been. deffvtred to thic Clairma.df be ligmA-And that the above and foregoing -Resolution was d* and regularly adopted by the Orange County -Board Qrsupo"bors.
IN WXJWM wF=mp I have heretmxet my hand and seaL.
,z
Clerk �itAc"Soar3
RMIUI[On NO; 09-036
ftcm-No: .30
DAMEMJ BLW4Q0&*f**Beard e&vM4m�
DapuW'
20-356
WASTE DISPOSAL AGREEMENT
Between
THE COUNTY OF ORANGE, CALIFORNIA
and
the
CITY OF NEWPORT BEACH
Dated , 2009
County Authorization Date:
March 24.2009
County Notice Address.
Director
OC Waste & Recycling
300 N. Flower Street, Suite 400
Santa Ana, CA 92703
Exwatkm coo
City Authorization Date.
City Notice Address
20-357
0 TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND IIVTMRETATION
0 Palle
Section1.1 DEFINITIONS..................................................................................................................................2 Section 12INTERPRETATION.........................................................................................................................7 ARTICLE 11
REPRESENTATIONS AND WARRAN'T'IES
Section 2.1 REPRESENTATIONS AND WARRANTIES OF THE CITY........................................................5 Section 2.2 REPRESENTATIONS AND WARRANTIES OF THE COUNTY.................................................9
ARTICLE III
DELIVERY AND ACCEPTANCE OF WASTE AND PROVISION OF DISPOSAL SERVICE Section 3.1
DELIVERY OF WASTE..................................................................................................................9 Section 3.2
PROVISION OF DISPOSAL SERVICES BY THE COUNTY.....................................................1 I Section 3.3
COUNTY RIGHT TO REFUSE WASTE......................................................................................12 Section 3.4
UNINCORPORATED AREA ACCEPTABLE WASTE...............................................................13 Section 3.5
MISCELLANEOUS OPERATIONAL MATTERS.......................................................................14 Section 3.6
OTHER USERS OF THE DISPOSAL SYSTEM..........................................................................14 Section 3.7
COUNTY PROVISION OF WASTE DIVERSION SERVICES...................................................15
ARTICLE IV
CONTRACT RATE
Section 4.1
CHARGING AND SECURING PAYMENT OF CONTRACT RATE.........................................15 Section 4.2
CONTRACT RATE........................................................................................................................15 Section 4.3
RESPONSIBILITY FOR PAYMENT OF THE CONTRACT RATE...........................................21 Section 4.4
BILLING OF THE CONTRACT RATE........................................................................................21 Section 4.5
RESTRICTED RESERVES ....................... _................................................................................... 21 Section 4.6
AUDITED FINANCIAL STATEMENTS......................................................................................22 Section 4.7
ANNUAL UPDATE OF TEN-YEAR FINANCIAL PROJECTION .............................................22
ARTICLE V
BREACH, ENFORCEMENT AND TERNMATION
Section5.1 BREACH........................................................................................................................................23 Section 5.2 CITY CONVENIENCE TERMINATION.....................................................................................23 Section5.3 TERMINATION.............................................................................................................................23 Section5.4 NO WAIVERS................................................................................................................................24 Section 5.5 FORUM FOR DISPUTE RESOLUTION......................................................................................24
ARTICLE VI
TERM
Section 6.1 EFFECTIVE DATE AND TERM..................................................................................................24 Section 6.2 COMMENCEMENT DATE...........................................................................................................25 ExwAien Copy
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ARTICLE VII
GENERAL PROVISIONS
Section 7.1
OPERATION AND MAINTENANCE OF THE DISPOSAL SYSTEM.......................................26 Section 7.2
UNCONTROLLABLE CIRCUMSTANCES GI~NER.ALLY........................................................26 Section7.3
INDEMNIFICATION.....................................................................................................................27 Section 7.4
RELATIONSHIP OF THE PARTIES............................................................................................27 Section7.5
LIMITED RECOURSE......................................................................................................... ....27 Section 7.5
PRE-EXISTING RIGHTS AND LIABILITIES.. ........................................................................... 27 Section 7.7
NO VESTED RIGHTS.................................................................._................:..............................28 Section 7.8
LIABILITY FOR COLLECTION, TRANSPORTATION AND PROCESSING ..........................28 Section 7.9
NO CONSEQUENTIAL OR PUNITIVE DAMAGES..............................»..................................28 Section7.10
AMENDMENTS............................................................................................................................28 Section 7.11
NOTICE OF LITIGATION............................................................................................................28 Section 7.12
FURTHER ASSURANCES...........................................................................................................28 Section 7.13
ASSIGNMENT OF AGREEMENT...............................................................................................28 Section 7.14
INTEREST ON OVERDUE OBLIGATIONS...............................................................................28 Section 7.15
BINDING EFFECT........................................................................................................................28 Section7.16
NOTICES........................................................................................................................................28 F5920N►71.ii
ESTIMATED ANNUAL TONNAGE
APPENDIX 2
CUMULATIVE TONNAGE TARGETS
APPENDDC3
CUMULATIVE CAPITAL COSTS
APPENDIX 4
FORM OF HAULER ACKNOWLEDGEMENT
Execution Copy
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WASTE DISPOSAL AGREEMENT
THIS WASTE DISPOSAL AGREEMENT is made and dated as of the date indicated on the cover page hereof between the County of Orange, a political subdivision of the State of California (the "County"), and the City designated on the cover page of this Agreement, a general law or charter city and political subdivision of the State of California (the "City'.
RECITALS
The County owns, manages and operates a sanitary landfill system for the disposal of municipal solid waste generated by the cities and the unincorporated area within the County (the "Disposal System"). The Disposal System includes three active landfills and four regional household hazardous waste collection centers.
The Disposal System is used for the disposal of municipal solid waste which is not reused, recycled or otherwise diverted from landfill disposal, pursuant to the California Integrated Waste Management Act of 1989 (Division 30 of the California Public Resources Code) (the "Aco.
The City, in the exercise of its police power and its powers tinder the Act, has entered into a franchise or other agreement with or issued permits or licenses to one or more private haulers for the collection and disposal of municipal solid waste generated within the City.
A significant portion of municipal solid waste generated within the City historically has been and currently is delivered by such hauler or haulers to the County for disposal in the Disposal System.
In 1997, the City and the County entered in a waste disposal agreement (the "Original WDA"), pursuant to which the County agreed to provide disposal capacity for waste generated in the City, and the City agreed to deliver or cause the delivery of waste generated in the City to the Disposal System, as more specifically set forth in, and subject to the terms and conditions of the Original WDA.
The Original WDA, as amended, will expire by its terms on June 30, 2010, unless the City and the County agree to renew the Original WDA.
The City and the County desire to enter into this agreement to extend, amend and restate the Original WDA, on the tuns and conditions set forth herein. The County and City acknowledge that the Original WDA shall retuain in full force and effect until the Commencement Date.
The City has determined that the execution of this Agreement by the City will serve the public health, safety and welfare of the City by providing greater disposal rate stability, more predictable and reliable long -tam disposal service, and the continuation of sound environmental management.
The County has determined that the execution by the County of this Agreement will serve the public health, safety and welfare by providing a more stable, predictable and reliable supply of municipal solid waste and the resulting service payment revenue to the Disposal System, thereby enabling the County to plan, manage, operate and finance improvements to the Disposal System on a more prudent and sound long term, businesslike basis consistent with its obligations to the State and the holders of obligations secured by its Disposal System.
Official action approving this Agreement and determining it to be in the public interest and authorizing its execution and delivery was duly taken by the County on the County authorization date indicated on the cover page hereof.
Official action approving this Agreement and determining it to be in the public interest and authorizing its execution and delivery was duly taken by the City on the City authorization date indicated on the cover page hereof.
It is, therefore, agreed as follows:
ExccMion Copp
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ARTICLE I
DEFINITIONS AND INTERPRETATION
Ll
SECTION l.1 DEFINITIONS. As used in this Agreement, the following terms shall have the meanings set forth below.
"Acceptable Waste" means all garbage, refiise, rubbish and other materials and substances discarded or rejected as being spent, useless, worthless or in excess to the owners at the time of such discard or rejection and which are normally disposed of by or collected from residential (single family and multi -family commercial, industrial, governmental and institutional establishments and which are acceptable at Class III landfills under Applicable Law.
"Act" means the California Integrated Waste Management Act of 1989 (Division 30 of the California Public Resources Code), as amended, supplemented, superseded and replaced from time to time. "Agreement" means this Waste Disposal Agreement between the County and the City as the same may be amended or modified from time to time in accordance herewith. "Appendix" paeans an appendix to this -Agreement, as the same may be amended or modified from time to time in accordance with the terms hereof
"Applicable Law" means the Act, the Orange County Code, CERCLA, RCRA, CEQA, any Legal Entitlement and any federal or state rule, regulation, requirement, guideline, permit, action, determination or order of any Governmental Body having jurisdiction, applicable from time to time to the siting, design, permitting, acquisition, construction, equipping, financing, ownership, possession, operation or maintenance of the Disposal System, the transfer,, handling, transportation and disposal of Acceptable Waste, Unacceptable Waste, or any other transaction or matter contemplated hereby (including any of the foregoing which concern health, safety, fire, environmental protection, mitigation monitoring plans and building codes). "Board" means the California Integrated Waste Management Board. "Capital Costs" means all costs of the Disposal System that are classified as capital costs for purposes of the ' budget of the Department in accordance with procedures established by the County of Orange Auditor - Controller in compliance with the California State Controller's Manual, including but not limited to all of the categories of costs of the Disposal System reported as "Buildings and Improvements, and Infiastructure" (Object Code 4200) or "Equipment" (Object Code 4000) in the County of Orange — Chart of Accounts, or any successor accounting or reporting system utilized by the County.
"CEQA" means the California Environmental Quality Act, codified at Cal. Pub. Res. Code Section 21000 et seq. as amended or superseded, and the regulations promulgated thereunder. "CERCLA" means the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.A. Section 9601 et seq., as amended or superseded, and the regulations promulgated thereunder. "Change in Law" means any of the following events or conditions which has a material and adverse effect on the performance by the parties of their respective obligations under this Agreement (except for payment obligations), or on the siting, design, permitting, acquisition, -construction, equipping, financing, ownership, possession, operation or maintenance of the Disposal System or other matters to which Applicable Law applies:
(1) the enactment, adoption, promulgation, issuance, material modification or written change in administrative or judicial interpretation on or after the Commencement Date of any Applicable Law (other than Applicable Law enacted by the County);
(2) the order or judgment of any Governmental Body (other than the County), on or after the Commencement Date, to the extent such order or judgment is not the result of will W or negligent action, error or FACCutia" C4"
20-361
omission or lack of reasonable diligence of the County or of the City, 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; or
(3) the denial of an application for, delay in the review, issuance or renewal of, or suspension, termination, interruption, imposition of a new of more stringent condition in connection with the issuance, renewal or failure of issuance or renewal on or after the Commencement Date of any Legal Entitlement to the extent that such denial, delay, suspension, termination, interruption, imposition or failure materially and adversely interferes with the performance of this Agreement, if and to the extent that such denial, delay, suspension, termination, interruption, imposition or failure is not the result of willful or negligent action, stet or omission or a lack of reasonable diligence of the County or of the City, 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 denial, delay, suspension, termination, interruption, imposition or failum shall not be construed as such a willful or negligent action, error or omission or lack of reasonable diligeacm A "Change in Law" shall include but not be limited to any new or revised requirements relating to the fuading or provision of disposal services, including but not limited to any regulations for disposal operations or activities associated with the remediation, closure, funding or monitoring of closed sites with respect to facilities comprising the Disposal System, or facilities which the County previously utilized to provide waste disposal, transfer, recycling, processing or other waste related activities. "City" means, as applicable, the city or Sanitary District designated on the cover page of this Agreement and party to this Agreement.
"City Acceptable Waste" means all Acceptable Waste which was originally discarded by the first generator thereof within the geographical limits of the City, and Residue from the foregoing wherever produced, whether within or outside the City (or Tonnage equivalencies of such Residues, as and to the extent provided in subsection 3.1(C) hereof).
"Commencement Date" means the date on which the obligations of the parties hereto commenm established as provided in Section 6.2(B) hereof.
"Contract Date" means the first date on which this Agreement has been executed by both parties hereto. "Contract Rate" has the meaning specified in Section 4.2 hereof. "Contract Year" means the fiscal year commencing on July 1 in any year and ending on June 30 of the following year.
"Controllable Waste" means all City Acceptable Waste with respect to which the City has the legal or contractual ability to determine the disposal location therefor and which is:
(1) Non -Recycled City Acceptable Waste;
(2) not generated from the operations of the Governmental Bodies which, under Applicable Law, have the independent power to arrange for the disposal of the waste they generate; and (3) collected and hauled by Franchise Haulers.
"County" means the County of Orange, a political subdivision of the State of California and party to this Agreement -
"County Plan" means the integrated waste management plan of the County approved by the Board pursuant to the Act as in effect from time to time.
EKeaiflon Copy
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"County Acceptable Waste" means Acceptable Waste generated in the County. "County OC Waste & Recycling Enterprise Fund" means the waste management enterprise fund established and managed by the County pursuant to Section 25261 of the Government Code separate from its other funds and accounts for receipts and disbursements in connection with the Disposal System. "County -wide Recycling Services" has the meaning set forth in subsection 3.7(A) hereof. "Cumulative Tonnage Target" for any given Contract Year means the amount specified in Appendix 2 hereto with respect to such Contract Year.
"Department" means OC Waste & Recycling, and any agency, department or other Governmental Body which succeeds to the duties and powers thereof.
"Disposal Agreements" means each of the waste disposal agreements entered into between the County and any city within the County, Sanitary District or operator of any Transfer Station located in the County in accordance herewith-
"Disposal
erewith"Disposal Services" means the solid waste disposal services to be provided by the County pursuant to the Service Covenant and otherwise hereunder.
"Disposal System" means the Orange County Waste Disposal System which includes solid waste disposal operations at three active landfills (Olinda Alpha, Frank R Bowerman and Prima Deshecha); four regional Household Hazardous Waste Collection Centers; as well as services, such as monitoring and other activities, at closed refuse stations formerly operated by the County, as appropriate under Applicable Law. "Environmental Fund" means the fund or funds held by the County to pay unanticipated costs of environmental mitigation, remediation or liability.
"Franchise Hauler" means any hauler or collector who provides Acceptable Waste collection services within the City pursuant to, or under authority granted by, a permit, contract, franchise or other agreement with the City. The term Franchise Hauler includes the City itself if Acceptable Waste collection and transportation services are provided directly by City operated municipal collection service. "Governmental Body" means any federal, State, county, city or regional legislative, executive, judicial or other governmental hoard, agency, authority, commission, administration, court or other body, or any officer thereof acting within the scope of his or her authority.
"Hazardous Substance" has the meaning given such term in CERCLA, the Carpenter -Presley -Tanner Hazardous Substance Account Act (California Health and Safety Code Section 25300 et seq.), and Titles 22 and 26 of the California Code of Regulations and other regulations promulgated thereunder. "Hazardous Waste" means (a) any waste which by reason of its quality, concentration, composition or physical, chemical or infectious characteristics may do either of the following: cause, or significantly contribute to, an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness, or pose a substantial threat or potential hazard to human health or the environment, or any waste which is defined or regulated as a hazardous waste, toxic substance, hazardous chemical substance or mixture, or asbestos under Applicable Law, as amended from time to time including, but not limited to: (1) the Resource Conservation and Recovery Act and the regulations contained in 40 CFR Parts 260-281; (2) the Toxic Substances Control Act (15 U.S.C. Sections 2601 et seq.) and the regulations contained in 40 CFR Parts 761-766; (3) the California Health and Safety Code, Section 251I7 (West 1992 & Supp. 1996}; (4) the California Public Resources Code, Section 40141 (West 1996); and (5) future additional or substitute Applicable Law pertaining to the identification, treatment, storage or disposal of toxic substances or hazardous wastes; or (b) radioactive materials which are source, special nuclear or by-product material as defined by the Atomic Energy Act of 1954 (42 U.S.C. Section 2011 et seq.) and the regulations contained in 10 CFR Part 40.
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"Imported Acceptable Waste" means Acceptable Waste that is generated outside of the geographical boundaries of the County and delivered to the Disposal System, "Independent Haulers" means those waste collectionlhauler companies primarily engaged as a principal business in the collection and transportation of municipal solid waste generated in the County of Orange which are not obligated to deliver County Acceptable Waste to the Disposal System pursuant to a fi=cbise, contract, permit or other authorization with a city in the County.
"Initial Term" has the meaning specified in Section 6.1(A) hereof. "Legal Entitlement" means all permits, licenses, approvals„ authorizations, oonsents and entitlements of whatever kind and however described which are required wider Applicable Law to be obtained or maintained by any person with respect to the Disposal System or the performance of any obligation under this Agreement or the matters covered hereby.
"Legal Proceeding" means every action, suit, litigation, arbitration, administrative proceeding, and other legal or equitable proceeding having a bearing upon this Agreement, "Loss -and -Expense" means any and all loss, liability, obligation, damage, delay, penalty, judgment, deposit, cost, expense, claim, demand, charge, tax, or expense, including all fees and costs. "Net Import Revenues" has the meaning ascribed thereto in Section 3.6(E). "Non -Recycled City Acceptable Waste" means all City Acceptable Waste other than Recycled City Acceptable Waste.
"Overdue Rate" means the maximum rate of interest permitted by the laws of the State, if applicable, or the prime rate established from time to time by the Bank of America, N.A. or its successors and assigns, plus 2°%, whicbever is lower.
"Participating City" means any city or Sanitary District executing a Disposal Agreement in accordance with Section 3.6(A) hereof and tweeting all requisite corrditions to the Commencement Date thereof. `Tian of Adjustment" means the County's Modified Second Amended Plan of Adjustment, confirmed by the United States Bankruptcy Court Central District of California in that Conformed Order Confirming Modified Second Amended Plan of Adjustment, fled May 17, 1946.
"Posted Disposal Rate" means the per ton tipping fee charged by the County for the disposal of solid waste at the Disposal System by parties which are not entitled to disposal service at the Contract Rate pursuant to this Agreement -
"Prohibited Medical Waste" means any medical or infectious waste prohibited or restricted under Applicable Law from being received by or disposed at the Disposal System. "Qualified Household Hazardous Waste" means waste materials determined by the Board, the Department of Health Services, the State Water Resources Control Board, or the Air Resources Board to be:
(1) Of a nature that they must be listed as hazardous in State statutes and regulations; (2) Toniclignitabldeorrosive reactive, and
(3) Carcinogenic!mutagenic/teratogenic;
which are discarded from households as opposed to businesses. Qualified Household Hazardous Waste shall not include Unacceptable Waste.
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"Recycled City Acceptable Waste" means any otherwise Controllable Waste which is separated from Acceptable Waste by the generator thereof or by processing and which is "recycled" within the meaning of Section 40180 of the Public Resources Code.
"Renewal Term" has the meaning specified in Subsection 6.1(B) hereof. "Residue" means any material remaining from the prooessing, by any means and to any extent, of City Acceptable Waste or Recycled City Acceptable Waste; provided, however, that Residue shall not include minimal amounts of material remaining after such processing (which minimal amounts shall in no event exceed 10% of the amount of such City Acceptable Waste or Recycled City Acceptable Waste prior to processing). "Resource Conservation and Recovery Act" or "RCRA" means the Resource Conservation and Recovery Act, 42 U.S.C-A. Section 6401 et seq., as amended and superseded. "Restricted Reserves" has the meaning specified in Section 4.5. "Sanitary Districts" means the sanitary districts in the County formed pursuant to the Sanitary District Act of 1923, codified at Cal. Ann. Health & Safety Code Section 6400 et seg., as amended, supplemented, superseded and replaced from time to time.
"Self -Hauled Waste" means City Acceptable Waste collected and hauled by Self -Haulers. "Self -Hauler" means any person not engaged commercially in waste haulage who collects and hauls Acceptable Waste generated from residential or business activities conducted by such person. "Service Coordinator" means the service coordinator for either party designated pursuant to subsection 3.5(C) hereof.
"Service Covenant" means the covenants and agreements of the County set fortb in Sections 3.2 and 33 hereof.
"Source -Separated Household Hazardous Waste" means Qualified Household Hazardous Waste which has been segregated from Acceptable Waste originating or generated within the geographical jurisdiction of the City at the source or location of generation.
"Source -Separated Household Hazardous Waste Disposal System" means the collection centers, facilities, contracts and other arrangements owned or administered by the County for the receipt, handling and disposal of Source -Separated Household Hazardous Waste.
"State" means the State of California.
`term" shall mean the Term of this Agreement
` fon" means a "short ton" of 2,000 pounds.
-transfer Station" means any materials recovery facility, composting facility, intermediate processing facility, recycling center, transfer station or other waste handling or management facility to which solid waste collected for the City is delivered for processing before disposal in the Disposal System "Unacceptable Waste" means Hazardous Waste; Hazardous Substances; Prohibited Medical Waste; Qualified Household Hazardous Waste separated from Acceptable Waste; explosives, ordnance, highly flammable substances, and noxious mataials and lead -acid batteries (except if delivered in minimal quantities); drums and closed oontainers; liquid waste, oil, human wastes; machinery and equipment from commercial or industrial sources, such as hardened gears, shafts, motor vehicles or major components thereof, agricultural equipment, trailers, marine Exeaaioa Copy
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vessels and steel cable; hot loads; and any waste which the Disposal System is prohibited from receiving under Applicable Law.
"Uncontrollable Circumstance" means any act, event or condition affecting the Disposal System, the County, the City, or any of their Franchise Haulers, contractors or suppliers to the extent that it materially and adversely affects the ability of either party to perform any obligation under the Agreement (except for payment obligations), if such act, event or condition is beyond the reasonable control of and is not also the result of the willful or negligent act, error or omission'or failure to exercise reasonable diligence on the part of the party relying thereon as justification for not performing an obligation or complying with any condition required of such party under the Agreement; provided, however, that the contesting in good faith or the failure in good faith to contest such action or inaction shall not be construed as willful or negligent action ora lack of reasonable diligence of either party. Examples of Uncontrollable Circumstances are:
(1) an act of God, landslide, lightning, earthquake, fire, explosion, flood, sabotage or similar occurrence, acts of a public enemy, extortion, war, blockade or insurrection, riot or civil disturbance; and (2) a Change in Law.
1 "Unincorporated Area" means those portions -of the County which are not contained within the jurisdictional boundaries of incorporated cities.
"Unincorporated Area Acceptable Waste" means Acceptable Waste originating from or generated within the Unincorporated Area.
"Unrestricted Reserves" means cash and other reserves of the Disposal System which are not Restricted Reserves.
"Waste Disposal Covenant" means the covenants and agreements of the City set forth in Section 3.1 hereof.
SECTION 1.2 UMMLLTATION: in this Agreement, unless the context otherwise requires:
(A) References Here . Ibc terms "hereby", "hereof',' herein", "hereunder" and any similar terms refer to this Agreement, and the term "hereafter" means after, and the term "heretofore" means before, the Contract Date.
(B) Gender and Plurality. Words of the masculine gender mean and include correlative words of the feminine and neuter genders and words importing the singular number mean and include the plural number and vice versa.
(C) P Words importing persons include firms, companies, associations, general partnerships, limited partnerships, trusts, business trusts, corporations and other legal entities, including public bodies, as well as individuals.
(D) HmEma. The table of contents and any headings preoeding the text of the Articles, Sections and subsections of this Agreement shall be solely for convenience of reference and shall not constitute a part of this Agreement, nor shall they affect its meaning, construction or effect (E) No Third Party Beaefidaries. Nothing in this Agreement is intended to confer on haulers or any other person other than the parties hereto and their respective permitted successors and assigns hesermder any rights or remedies under or by reason of this Agreement (F) watts This Agreement may be executed in any number of original counterparts.
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0 (G) Applicable Law. This Agreement shall be governed by and construed in accordance with the Applicable Laws of the State of California.
(H) Severability. If any clause, provision, subsection, Section or Article of this Agreement shall be ruled invalid by any court of jurisdiction; then the parties shall: (1) promptly meet and negotiate a substitute for such clause, provision, subsection, Section or Article which shall, to the greatest extent legally permissible, effect the intent of the parties therein; (2) if necessary or desirable to agcomplish item (1) above, apply to the court having declared such invalidity for a judicial construction of the invalidated portion of this Agreement; and (3) negotiate such changes in, substitutions for or additions to the remaining provisions of this Agreement as may be necessary in addition to and in conjunction with items (1) and (2) above to effect the intent of the parties in the invalid provision. The invalidity of such clause, provision, subsection, Section or Article shall not affect any of the remaining provisions hereof, and this Agreement shall be construed and enforced as if such invalid portion did not exist, unless such invalidity frustrates the underlying primary purpose of the Agreement. (I) I tgmatiorr:JPresesvation of Certain Ajuoma nts. This Agreement contains the entire agreement between the parties with respect to the transactions ' contemplated hereby. This Agreement shall completely and fully supersede all prior understandings and agreements between the Parties with respect to such transactions; provided, however, that this Agreement shall not supersede the following agreements:
1) MOU, dated March 10, 1992, between the City of Brea and the County of Orange regarding the Olinda Alpha Landfill as amended on April 6,1993 and November 29,1994; 2) MOU, dated May 11, 1995, between the City of Brea and the County of Orange regarding importation of out -of -County waste to the Olinda Alpha Landfill; 3) Settlement Agreement, dated August 1, 1984, between the City of Irvine and the County of Orange regarding the Bee Canyon Landfill (currently called Frank R. Bowerman Landfill); 4) MOU, dated May 16, 1995, between the City of Irvine and the County of Orange regarding impartation of out -of -County waste to the Frank IL Bowerman Landfill; 5) MOU, dated September 12, 1995, and amended November 21, 1995, between the City of San Juan Capistrano and the County of Orange regarding importation of out -of -County waste to the Prima Deshecha Landfill;
6) MOU, dated July 1, 1997, between the City of San Clemente[, the Orange County Flood Control District] and the County of Orange regarding the Prima Deshecha Landfill; and 7) Cooperative Agreement, dated August 15, 2006, between the County and the City of Irvine.
(J) Recitals. The recitals to this Agreement are not intended to bind the parties hereto. In the event of a conflict between the recitals and the operative provisions of this Agreement, the operative provisions shall prevail. The recitals shall not be used to interpret the provisions of the Agreement.
ARTICLE 11
REPRESENTATIONS AND WARRANTIES
SECTION 2.1 REPRESENTATIONS AND WARRANTIES OF THE CITY. The City represents and warrants that:
(A) Existence. The City is a general law or charter city validly existing under the Constitution and laws of the State.
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0 (B) Due Authoriz�Aon. The City has duly authorized the execution and delivery of this Agreement, and this Agreement has been duly executed and delivered by the City.
SECTION 2.2 flEMSENTATIONS AND WARRANTIES OF THE COUNTy The County represents and warrants that:
(A) Existcnce. The County is a political subdivision of the State of California validly existing ander the Constitution and laws of the State.
(B) Due Authorization. The County has duly authorized the execution and delivery of this Agreement, and this Agreement has been duly executed and delivered by the County.
ARTICLE III
DELIVERY AND ACCEPTANCE OF WASTE
AND PROVISION OF DISPOSAL SERVICE
SECTION 3.1 DELIVERY OF WASTE.
(A) Waste DiEgsal Covenant Subject to the occurrence of the Commencement Date and throughout the Term of this Agreement, the City shall exercise all legal and contractual power and authority which it may possess from time to time to deliver or cause the delivery of all Controllable Waste to the Disposal System in accordance herewith.
(B) Recycled CityA,pcentable Waste. The parties hereto acknowledge the responsibility of the City to meet the recycling and landfill diversion goals contained in the Act. Nothing in this Agreement is intended or shall be interpreted to prohibit or impair the ability of the City to meet such responsibilities, or to restrict the right of the residents, businesses or organizations in the City to practise source separation, recycling, composting or'other materials recovery activities, or to restrict the right of the City to conduct, sponsor, encourage or require such activities in any form. No reduction in the amount of Controllable Waste generated in the City and delivered to the Disposal- System by or on behalf of the City which may result from any such source separation or recycling program shall cause the City any liability hereunder (other than potential adjustment to the Contract Rate to the extent provided in Article TV hereof) and shall not constitute a breach of this Agreement. (C) Waste Delivered to Transfer 5lation. All Residue from any processing of Controllable Waste by materials recovery, composting, recycling or other means, wherever performed, shall constitute Controllable Waste and be subject to the Waste Disposal Covenant. Where City Acceptable Waste is processed at a facility which concurrently processes other Acceptable Waste in a manner which produces commingled residue which cannot be traced to a geographic source, generic residues from such facility in Tonnage equal to the residues that would have been produced had City Acceptable Waste only been processed at the facility shall constitute Controllable Waste and be subject to the Waste Disposal Covenant. Any City Acceptable Waste or material derived or segregated therefrom which is held in storage and asserted by the possessor thereof to constitute Recycled City Acceptable Waste awaiting sale or distribution to the secondary materials markets shall constitute Controllable Waste if, when and to the extent that the storage or diversion thereof can be reasonably deemed to constitute an evasion of the Waste Disposal Covenant rather than generally recognized, accepted and prevailing practice in the Southern California materials recovery and recycling industry conducted in accordance with Applicable Law. In order for the owner and/or operator of a transfer station to be, entitled to deliver Acceptable Waste from a Participating City to the Disposal System for the Contract Rate as provided in Article IV, such owner and/or operator must execute a direct agreement with the County, acknowledging and agreeing to comply with the obligation of the Participating City to cause the delivery of all Controllable Waste to the Disposal System pursuant to this Agreement In addition, the County shall be authorized to implement procedures to determine if Acceptable Waste delivered by the owners or operators of Transfer Stations is entitled to utilize the Disposal System for the Contract Rate. Such. procedures may include requiring Transfer Stations to certify, under penalty of perjury, the source of any such Acceptable Waste. If necessary, the County may require that, in order to qualify for use of the Disposal System for the Contract Rate, Transfer Stations must deliver Controllable Waste in loads containing only Controllable Waste, and not commingled with Acceptable Waste from entities which are not Participating Cities or Participating Independent Haulers.
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(D) Power to Obligate Waste Disposal and Comply with this Agreement. On or before the Commencement Date, (i) any City fianchise, contract, lease, or other agreement which is lawfully in effect relating to or affecting Controllable Waste sball provide, or shall have been amended to provide, that the City shall have the right without material restriction on and after the Commencement Date to direct the delivery of all Controllable Waste to a disposal location selected by the City (whether or not such Controllable Waste is delivered to a transfer station as an intermediate step prior to landfill disposal) and otherwise to comply with its obligations under this Agreement with respect to Controllable Waste and Franchise Haulers, and (ii) the City shall designate the Disposal System as the disposal location pursuant to such franchise, contract, lease or other agreement. On and after the Commencement Date and throughout the Term of this Agreement the City (a) shall not enter into any franchise, contract, lease, agreement or obligation, issue any permit, license or approval, or adopt any ordinance, resolution or law which is materially inconsistent with the requirements of the Waste Disposal Covenant, and (b) shall maintain non-exclusive or exclusive franchises or other contractual arrangements over any City Acceptable Waste which, as of the Contract Date, is subject to non-exclusive or exclusive franchise or other contractual arrangements. The City agrees that the County shall be a third party beneficiary of the obligation of Franchise Haulers to deliver Controllable Waste to the Disposal System, and may directly enforce such obligation through any legal means available. The City shall notify in writing each Franchise Hauler of the County's third party beneficiary rights. (E) Waste Flow Enforcement. (1) The City, in cooperation with the Department, shall establish, implement, carry out and enforce a waste flow enforcement program which is sufficient to assure the delivery of all Controllable Waste to the Disposal System pursuant to and in accordance with the Waste Disposal Covenant for disposal at the times and in the manner provided herein. The waste flow enforcement program shall consist of amending City fianchises, permits or authorizations with all Franchise Haulers, to the extent required by this Section and to the extent allowed by law, and shall include in addition, to the extent necessary and appropriate in lire circumstances to assure compliance with the Waste Disposal Covenant, but shall not be limited to; (i) licensing or permitting Franchise Haulers, upon the condition of compliance with the Waste Disposal Covenant, (ii) providing for and taking appropriate enforcement action under any such franchise, license, or permit, such as but not limited to the suspension, revocation and termination of collection rights and privileges, the imposition of fines or collection of damages, and the exercise of injunctive relief against non -complying Franchise Haulers and (iii) causing any Transfer Station to which Controllable Waste is delivered for processing to deliver certification, under the penalty of perjury, of the amounts of Controllable Waste received and Residue remaining from processing at such Transfer Station.
(2) The City acknowledges and agrees that in the event of a breach of the Waste Disposal Covenant by the City, the City shall pay the County an amount equal to the amount that the City would have been required to pay to the County had the Waste Disposal Covenant not been breached, whirr shall be calculated by (x) subtracting the number of tons actually delivered during the month(s) of the breach from the number of tons that were delivered during the same months) closest in time when there was no such breach, ever if such month(s) closest in time was prior to the Tenn, and (y) multiplying such amount by the Contract Rate in effect at the time of such breach (or any higher rate with respect to which the County has provided notice pursuant to Section 4.2). In the event that the County terminates the Waste Disposal Agreement as a result of such breach, the damages due as a result of such termination shall be equal to (aa) the average monthly deliveries by the City for the twelve months prior to the commencement of the breach multiplied by (bb) the Contract Rate in effect at the time of such breach (or any higher rate with respect to which the County has provided notice pursuant to Section 4.2), multiplied by (cc) the number of months that would have remained in the Term of the Agreement had the termination not occurred. The parties recognize that if the City fails to meet its obligations hereunder, the County will suffer damages and that it is and will be impracticable and extremely difficult to ascertain and determine the exact amount of such damages.
Therefore, the parties agree that the damages specified above represent a reasonable estimate of the amount of such damages, considering all of the circumstances existing of the date hereto, including the relationship of the sums to the range of harm to the County that reasonably could be anticipated and anticipation that proof of actual damages would be costly or inconvenient. In signing this Agreement, -each party specifically confirms the accuracy of the statements made above and the fact that each party had ample opportunity to consult with legal counsel and obtain an explanation of this liquidated damage provision at the time that this Agreement was made. (F) Meal ChallenM to Franchise System The City shall use its best efforts to preserve, protect and defend its right to exercise and comply with the Waste Disposal Covenant against any challenge thereto, legal or otherwise (including any lawsuits against the City or the County, whether as plaintiff or defendant), by a 10 Execution Copy
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Franchise Hauler or any other person, based upon breach of contract, violation of law or any other legal theory. The City shall bear the cost and expense of any such Legal Proceeding or other challenge. In the event any such Legal Proceeding relating to the Waste Disposal Covenant or the City's exercise thereof establishes in a final determination that such covenant or exercise thereof is void, unlawful or unenforceable, or if any Franchise Hauler fails to deliver Controllable Waste to the Disposal System in breach of its franchise with the City on the grounds that a judicial determination made by any court or other Applicable Law has rendered its obligation to deliver Controllable Waste to the Disposal System void, unlawful or unenforceable on any legal grounds, with the result that actual waste deliveries to the Disposal System fall below the Cumulative Tonnage Targets, the County shall be entitled to avail itself of the remedies described in Section 4.2(B) hereof. (G) Franchise_ Haulers. The City shall compile and provide the Department with the following information concerning all Franchise Haulers: name, address and phone number; identification number, area of collection and transportation; and fianchise and permit terms. (H) Waste Information Svstem The City shall cooperate with the Department in collecting information and otherwise monitoring Franchise Haulers in order to assure compliance with this Agreement. Such information may include, to the extent practicable, data pertaining to Controllable Waste collected, transported, storroared, processed sed o Franchise nd disposed of, Recycled cy led CityAcceptableWaste collected, transported, stored, processed and disposed of; se, permit or license terms, collection areas, transportation routes and compliance with Applicable Law; and all other information which may reasonably be requires by the Department in connection with this Agreement. The City agrees to include in any remised franchise, contract, license or permit or other authorization granted to Franchise Haulers an obligation of the Franchise Hauler to provide to the County. information relating to the Controllable Waste collected by such Franchise Hauler, including origins from which such Controllable Waste was collected, tonnage by type of load (residential, commercial, roll -off box), customer service levels, tonnage delivered by transfer station or material recovery €anility utilized, and other related information.
(I) Cily Ac Affwaiiux The City agrees to carry out and fulfill its responsibilities under this Agreement and Applicable Law so as to permit full and timely compliance by the County with.its covenants and agreements with the State. In particular, the City agrees not to conduct, authorize or permit any disposal services for Controllable Waste to be provided in competition with the Disposal Services provided by the County•herezmder, and not to take or omit to take any action with respect to Controllable Waste or its collection, transportation, transfer, storage, treatment or disposal that may materially and adversely affect the County's ability to achieve such timely compliance. Notwithstanding the foregoing, the City shall not be required to deny any permit or license or refuse to grant any approval while exercising its police powers. (n No &gbt of Waste Substitution. Nothing in this Agreement shall authorize or entitle the City to deliver or cause. the delivery to the Disposal System of Acceptable Waste originating from or generated outside the jurisdiction of the City, nor obligate the County to receive or dispose of any such Acceptable Waste.
The City shall not assign in whole or in part its right to deliver or cause to be delivered Controllable Waste to the County hereamder, and shall not permit any Acceptable Waste originating from or generated outside the jurisdiction of the City to be substituted for Controllable Waste for any purpose hereunder. (IC) Annexations anRcshucturiag It is the intention of the parties that this Agreement and the obligations and rights of the City hereunder, including particularly the Waste Disposal Covenant and the Contract Rate, shall, to the extent permitted by Applicable Law, extend to any territory annexed by the City (or any territory with respect to which the City assumes, after March 30, 2008, solid waste management responsibility from a Sanitary District or other public entity) and shall bind any successor or restructured Governmental Body which shall assume or succeed to the rights of the City under Applicable Law.
SECTION 3.2 MMSION OF DISPOSAL SERVICES BY THE COUNfY.
(A) Service v rant. Commencing on the Commencement Date, the County shall provide or cause the provision of the service of (1) receiving and disposing of all Controllable Waste at the Disposal System (or such other facilities, including transfer stations, as the County may determine to use), (2) disposing m accordance with subsection 3.2(C) hereof of Controllable Waste whicb, at any time and for any reason, is in excess L1
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0 of the disposal capacity of the Disposal System, and (3) in accordance with subsection 3.3(C) hereof; disposing of Unacceptable Waste inadvertently accepted at the Disposal System. The County, to the maximum extent permitted under Applicable Law, shall use its best efforts to keep the Olinda Alpha, Prima Deshecha and Frank R. Bowerman Landfills open for the receipt of waste for disposal or transfer of Controllable Waste pursuant to this Agreement.
The County shall do and perform all acts and things which may be necessary or desirable in connection with its covenants in this subsection, including without limitation all plannin& development, administration, implementation, construction, operation, maintenance, management, financing and contract work related thereto or undertaken in connection therewith. The County shall exercise all reasonable efforts to minimize the costs incurred in complying with the Service Covenant consistent with its responsibilities hereunder and under this Agreement, Applicable Law and prudent solid waste management practice and environmental considerations. (B) Particular Facilities. The Department and the City shall consult and cooperate in determining whether and to what extant from time to time other landfills other than that primarily used by the City shall be utilized to receive Controllable Waste. The Department shall immediately advise the City by telephone of any situation, event or circumstance which results in the partial or complete inability of the County to receive Controllable Waste at any particular landfill within the Disposal System, its effect on the County's ability to perform its obligations hereunder, and the County's best estimate of the probable duration. The Department shall conium such advice in writing within 24 hours of the occurrence of any such inability. The County shall use its best efforts to resume normal operation of the landfill primarily used by the City as soon as possible. In the event of a temporary material increase in average daily deliveries of Controllable Waste firm the City which the County reasonably believes could result in the permitted daily disposal capacity limit to be exceeded with respect to a particular landfill within the Disposal System, the County shall have the right to redirect the increased Controllable Waste to another landfill within the. Disposal System for the duration of the increase in average daily deliveries; provided, however, that in such circumstances the County shall utilize reasonable efforts to fust redirect waste which is not Controllable Waste.
(C) Compliance yah Service Covenant Not Excused for any Reason. Commencing on the Commencement Date, the obligations of the County to duly observe and comply with the Service Covenant shall apply continuously and without interruption for the Term of this Agreement. In the event that any Change in Law or other Uncontrollable Circumstance impairs or precludes.compliance with the Service Covenant by the means or methods then being employed by the County, the County shall implement alternative or substitute means and methods to enable it to satisfy the terms and conditions of the Service Covenant in the event that a Change in Law precludes the County from complying with such. covenants with the means or methods then being employed and from utilizing any alternate or substitute means or methods of compliance, the County shall continuously use all reasonable efforts to effectuate executive, legislative or judicial change in or relief from the applicability of such law so as to enable the County lawfully to resume compliance with such covenants as soon as possible following the Change in Law.
SECTION 3.3 COUNTY RIGHT TO REFUSE WASTE.
(A) li,Wt of Refuel. Notwithstanding any other provision hereof, the County may refuse delivery of:
(1) Hazardous Waste;
(2) Controllable Waste delivered at horns other than those provided in Section 3.5 hereof;
(3) Waste that does not constitute Acceptable Waste;
(4) Waste that is delivered by any party which has not executed a Waste Disposal Agreement; and
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(B) Identification gMiaacceatable Waste. The Department shall have the right (but not the duty or the obligation) to inspect the vehicles of all Franchise Haulers delivering material to the Disposal System, and may require that the Franchise Hauler remove any Unacceptable Waste from such vehicle before it is unloaded.
If the Department determines that it is impractical to separate Controllable Waste from Unacceptable Waste in any vehicle, or if the Franchise Hauler delivering such waste is unwilling to make such separation, or if any vehicle is carrying waste which may spill or leak, then the Department may reject the entire vehicle, and the City shall forthwith remove or cause the removal of the entire delivery from the Disposal System. The Department may take all reasonable measures to prevent waste from being blown or scattered before and during unloading. The City shall cause the Franchise Haulers to observe and comply with Applicable Law, the operating rules and regulations of the Department, and the provisions of this Agreement prohibiting the delivery of Unacceptable Waste to the Disposal System.
(C) Hazardous Waste and Hazardous Substances The parties acknowledge that the Disposal System has not been designed or permitted, and is not intended to be used in any manner or to any extant, for the handling, trancpartation, storage or disposal of Hazardous Waste or Hazardous Substances. Neither the County nor the City shall countepartce or knowingly permit the delivery of Hazardous Waste or Hazardous Substances to the Disposal System.
(D) Disposal of Uma2gMgb1e Waste and Hazardous Waste If Unacceptable Waste or Hazardous Waste is discovered in a vehicle at any landfill within the Disposal System, the driver of the vehicle will not be permitted to discharge the load. If a vehicle is observed unloading Unacceptable Waste or Hazardous Waste in the tipping area of a landfill within the Disposal System Department personnel will use reasonable efforts to assure that such material has been characterized, properly secured and its disposition resolved. The return or reloading onto the delivery vehicle of any Hazardous Waste, Prohibited Medical Waste or other waste requiring handling or transportation shall be conducted in accordance with Applicable Law. Whenever Hazardous Waste is detected at any landfill within the Disposal System, the Department shad take immediate action m accordance with Applicable Law.
(E) Sotrrco-Separated Ho Id nus Waste. The Caunty shall maintain, as part of the Disposal System, a Source -Separated Household Hazardous Waste Disposal System for the disposal of Source - Separated Household Hazardous Waste. The disposal service provided by such system shall constitute part of the Disposal Services, -and shall he available to Participating Cities as part of the Contract Rate. The County may impose additional fees and charges for services relating to Source -Separated Household Hazardous Waste with respect to cities which are not parties to a Disposal Agreement. The County may provide for the expansion, contraction or modification of the Source -Separated Household Hazardous Waste Disposal System and its services to the extent neeessary,to ensure the Disposal System's viability, provided, however, if the County chooses to reduce services, the County shall nonetheless continue to expend funds for the Source -Separated Household Hazardous Waste Disposal System each year during the term of this Agreement in an amount at least equal to the amount of fiords expended for the Source -Separated Household Hazardous Waste Disposal System during fiscal year 2006-07 as adjusted by changes in the Producer Price Index.
SECTION 3A IMCQUMAM AREA ACCEffABLE WASTE Commencing on the Commencement Date, the County in accordance with Applicable Law shall provide or cause to be provided the service of disposing of non -recycled Acceptable Waste originating or generated within the Unincorporated Area and, with respect % such waste, shall comply wish the Waste Disposal Covenant as if the County constituted a City subject to the Waste Disposal Covenant hereunder. Rates charged by the County for the disposal of each class of non -recycled Acceptable Waste generated in the Unincorporated Area shall be the same as the Contract Fee charged for the disposal of each class of Controllable Waste. The Cotmty shall use its best efforts to preserve, protect and defend its right to exercise and comply with the Waste Disposal Covenant (with respect to non -recycled Acceptable Waste generated in the Unincorporated Area) against any challenge thereto, legal or otherwise, by a Franchise Hauler or any other person, based upon breach of contract, violation of law or any other legal theory. The County shall bear the cost and expense of any such Legal Proceeding or other challenge (with respect to non -recycled Acceptable Waste generated in the Unincorporated Area)., 13 Execution Cnpy
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SECTION 3.5 NOSCELLANEOUS OPERATIONAL MATTERS.
(A) Operating Hours. The County shall [seep the Disposal System open for the receiving of Controllable Waste during such regular operating hours as may be established by the Department in the operating rules and regulations applicable to the Disposal System. The County shall utilize best efforts to maintain substantially similar hours, as were in effect on January 2, 20W, for the receipt of waste through the term of this Agreement (subject to Applicable Law).
(B) Scales and Weighing. The Department shall operate and maintain permanent scales at the Disposal System. The Department shall weigh all vehicles delivering waste by or on behalf of the City (whether or not the County accepts such waste) and prepare a daily weight record with regard to such delivery. (C) Service Coordinator. The County and the City each shall designate in writing thirty days prior to the expected Commencement Date a person to transmit instructions, receive information and otherwise coordinate service matters arising pursuant to this Agreement (each a "Service Coordinator"). Either party may designate a successor or substitute Service Coordinator at any time by notice to the other party. (D) Review of Records. Each party may review the other party's books and records with respect to matters relevant to the performance by either party under this Agreement or otherwise related to the operation of the Disposal System to the extent allowed under the California Public Records Act (interpreted as if the parties to this Agreement were natural persons for purposes of the Public Records Act).
SECTION 3.6 OTHER USERS OF THE DISPOSAL SYSTEM.
(A) On or Before I , 1114 1,07. 2009]. On or before (120 DAYS AFTER BOARD APPROVAL], the County shall have the right to Atiter into waste disposal agreements with Orange County entities with respect to Acceptable Waste which was originally discarded by the fust generator thereof within the geographical limits of the County, including other cities in the County, Sanitary Districts, Transfer Stations and Independent Haulers, which waste disposal agreements shall have terms and provisions substantially identical to the terms and provisions of this Agreement; provided, however, that in no event shall such agreements have terms and provisions more favorable than the term and provisions of this Agreement (including but not limited to the Contract Rate and availability of disposal capacity).
(B) After cy4U 2009. After (120 DAYS AFfE[t BOARD APPROVAL], the County shall have the right to enter into waste disposal agreements with Orange County entities, including any city, Sanitary District, Transfer Station and Independent Hauler, or otherwise accept Acceptable Waste from such parties, but only within the limitations contained in this Section. Any such agreement or waste acceptance agreement must provide That the party delivering waste shall pay a Posted Disposal Rate at least 100'/6 higher than the Contract hate unless the County determines it is in the best interest of the Disposal System to establish a Posted Disposal Rate less than 101/6 higher than the Contract Rate. In no event shall the Posted Disposal Rate be equal to or less than the Contract Rate. In addition, the County shall reserve the right in any such waste disposal agreement at any time, to the extent permitted by Applicable Law, to refuse to receive and dispose of Acceptable Waste from any city, County Sanitary District, Transfer Station and Independent Hauler if and to the extent that such receipt and disposal may materially and adversely affect the ability of the County to comply with its obligations to the Participating Cities under the Disposal Agreements to which each is a party. (C) Receipt of Imported Acceptable
Waste on a Contract Basis. The County shall have the right to enter into a contract or other agreement with any municipal or private non-Cormty entity for the delivery of Imported Acceptable Waste on terms and conditions that the County determines to be necessary to ensure and enhance the viability of the Disposal System for the benefit of the County and the Participating Cities and to generate Net Import Revenues. The County certifies that in its good faith judgment the contract or other agreement for the delivery of such waste will not materially and adversely affect the ability of the County to receive and dispose of Acceptable Waste from the Participating Cities in accordance with the applicable Disposal Agreements throughout the Term thereof. The term of any such agreement for the disposal of Imported Acceptable Waste shall end by the later to occur of (i) December 31, 2015 or (ii) the date on which County general purpose revenues are no longer expended to pay debt service on the Orange County Public 14 Execution Copy
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Financing Authority Lease Revenue Refunding Bonds Series 2005, but in no event later than the last day of the fiscal year commencing July 1, 2015.
(D) Self Haulers. The City and the County acknowledge that Self -Haulers shall be entitled to deliver Self -Hauled Waste to the Disposal System, on a non -contract basis, at the Posted Disposal Rate. Such Self - Haulers Mall not be entitled to dispose of Acceptable Waste for the Contract Rate. (E) AMfication and Use f -UsersAll revenues received by the County from the disposal of County Acceptable Waste by the Disposal System, and all revenues received by the County from the disposal of Imported Acceptable Waste by the Disposal System, shall be deposited by the County in the County OC Waste & Recycling Enterprise Fund and shall constitute revenues of the Disposal System.
Pursuant to the County's Plan of Adjustment, the County is entitled to receive net revenues (after payment of all costs attributable to the acceptance of such Imported Acceptable Waste at the Disposal System) ("Net Import Revenueel from the disposal of Imported Acceptable Waste by the Disposal System, and such Net Import Revenues may be used for the payment of bankruptcy related obligations in accordance with the Plan of Adjustment.
Costs attributable to the disposal of Imported Acceptable Waste include deposits to the Environmental Fund, deposits to closure and postclosure reserves, City host fees (if applicable), incremental operating costs (such as manpower expenditures, equipment, services and supplies expenditures), state surcharges, and a pro rata share of capital project costs. The parties acknowledge that their intention in determining to allow the importation of Imported Acceptable Waste for disposal by the Disposal System is to stabilize the Contract Rate at rates below those which would otherwise prevail in the absence of such importation.
SECTION 3.7 COUNTY PROVISION OF WASTE DIVERSION SERVICES. (A) -CmM -Hides Recycling Servicer. This Agreement does not require the County to provide for any source reduction, materials recovery, recycling, composting, or other waste diversion services by the County nor any payment therefor by the City, by Franchise Haulers err by ratepayers; provided, however, any County -Wide Recycling Services may be funded through the County OC Waste & Recycling Enterprise Fund. Any such recycling services may be expanded, contracted or modified by the County at any time in its sole discretion. ($)5epart�Cit rL�'ounty Diversion. Service Agreements. Nothing in this Agreement is intended to limit the right of the County to enter into a separate agreement with the City or any other person to Provide source reduction, materials recovery, recycling, composting or other waste diversion services. Any such Program conducted by the County, whether in participation with the City, any other of the Participating Cities, other Cities, Sanitary Districts, Transfer Stations, Independent Haulers, Unincorporated Area or non -County entity, shall be operated, managed and accounted for as a program separate and distinct from the Disposal Services program contemplated by the Disposal Agreements and shall not be funded through the general revenues of the Disposal System.
ARTICLE N
CONTRACT RATE
SECTION 4.1 OHARGMG AND SECURING PAYWW OF CONTRACT RATE. The City acknowledges that the County shall have the right to charge and collect a Contract Rate for the acoeptance and disposal of Controllable Waste delivered to the System by any Franchise Hauler. The Contract Rate shall be calculated and established, and may be modified, as provided in Section 4.2 hereof. In addition, the City acknowledges that the County shall have the right to establish as part of the operating rules and regulations reasonable measures to secure the payment of all Contract Rates, SECTION 4.2 CONTRACT RATE.
(A) Establishment of Contract Rate. The Contract Rate payable by each Franchise Hauler shall be (x) $22.00 per ton from. the Commencement Date through dune 30, 2010, and (y) $29.95 per ton on and after July 1, 2010, in both cases contingent on the delivery to the Disposal System of an amount of Acceptable Waste at 15 F.xa UWO Copy
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0 least equal to the Cumulative Tonnage Targets identified in Appendix 2, and subject to adjustment necessary to reflect the circumstances set forth in this Section 4.2:
(i) increased costs incurred by the County (in excess of available insurance proceeds) due to the occurrence of one or more Uncontrollable Circumstances, other than Changes in Law; (ii) costs incurred by the County (in excess of available insurance proceeds and amounts available in the Environmental Fund for such purposes) remediating environmental conditions at the Disposal System or inactive or closed disposal sites in the County, which, if uncorrected, could give rise to potential claims under CERCLA or related federal or state statutes, including costs incurred providing indemnification to any Participating City pursuant to subsection 7.3; or
(iii) tonnage shortfalls to the extent permitted by Sections 4.2(B); (iv) average annual inflation prior to July 1, 2010 in excess of the levels set forth in Section 4.2(Ii) and escalation pursuant to Section 4.2(F) ; (v) increased costs incurred by the County (in excess of available insurance proceeds) due to the occurrence of one or more Manges in Law; or (vi) Capital Costs in excess of the Capital Costs at any point in time during the term hereof exceeding the Cumulative Capital Costs set forth in Appendix 3.
Prior to adjusting the Contract Rate as a result of any of the circumstances described in clauses (i), (ii) or (iii) above, the Cohmty shall utilize the following remedies in the following order of priority:
(x) reduce the costs of operating the Disposal System to the extent practicable; and (y) utilize Unrestricted Reserves to pay costs of the Disposal System.
The County will not be required to utilize such remedies prior to adjusting the Contract Rate as a result of any of the circumstances described in clauses (iv), (v) or (vi) above.
Any adjustments to the Contract Rate permitted by this Section shall be calculated by the County to reflect the actual costs or expenses of addressing the circunwaace or circumstances pursuant to which the adjustment is authorized.
The County agrees that it will evaluate the feasibility of long term financing for significant capital costs where appropriate.
(B) County Acceptable Waste Shortfall. In the event that the actual amount of County Acceptable Waste delivered to the Disposal System at the end of any Contract Year is less than the Cumulative Tonnage Target for such Contract Year for County Acceptable Waste, as specified in Appendix 2, the County shall utilize the following options, in the fallowing order of priority, in order to remedy any adverse effects of such tonnage shortfall:
the Disposal System;
(i) reduce the costs of operating the Disposal System to the extent practicable; (ii) utilize Restricted Reserves described in clause (iii) of Section 4.5 to pay costs of (iii) utilize Unrestricted Reserves to pay costs of the Disposal Systern; and (iv) adjust the Contract Rate.
In the event that implementation of the steps described above does not result in sufficient revenues to satisfactorily address the shortfall in tonnage, the County shall have the right to terminate the Agreement on 60 days written 16 Execution Copy
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notice to the City. In addition, in the event that actual deliveries to the Disposal System exceed the Cumulative Tonnage Target as of the end of any Contract Year, the City acknowledges the County shall have the right to establish reserves intended to reflect the potential for lower than expected annual waste deliveries in subsequent years, and that any such reserves shall constitute "Restricted Reserves". (C) [RESERVED]
(D) Interim UER QfRernedies. In the event that, during any Contract Year, waste deliveries to the Disposal System are 250/a or more below delivery projections for such Contract Year with the result that the County determines it is unlikely that the Cumulative Tonnage Target will be achieved as of the end of such Contract Year, the County may utilize the remedies described in Section 4.2(B) prior to the end of such Contract Year; provided, however, that if at the end of such Contract Year, the Cumulative Tonnage Target is actually met, the County shall reimburse any adjustments to the Contract Rate made pursuant to this Section to Participating Cities.
Such reimbursement may be given as a credit or adjustment to the Contract Rate for future deliveries, rather than a lump sum payment.
(I:) Special Chau. Notwithstanding Section 4.2(A), the County shall have the right to impose special charges for the receipt of hard to handle materials, such as bulky materials, construction and demolition debris, tree stumps and sludge. Such special charges shall be calculated to reflect the reasonable incremental costs to the County of accepting such hard to handle materials. In addition, in the event that the Board of Supervisors of the County makes a determination to implement a facility (including but not limited to a transfer station, landfill, conversion technology facility, or a materials recovery or processing facility), which facility would be intended to provide for disposal alternatives after the closure of one or more of the landfills currently operating within the Disposal System, the County may impose an additional charge of $0.50 per ton of Acceptable Waste in order to pay the costs of the study, development, planning, construction and/or operation of such facility.
4.2(I). Adjustments pursuant to this Section 4.2(E) shall not require compliance with the provisions of Section (F) lation The Contract Rate shall be adjusted each July 1, beginning July 1, 2011. The change will be equal to the positive percentage change in the Consumer Price Index — All Urban Consumers, U.S. city average, All items, Not Seasonally Adjusted, Series ID CUUROOOOSAO ("CPI") as measured from the October 21 months prior to the rate adjustment to the October immediately preceding the rate adjustment. For example: The July 1, 2011 rate adjustment shall be based upon the index change from October 2004, to October 2010, referred to as year 1 and year 2 respectively in the following example.
Formula to calculate percentage change in the Contract Rate:
Step 1:
C October Year 111 J _ 1 m % increase in Contract Rate
October Year 1 CPI J
Step 2: Current Contract Rate x (1+ % increase in Contract Rate) = Contract Rate as of July 1 Year 2 On each April 1, commencing April 1, 2011, the County shall provide the City with notice of the adjustment to the Contract Rate to be effective the following July 1. Such notice shall contain the calculation of the adjustment set forth above. The County will calculate the new Contract Rate each year.
In the event that the change in the CPI is negative, no rate adjustment will be made for that year. No adjustment under this Section 4.2(F) will take place until the October CPI index surpasses the index level as of the October immediately preceding the last annual rate adjustment pursuant to this Section 4.1(F), which will be considered "year 1" in calculating the change in the Contract Rate. 17 Execufion Copy
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For example, if the CPI is measured as follows: October 2009 = 205, October 2010 = 204, October 2011= 201, October 2012 = 208, then there would be no adjustment in July 2011, or July 2012, and an adjustment equal to the change from 205 to 208 would be implemented on July 1, 2013.
Adjustments pursuant to this Section 4.2(F) shall not require compliance with the provisions of Section 42(I).
(G) .Adiustment Resulting from Increased Fees. In addition to the other adjustments specified herein, the Contract Rate shall be adjusted to reflect the imposition of new fees or increase in existing fees relating to the disposal of Controllable Waste imposed by state, federal or other agencies (i.e., the State's integrated Waste Management fee, which is currently $1.40 per ton). The adjustment shall be equal to the amount of any new or increased fee, and the adjustment shall take effect so as to coincide with the imposition of the new or increased fee.
The County shall provide notice of any increase pursuant to this Section 4.2(G) as soon as practicable after becoming aware of the imposition of any fees described above.
Adjustments pursuant to this Section 4.2(G) shall not require compliance with the provisions of Section
4.2(I).
(H) Calculation of Cumulative Inflation Rate. For purposes of Section 4.2(Axiv) for adjustments prior to July 1, 2011, the inflation shall be calculated as the change in the CPI between.July of the year of calculation and July 1, 2008. Inflation shall be deemed to exceed the levels set forth below if the ratio between the CPI for July for the year of calculation (calculated in accordance with the formula below) and July 2008 exceeds the ratio corresponding to such year of calculation on the table below. The ratio shall be calculated in accordance with the following formula;
(July CPI of calculation year / CPI for July 2008)
Year of Cakul don
Ratio
July 1 2008
1.0000
July 1 2004
1.0355
July l 2010
1.0723
In the event the CPI is no longer published during the tam of this Agreement, such other index identified by the Bureau of Labor Statistics or otherwise generally accepted as a replacement for CPI shall be used for purposes of this Agreement. in the event of an adjustment to the Contract Rate pursuant to this section 4.2(H), such adjustment shall be applied to the Contract Rate effective until June 30, 2010, and the Contract Rate effective July 1, 2010.
Adjustments pursuant to this Section 4.2(H) shall not require oompliance with the provisions of Section 4-2(1)-
(1) Procedure for Rate Adjustm mts. In the event the County determines that it is entitled to an adjustment of the Contract Rate pursuant to Section 4.2(A) (other than 4.2(Axiv)) or Section 4.2(B), it shall utilize the procedures described in this Section 4.2(1). The County shall be required to provide the City with at least 40 days prior written notice of the adjustment, which notice shall identify the specific event(s) or circumstances which require the adjustment. The notice shall also specify the earliest date on which the County Board of Supervisors shall consider the proposed adjustment. At least 45 days prior to such meeting of the Board of Supervisors, the County shall provide the City with a report which shall contain the following information: a description of the specific event(s) or circumstances which require the adjustment; a description (including cost estimates) of any activities (which may include, but not be limited to capital improvements to the Disposal System) required in order to remedy such event or circumstance; certification by the County that it has implemented the remedies described in Section 4.2(A) or (B) prior to requiring the rate adjustment; and a description of the methodology used by the County to calculate the adjuslmeat to the Contract Rate (hereinafter the "County Report").
In the event the City disputes the adjustment, it shall provide the County with a written description of the reason for the dispute at least 10 days prior to the meeting of the Board of Supervisors identified in the initial notice of the County (hereinafter the "City Report"). The City Report shall be provided to the Board of Supervisors for 18 Execution Copy,
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consideration at such meeting in connection with the proposed rate adjustment. At any time from and after the date that the County provides the City with the County Report, upon the request of either party, the City and County shall meet and confer in good faith to resolve any dispute that may arise regarding the proposed adjustment to the Contract Rate. In any such meeting, the County shall be represented by the Director of the Department or his or her designee. In the event the Board of Supervisors approves ail or a portion of the proposed rate adjustment, such rate adjustment shall become effective on the date identified in the initial notice sant by the County regardless of whether or not the procedures in Section 4.2(J) are utilized, but subject to potential reimbursement pursuant to clause (11) of Section 4.2(.1).
(J) Proc a for Expedited Judicial Review Qf Ceu)gsled Rate Adj s Hent. In the event that, within 30 days after the effective date of any Contract Rate adjustment made pursuant to Section 4.2M Participating Cities which, in the aggregate, accounted for more than 50% of the County Acceptable Waste delivered to the County System in the twelve months preceding the Contract Rate adjustment, provide notice to the County of their election to utilize the procedures described in this Section 4.2(1), than the provisions of this Section 4.2(J) shall be utilized by such Participating Cities and the County to resolve the dispute over the Contract Rate Adjustment. In the event that Participating Cities which have delivered the amount of waste contemplated in the preceding sentence do not provide notice to the County of such election, the County shall have no obligation to participate in or cooperate in the implementation of the procedures described below in this Section 4.2(J). (1) In order to pursue the expedited judicial determination described in this Section (the "Expedited Rate Determination'),- the Participating Cities which have made the election described in the paragraph above (the "Challenging Cities") must commence a civil action for breach of contract (the "Action") in the Orange County Superior Court within 45 days of the date on which the Board of Supervisors approves the challenged adjustment to the Contract Rate.
(2) Within two (2) days of filing the Action, the Challenging Cities shall personally serve on the County Counsel both the summons and complaint, and a stipulation and request for the entering of an order incorporating all of the procedural provisions relating to the Expedited Rate Determination as set forth in this Section 4.2(J) (such stipulation and request for order is hereinafter referred to as the "Expedited Rate Determination Stipulation"). The Expedited Rate: Determination Stipulation shall be signed by each of the Challenging Cities. (3) Within fifteen (15) days of the date of service upon the County of the summons and complaint, and Expedited Rate Determination Stipulation, the County Counsel shall execute the Expedited Rate Determination Stipulation and personally serve upon the Challenging Cities through their counsel of record the Expedited Rate Determination Stipulation and its answer to the complaint in the Action. The Stipulation shall also include a waiver by each of the parties of their right to a jury trial of the issues raised in the Action. The Cityand the County mutually agree that the duty to execute the Expedited Rate Determination Stipulation and comply with the procedures set forth for Expedited Rate Determination in this Section 4.2(J) shall be, and are hereby deemed to be, ministerial duties which the law specifically enjoins upon each of than, and shall be subject to enforcement by the parties herein pursuant to Code of Civil Procedure Section 1085, et seq., or by means of a complaint for specific performance.
(4) Within three (3) days of the date of service by the County upon the Challenging Cities of the filly signed Expedited Rate Determination Stipulation, the County and the Challenging Cities shall jointly make ex parte application to the Orange County Superior Court in the Action for the issuance of the order contained in the Expedited Rate Determination Stipulation. At such ex parte application, the County and the Challenging Cities shall also seek to confirm with the Orange County Superior Court the briefing schedule, and request a hearing date in accordance with the procedures set forth in this Section 4.2(J). (5) Within ten (10) days of the date of service by the County upon the Challenging Cities of the answer in the Expedited Rate Determination, the Challenging Cities shall file with the court and personally serve upon the County the Challenging Cities' opening brief and the Record m the Expedited Rate Determination. The opening brief shall not exceed 15 pages in length. The Record shall consist o& and be limited to, the record of the proceedings before the Board of Supervisors with respect to the adjustment of the Contract Rate, including but not limited to the County Report and the City Report prepared by each or any of the Challenging Cities pursuant to Section 4.2(l), any materials filed or lodged with the Board of Supervisors and the Orange County 19 Execution Copy
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Waste Commission, the transcript of the proceedings of the Board of Supervisors meeting and the Change County Waste Commission, the minutes of the Board of Supervisors and the Orange County Waste Commission meeting, and the resolution and/or other documentation evidencing action by the Board of Supervisors and the grange County Waste Commission to adjust the Contract Rate pursuant to Section 4.2(A) or (B). The record shall also include the most recent reports prepared pursuant to Sections 4.6 and 4.7. The Expedited Rate Determination shall be decided solely on the evidence in the Record, and no extrinsic evidence shall be submitted to or considered by the court.
(6) Within ten (10) days of service by the Challenging Cities of their opening brief and the Record, the County shall file and personally save upon the Challenging Cities the County's opposition brief. The opposition brief shall not exceed 15 pages in length. (7) Within five (5) days of service by the County upon the Challenging Cities of the opposition brief, the Challenging Cities may file and personally serve upon the County a rebuttal brief, which shall not exceed 10 pages in length.
(8) The trial of the Expedited Rate Determination shall be conducted as a hearing which shall be conducted at the date set by the court in the ex parte hearing conducted pursuant to Section 4.2(J)(4), or such other date and time ordered by the court. if the court requests the parties to prepare supplemental briefs in response to any question or issue raised by the court, the parties may do so. (9) The standard of review for the Expedited Rate Determination shall be the preponderance of the evidence based upon the Record. The burden of proof shall be borne by the Challenging Cities, and the burden of proof shall be the same as with respect to a plaintiff in a damages action for breach of contract. Both parties have participated in the drafting of this Agreement. Accordingly, nothing set forth in this Agreement shall be interpreted or construed for or against either of the parties as a consequence of their participation in the drafting of this Agreement.
(10) The court shall issue its written statement of decision and enter judgment within thirty (30) days of the date of the hearing in the Expedited Rate Determination. (11) If the court determines that any portion of the County's adjusted Contract Rate which is the subject of the Expedited Rate Determination was improperly imposed, the County shall, within 30 days of the date of the statement of decision, reimburse to the City the amount improperly imposed, together with interest calculated at the highest percentage rate that does not constitute usury under California laws. Such reimbursement may be made in the form of a reduction in the Contract Rate for a future period (not to exceed twelve months) reasonably calculated to provide full reimbursement of the amounts described above. (12) If for any reason the court does not sign the order contained in the Expedited Rate Determination Stipulation, the City shall, within 30 days of the court's denial of such requested order, file with the court and personally serve upon the County a motion for summary judgment and/or motion for judgment on the pleadings, in accordance with Code of Civil Procedure Section 437(c) and 438. By executing this Agreement, the parties hereby stipulate that, in the event that the Challenging Cities file such summary judgment motion and/or motion for judgment on the pleadings, the Record shall be deemed to have been incorporated into the complaint and answer filed by the Challenging Cities and the County, and no evidence outside of the Record is relevant or material to the dispute raised in the Expedited Rate Determination. The briefing schedule and hearing on such motion for summary judgment and/or motion for judgment on the pleadings shall be in accordance with Code of Civil Procedure Section 437(c), The Challenging Cities and the County shag be bound by all of the requirements and restrictions set forth in Section 4.2(J) that are not in conflict with obis paragraph (12). (13) In the event that the court both does not sign the order contained in the Expedited Rate Determination Stipulation and either does not hear or does not issue a ruling on the merits on the motion for summary judgment and/or judgment on the pleadings which is dispositive of the issues, claims and causes of action in the complaint filed by the Challenging Cities, the County and the Challenging Cities shall, within twenty days following the issuance of the Court's order or decision not to honor the parties' stipulation or not to hear the parties' motion for summary judgment, make application to the Presiding Judge of the Orange County 20 Sxeauton Copy
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Superior Court for an expedited hearing or trial date. The Challenging Cities and the County shall be bound by all of the requirements and restrictions set forth in Section 4.2M that are not in conflict with this paragraph (13). In this regard, and without limiting the foregoing, the only evidence to be presented at the hearing or trial shall be the Record, no testimony shall be presented at the hearing or trial; and both the County and the Challenging Cities waive all rights to a jury trial, to any reconsideration of the decision of the court, to a new trial after the court renders a decision, and to any appeal or review of the decision of the court.
SECTION 4.3 RESPONSIBILTT7C FOR PAYMENT OF THE CONTRACT RATE. (A) Payment by City. In the event and to the extent (1) the City uses municipal collection forces' directly for the haulage of Controllable Waste to the Disposal System or (2) the City uses non -municipal Franchise Haulers for collection but nonetheless elects to pay the Contract hate from City revenues, the City, as its own Franchise Hauler, shall have direct responsibility for payment of the Contract Rate, and shall take all such budgetary, appropriation and other action as may be necessary to provide for the timely payment of the Contract Rate. Such action may include, depending upon the means authorized by the City to provide for such payment, the levy and collection of general or special taxes, the imposition of benefit assessments, or the collection of reser fees, generator charges or other similar impositions for municipal solid waste disposal. The City shall use best efforts in accordance with Applicable Law to levy and impose all such taxes, assessments, fees or charges, and will take all steps„actions and proceedings for the enfarcesment, collection and payment of all such amounts which shall become delinquent, to the full extent permitted by Applicable Law. To the. extent provided in Section 7.5 hereof, the obligation of the City for such Coa raci Rates shall be limited to amounts in the City's Solid Waste Enterprise Fund.
From the Commencement Date to the date of expiration or termination of this Agreement, the obligation to the City to pay the Contract Rate, to the extent the City rather &an Franchise Haulers is responsible directly for payment and provided that the Service Covenant has been complied with, shall be absolute and unconditional and shall not be subject to delay or diminution by reason of set-off, abatement, counterclaim, existence of a dispute or otherwise. (B) parvmerrt by Franchise Haulers. With respect to Controllable Waste delivered by Franchise Haulers other than City municipal collection forces, the obligation to pay the Contract Rate shall rest with such Franchise Haulers and not with the City and, unless the City has agreed with the County to be responsible for Franchise Hauler payments, the City shall not be financially responsible for any delay or failure by such Franchise Hauler to pay the Contract Rate or any portion thereof when due. In the event of any such failure, the County and the City shall cooperate with each other and use their best efforts to obtain timely payment. Such efforts by the County may include, as appropriate, requiring cash payments for disposal rights from such Franchise Hauler and bringing a legal proceeding for payment and damages. Such efforts by the City may include, as appropriate, legal proceedings to suspend, revoke or terminate the Franchise Hauler's franchise, permit or license rights. (C) Disputes If the City or the Franchise Hauler disputes any amount billed by the County in any Billing Statement, the City or the Franchise Hauler shall nonetheless pay the billed amount and shall provide the County with written objection within 30 days of the receipt of such Billing Statement indicating the amount that is being disputed and providing all reasons then known to the City or the Franchise Hauler for any objection to or disagreement with such amount. If the City or the Franchise Hauler and the County are not able to resolve such dispute within 30 days after the City's or the Franchise Hauler's objection, either party may pursue appropriate legal remedies.
SECTION 4.4 BILI&G OF THE CONTRACT RATE. The County shall continue to bill Contract Rates after the Commencement Date, in the same manner as it has customarily billed tipping fees. Subject to the other provisions of this Agreement, the County shall have the right to modify or amend sucb manner of billing on reasonable notice to affected parties.
SECTION 4.5 RESTRICTED RESERVES. For purposes of this Agreement, "Restricted Reserves” means cash and other reserves of the Disposal System which are restricted to specific uses or are otherwise being reserved by the County to meet its obligations hereunder throughout the tenm of the Agreement with respect to the Disposal System pursuant to any Applicable Law, contract, adopted budget, budgetary policy of the County with respect to the Disposal System, or other arrangement. Such cash and other reserves are not required to be deposited in separate accounts or finds in order to constitute "Restricted Reserves" hereunder, and may be commingled with 21 Execution Copy
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Unrestricted Reserves or other funds of tate County attributable to the Disposal System. "Restricted Reserves" shall include, but not be limited to, the following:
(i) reserves for closure of components of the Disposal System to the extent required by Applicable Law;
(ii) amounts reserved by the County for funding of post closure maintenance and monitoring with respect to components of the Disposal System; (iii) reserves established to protect the Disposal System against the adverse financial impact of potential decreases in waste deliveries pursuant to Section 4.2(B); (iv) amounts reserved to pay the costs of capital improvements with respect to the Disposal System;
(v) amounts funded from revenues during the early years of the term of the Agreement reserved to enable the County to provide disposal services for the Contract Rate during the later years of the Agreement;
(vi) amounts temporarily held by the County prior to payment to the State or other Governmental Bodies pursuant to Applicable Law (including any fees or charges payable to the State Integrated Waste Management Board);
(vii) reserves required to meet bond covenants pursuant to financing agreements for Disposal System assets to the extent such amounts must be legally separate and distinct from other reserves identified in this Section;
(viii) security deposits from landfill deferred payment program users; (ix) amounts held by the County in the Environmental Fund (provided, however, that such amounts in the Environmental Fund will be made available and used by the County if required to pay costs relating to environmental remediation or other related costs); (x) AD939 surcharges;
(xi) amounts held by the County in the Corrective Action Fund held pursuant to CCR Title 27 to demonstrate financial assurance to pay for potential groundwater contamination; and NO an amount equal to three months of budgeted expenses for die Disposal System for the cement fiscal year, representing working capital of the Disposal System.
SECTION 4.6 AUDEFi? FINANCIAL STATEMENTS. The County shall annually, on or before January 1 each year, prepare or cause to be prepared and have on file for inspection an annual report for the preceding Contract Year, accompanied by a certificate ofan independent public accountant or of the County Auditor and Controller as to the examination of the financial statements therein (describing such statements as fairly presenting the information therein in conformity with generally accepted accounting principles) relating to the Disposal System, the Disposal Services, and the fiscal activities of the County OC Waste Disposal Enterprise Fund, and including statements in reasonable detail of the financial condition of the County OC Waste Disposal Enterprise Fund as of the end of the Contract Year and revenue and expenses for the Contract Year, SECTION 4.7 ANNUAL UPDATE OF TEN-YEAR FINANCIAL PROJECTION. The County shag annually, on or before May 1 of each year, prepare or cause to be prepared, an updated Ten -Year Financial Projection for the Disposal System. Said Financial Projection shall include at least two full years of prior actual data and ten years of future projections including the following elements:
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4. Fund, with specific delineation
and all other funds of the Systerr
for other environmental costs.
County Acceptable Waste, in tons;
Imported Acceptable Waste, in tons;
Revenues and expenditures;
Cash fund balances, including all monies in the County Solid Waste Enterprise of monies in the Environmental Fund, Restricted Reserves, Unrestricted Reserves, Projected liabilities for closure and post closure as well as reasonable reserves The purpose of the Ten -Year Financial Projection is to keep the City fully informed about the future financial, condition of the Disposal System. The County shall carie a copy of the Ten -Year Financial Projection to be delivered to the City Manager of the City no later than May 1 of each year. Upon request, the County shall make available to the Cities supporting information related to the ten-year financial projection
ARTICLE V
BREACH, ENFORCEMENT AND TERMINATION
SECTION 5.1 RUACH. The parties agree that in the event either party breaches any obligation under this Agreement or any representation made by either party hereunder is untrue in any material respect, the other party shall have the right to take any action at law or in equity (including actions for injunctive reliefs mandamus and specific performance) it may have to enforce the payment of any amounts due or the performance of any obligations to be performed hereunder. Neither party shall have the right to terminate this Agreement except as provided in Section 52 and Section 5.3 hereof or as otherwise provided in this Agreement.
SECTION 5.2 CITY CONVENIENCE TERMINATION. The City shall have the right to terminate this Agreement in its We discretion, for its convenience and without cause at any time during the Term hereof upon 90 days' written notice to the County. If the City exercises its rights to terminate the Agreement pursuant to this Section, the City shall pay the County a termination fee equal to the Contract Rate in effect at the time of such termination (or any higher rate with resect to which the County has provided notice pursuant to Section 4.2) multiplied by the number of tons of City Acceptable Waste delivered to the Disposal System during the preceding twelve months (or, if the City had been in breach of the Waste Disposal Covenant during such prior months, such amount as would have been delivered if the City had complied with the Waste Disposal Covenant), multiplied by the number of years remaining in the Term of the Agreement.
SECTION 5.3 TERMINATION.
(A) By City. Except as expressly provided herein, the City shall have no right to terminate this Agreement for cause except in the event of the repeated failure or refusal by the County substantially to perform any material obligation under this Agreement unless such failure or refusal is excused by an Uncontrollable Circumstance; except that no such failure or refusal shall give the City the right to terminate this Agreement for cause under this subsection unless:
(1) The City has given prior written notice to the County stating that a specified failure or refusal to perform exists which will, unless corrected, constitute a material breach of this Agreement on the part of the County and which will, in ita opinion, give the City the right to terminate this Agreement for cause under this subsection unless such breach is oonected within a reasonable period of time, and (2) The County has neither challenged in an appropriate forum (in accordance with Section 5.5) the City's conclusion that such failure or refusal to perform has occurred or constitutes a material breach of this Agreement nor corrected or diligently taken steps to correct such breach within a reasonable period of time not more than 90 days from the date of the notice given pursuant to clause (1) of this subsection (but if the 23 Execution Cagy
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County shall have diligently taken steps to correct such breach within such reasonable period of time, the same shall not constitute a breach giving rise to the right of termination for as long as the County is continuing to take such steps to correct such breach).
(B) By County. Except as expressly provided herein, the County shall have no right to terminate this Agreement for rause except in the event of the repeated failure or refusal by the City substantially to perform any material obligation under this Agreement unless such failure or refusal is excused by an Uncontrollable Circumstance; except that no such failure or refusal shall give the County the right to terminate this Agreement for cause under this subsection unless:
(1) The County has given prior written notice to the City stating that a specified failure or refusal to perform exists which will, unless corrected, constitute a material breach of this Agreement on the part of the City and which will, in its opinion, give the County right to terminate this Agreement for cause under this subsection unless such breach is corrected within a reasonable period of time, and (2) The City has neither challenged in an appropriate forum (in accordance with Section 5.5) the County's conclusion that such failure or refusal to perform has occurred or constitutes a material breach of this Agreement nor corrected or diligently taken steps to correct such breach within a reasonable period of time not more than 40 days from the date of the notice given pursuant to clause (1) of this subsection (but if the City shall have diligently taken steps to correct such breach within such reasonable period of time, the same shall not constitute a breach giving rise to the right of termination for as long as the City is continuing to take such steps to correct such breach).
SECTION 5.4 NO WAIVERS. No action of the County or the City pursuant to this Agreement (including, but not limited to, any investigation or payment), and no failure to act, shall constitute a waiver by either party of the other party's compliance with any term or provision of this Agreement. No course of dealing or delay by the County or the City in exercising any right, power or remedy under this Agreement shall operate as a waiver thereof or otherwise prejudice such party's rights, powers and remedies. No single or partial exercise of (or failure to exercise) any right, power or remedy of the County or the City under this Agreement shall preclude any other or further exercise thereof of the exercise of any other right, power or remedy.
SECTION 5.5 FORUM FOR DISPUTE RESOLUTION. It is the express intention of the parties that all legal actions and proceedings related to this Agreement or to the Disposal System or to any rights or any relationship between the parties arising therefrom shall be solely and exclusively initiated and maintained in courts of the State of California having appropriate jurisdiction.
ARTICLE VI
TERM
SECTION 6.1 EFFECTIVE DATE AND TERM.
(A) Initial Term. This Agreement shall become effective, shall be in full force and effect and shall be legally binding upon the City and the County from the Contract Date and shall continue in full force and effect until June 30, 2020, unless earlier terminated in accordance with its terms, in which event the Term shall be deemed to have expired as of the date of such termination. (13) O�r:on to Renew. This Agreement shall be subject to renewal by mutual agreement of the parties, on or before June 30, 2018, for an additional term of ten years (the "Renewal Term") on the same terms and conditions as are applicable during the Initial Term hereof. The City shall give the County written notice of its irrevocable election to renew this Agreement on or before June 30, 2017. If the parties do not renew this Agreement by June 30, 2018, the Agreement shall expire on June 30, 2020. (C) Contract Rate,During Renewal Term. In connection with the parties' right to renew this Agreement for an additional ten-year tern pursuant to Section 6.1(B), the parties shall, on or before June 30, 2018, negotiate an applicable change in the Contract Rate for such renewal term. In determining any revisions to the 24 6ceauion Copy
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Contract Rate to be applicable during any renewal period, in addition to the circumstances described in Section 4.2(A), the parties may take into consideration the following parameters, including but not limited to:
(i) actual cost of operations;
(ii) population growth;
(iii) increase or decrease in available tonnage;
(iv) economic and disposal market conditions in the Southern California region; (v) changes in transportation and technology,
(vi) closure and expansion of nearby landfills;
(vii) capacity of the Disposal System; and
(viii) available reserves which are in excess of the amount reasonably required as (D) Survival_ Accrued Rift. The rights and obligations of the parties hettto pursuant to Sections 3.1(13)(2), 5.1, 5.3, 5.5, 7.2, 7.3, 7.5, 7.7, 7.8, 7.9, and 7.10 hereof shall survive the termination or expiration of this Agreement, and no such termination or expiration shall limit or otherwise affect the respective rights and obligations of the parties hereto accrued prior to the date of such termination or expiration. At the end of the Term of this Agreement, all ather obligations of the parties shall terminate.
SECTION 6.2 9O1y1MENCEl41> IVT DATE.
(A) ObtiggCtions otthe Paries the Commencement D The parties acknowledge that the Disposal Agreements may be executed and delivered on different dates and that, except as provided in this subsection, neither the County nor the City shall be obligated to perform its obligations hereunder until the participation threshold provided herein has been met and the other conditions to the occurrence of the Commencement Date have occurred. Prior to the Commencement Date, each party hereto shall at its own expense exercise good faith and due diligence and take all steps within its reasonable control in seeking to satisfy the conditions to the Commencement Date set forth herein as soon as reasonably practicable. The County and the City, each at its own expense, shall cooperate fully with each other and the other Participating Cities in connection with the foregoing undertaking. Until the Commencement Date occurs, the Original WDAs shall remain in full force and effect.
(B) Cm&tion to the Qww-encenicnt Date. The Commencement Date for the Agreement shall be the date on which the pm=tage of the County's Acceptable Waste attributable to Participating Cities which have executed and delivered Disposal Agreements shall exceed 850% percent (using the percentage rates attributed to such Cities in Appendix 1). Unincorporated County is assumed to be a Participating City for the Purposes of determining the Commencement Date in accordance with this Section 6.2(b) and Appendix 1 of this Agreement.
(C) Satisfaction of Condition and Commencement Date. Upon the satisfaction or waiver of the condition to the Commencement Date, the County shall give written notice thereof to the cities which have theretofore executed Disposal Agreements. The parties shall thereupon hold a formal closing acknowledging the satisfaction or waiver of the condition to the Commencement Date, certifying that the Commencement Date has occurred and designating the Participating Cities. Copies of all of the documents or instruments constituting or evidencing satisfaction of the Commencement Date conditions shall be fiunished to each party prior to or on the Commencement Date.
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(D) Newly Incorporated Cities. Any city within Change County which becomes incorporated after the Commencement Date shall upon request be offered the opportunity by the County to become a Participating City. if any such City executes a Disposal Agreement and meets the applicable condition provided in subsection 6.2(B) hereof within ISO} days following the date of its municipal incorporation, then such City shall be entitled to execute a Waste Disposal Agreement on substantially the same terms and conditions as this Agreement (including the Contract Rate), notwithstanding the limitations contained in Section 3.6(B). (E) Failure of Condition. If by 1k ` DAYS AFTER BOARD APPROVAL], or such later date as the County may agree, the condition to de Commencement Date specified in this Section is not satisfied, either party hereto may, by notice in writing to the other party, terminate this Agreement. Neither party shall be liable to the other for the termination of this Agreement pursuant to this subsection, and each of the parties shall bear its respective costs and expenses insured in seeking to satisfy the condition to the Commencement Date.
Notwithstanding anything in this Agreement to the contrary, in the event that this Agreement is terminated pursuant to this Section, the provisions of the Original WDA shall remain in full force and effect on the terms and conditions set forth therein.
ARTICLE VII
GENERAL PROVISIONS
SECTION 7.1 PPEBAIM AND MINTENANCEDISPOSAL SYSTEM. The County, at its cost and expense through the County Solid Waste Enterprise Fund, shall at all times operate, or caused to be operated, the Disposal System in accordance with Applicable Law and the operating rules and regulations of the Department.
SECTION 7.2 ' _iZNCs MROLLABLE CIRCUMSTANCES -GENERALLY. (A) Performance Excused.. Except as otherwise specifically provided in this Agreement, neither the County nor the City shall be liable to the other for any failure or delay in the performance of any obligation under this Agreement (other than any payment at the time due and owing) to the extent such failure or delay is due to the occurrence of an Uncontrollable Circumstance. (B) Notim-Mitigation. The party experiencing an Uncontrollable Circumstance shall notify the other party by telecommunication or telephone and in writing, on or promptly after the date the party experiencing such Uncontrollable Circumstance first knew of the commencement thereof, followed within 15 days by a written description of (1) the Uncontrollable Circumstance and the cause thereof (to the extent known), (2) the date the Uncontrollable Circumstance began and the cause thereof, its estimated duration, the estimated time during which the performance of such party's obligations hereunder will be delayed, (3) the estimated amount, if any, by which the Contract Rate may need to be adjusted as a result of such Uncontrollable Circumstance, (4) its estimated impact on the other obligations of such party under this Agreement and (5) potential mitigating actions which might be taken by the County or City and any areas where costs might be reduced and the approximate amount of such cost reductions. Each party shall provide prompt written notice of the cessation of such Uncontrollable Circumstance. Whenever such act, event or condition shall occur, the party claiming to be adversely affected thereby shall, as promptly as reasonably possible, use its best efforts to eliminate the cause therefor, reduce costs and resume performance under this Agreement. In addition, with respect to Changes in Law, the County shall diligently contest any such changes the imposition of which would have a material adverse impact on the Disposal System.
While the delay continues, the County or City shall give notice to the other party, before the first day of each succeeding month, updating the information previously submitted. (C) !=act on Contract Rate. If and to the extent that Uncontrollable Circumstances interfere with, delay or increase the cost to the.County of meeting its obligations hereunder and providing Disposal Services to the Participating Cities in accordance herewith, the County shall be entitled to an increase in the Contract Rate as provided in Section 4.2 herein or an extension in the schedule for performance equal to the amount of the increased cost or the time lost as a result thereof. The proceeds of any insurance available to meet any such increased cost shall be applied to such purpose prior to any determination of cost increases payable under this subsection. Any cost reductions achieved through the mitigating measures undertaken by the County pursuant to subsection 7.2(13) hereof upon the occurrence of an Uncontrollable Circumstance shall be reflected in a reduction of the amount by which the 26 ExwwiGn Cagy
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Contract Rate would have otherwise been increased or shall serve to reduce the Contract Rate to reflect such mitigation measures, as applicable.
SECTION 73 ZpEM WICATION. To the extent permitted by law, the County agrees that, it will protect, indemnify, defend and hold harmless the City from and against all Loss-and-Expepse arising from the City's activity as an "arranger" (for purposes of and as such term is defined under CERCLA or comparable state statutes) of municipal solid waste disposal pursuant to this Agreement. In the event the City shall ddArmine that because of conflict or any other reason that it wishes to be defended by legal counsel other than the legal counsel provided by the County, the cost of providing such legal counsel shall be the City's sole responsibility. The City acknowledges the County's legitimate interest in actively participating in any defense, litigation or settlement whether the County or the City provides legal counsel. Any casts incurred by the County pursuant to this Section snail be considered an [incontrollable Circumstance cost and the County shall be entitled to adjust the Contract Rate as provided in subsection 4.2(A) ham. The County shall not, however, be required to indemnify or defend the City from and against all loss -and -Expense arising from any willful, lmowing, illegal or negligent disposal of hazardous waste (other than incidental amounts of Household Hazardous Waste oommoniy found m municipal solid waste and permitted to be disposed in Class III landfills under RCRA) which violates the County's landfill permits or Applicable Law. The parties agree that this provision constitutes an indemnity under CERCI A (to the extent of the specific provisions of this Section). The parties acknowledge that this subsection is not intended to and does not create any obligation on the part of the County to provide any indemnification or defense to any Franchise Hauler, whether franchised or not, or any Independent Hauler or Transfer Station, under any ckeimrstances. The City acknowledges the County's legitimate interest in actively participating in any defense, litigation or settlement, and shall, as a condition to this indemnity, coordinate fully with the County in the defense.
SECTION 7.4 RELATIONSHIP OF UM PARTIES. Neither party to this Agreement shall have any responsibility whatsoever with respect to services provided or contractual obligations or liabilities assumed by the other party hereto, whether accrued, absolute, contingent or otherwise, or whether due' or to become due. The County is an independent contractor of the City and nothing in this Agreement shall be deemed to constitute either party a partner, agent or legal representative of the other party or to create any fiduciary relationship between the parties.
SECTION 7S Llhil'CED RECOURSE.
(A) To thr, City Except in the event the City has not established or maintained a City Solid Waste Enterprise Fund, no recourse shall be had to the general funds or general credit of the City for the payment of any amount due the County hereunder, or the performance of any obligation incurred hereunder, including any Loss - and -Expense of any nature arising from the performance or non-performance of the City's obligations hereunder.
The sole recourse of the County for all such amounts shall be to the funds held in any such Solid Waste Enterprise Fund All amounts held in any City Solid Waste Enterprise Fund shall be held for the uses permitted and required thereby, and no such amounts shall constitute property of the County. The City shall make adequate provision in the administration of any City Solid Waste Enterprise Fund for the payment of any amount or the performance of any obligation which may be due hereunder.
(13) To the County. No recourse shall be had to the general funds or general credit of the County for the payment of any amount due the City hereunder, or the performance of any obligation incurred hereunder, including any Loss and-Expeow of any nature arising from the perforce or non-performance of the County's obligations hereunder. The sole recourse of the City for all such amounts shall be to the funds held in the County Solid Waste Enterprise Fund in accordance with the terns of this Agreement. All amounts held in the County Solid Waste Enterprise Fund shall be held for dee uses permitted and required thereby, and no such amounts shall constitute property of the City. The County shall make adequate provision in the administration of the County Solid Waste Enterprise Fund for the payment of any amount or the performance of any obligation which may be due hereunder.
SECTION 7.6 PRE-EXISTING RIGHT'S AND I.IAHILITIES. Nothing in this Agreement is intended to affect, release, waive or modify any rights, obligations or liabilities which any party hereto may have to or against the other party as of the Contract Date relating to the disposal of waste in the Disposal System or any other related matter.
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SECTION 7.7 NO VESTED RIGHTS. The City shall not acquire any vested property, license or other rights in the Disposal System by reason of this Agreement.
SECTION 7.8 LIABILITY FOR COLLECTION. TRMSPORTATIQ AND PROCESSING. Any liability incurred by the City as a result of collecting Acceptable Waste or processing it for diversion from landfill, or as a result of causing, franchising, permitting, licensing, authorizing or arranging any of the foregoing, shall be its sole liability, except as expressly otherwise provided herein.
SECTION 7.9 NO CONS,EQUEVIITAL OR PUNITIVE DAMAGES. In no event shall either party hereto be liable to the other or obligated in any manner to pay to the other any special, incidental, consequential, punitive or similar damages based upon claims arising out of or in connection with the performance or non- performance of its obligations or otherwise under this Agreement, or the material inaccuracy of any representation made in this Agreement, whether such claims are based upon contract, tort, negligence, warranty or other legal theory.
SECTION 7.10 Ai1dENDMENTS. Neither this Agreement nor any provision hereof may be changed, modified, amended or waived except by written agreement duly authorized and executed by both parties.
SECTION 7.11 NOTICE OF LITIGATION. Each party shall deliver written notice to the other of any Legal Proceeding to which it is a party and which questions the validity or enforceability of this Agreement executed by the City or the County or any Legal Entitlement issued in connection herewith.
SECTION 7.12 FURTHER ASSURANCES. At any and all times the City and the County so far as may be authorized by law shall pass, snake, do, execute, acknowledge and deliver any and every such further resolutions, acts, deeds, conveyances, instruments, assignments, transfers and assurances as may be necessary or reasonably requested by the other in order to give full effect to this Agreement.
SECTION 7.13 ASSIGNMENT OF AGRE(A) Assizmmnt. Neither this Agreement nor any of the rights or obligations hereunder may be assigned by either party hereto without the prior written consent of the other party, which may be withheld in the other party's sole discretion. Notwithstanding the foregoing; either party may assign this Agreement to another public entity, subject to the reasonable consent of the other party. In such circumstances the party not requesting the assignment shall have the right to demand assurances. of the financial, technical and legal ability of the proposed assignee to undertake the responsrbilities and obligations of the assigning ply.
(B) Sale. The County shall not enter into any agreement for the sale of the Disposal System which provides for an effective date for such sale prior to the termination of this Agreement.
SECTION 7.14 INTEREST DN OVERDUE OBLIGATIONS. Except as otherwise provided herein, all amounts due hereunder, whether as damages, credits, revenue or reimbursements, that are not paid when due shall bear interest at the Overdue Rate on the amount outstanding from time to time, on the basis of a 355 -day year, counting the actual number of days elapsed, and all such interest accrued at any time shall, to the extent permitted by Applicable Law, be deemed added to the amount due, as accrued.
SECTION 7.15 BINDING EFFECT, This Agreement shall bind and inure to the benefit of the parties hereto and any successor or assignee acquiring an interest hereunder consistent with the provisions of Section 7.13 hereof.
SECTION 7.16 NOTICES. Any notice or communication required or permitted hereunder shall be in writing and sufficiently given if delivered in person or sent by certified or registered mail, postage prepaid, to the notice address of the respective parties set forth on the cover page of this Agreer tatiL Changes in the respective addresses to which such notices may be directed may be made from time to time by any party by notice to the other ply,
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0 IN WITNESS WHEREOF, COUNTY and CITY have caused this Ageetnent to be executed by their duly authorized officers or representatives as of the day and year Fust above written.
Date
Date
Data
APPROVED AS TO FORM:
COUNTY COUNSEL
ORANGE COUNTY, CALIFORNIA
By
Date
t3wmom Copy
COUNTY OF ORANGE
By
BY
By
29 Director, OC Waste & Recycling
INAW)
City Representative
City of Newport Beach
[NANMI
City Representative
City of Newport Beach
APPROVED AS TO FORM:
,4.,, (. ff ��
City Attomev
ATTEST:
City Cleric
City of Newport.Beach
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T X[[IN 34uv
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APPENDIX 1
PERCENTAGE OF COUNTY ACCEPTABLE WASTE ATTRIBUTABLE TO PARTICIPATING CITIES FOR PURPOSE OF SECTION 6.2(b)
Jurisdiction
Percentage of County
Acceptable Waste
Anaheim
13.40A
Santa Ana
10.6%
Irvine
7.5010
Huntin0on Beach
6.00/0
Otanze
5.Wo
Garden Grove
5.1%
Fullerton
4.5%
Unincorporated Oran a Coun
4.3%
Costa Mesa
3.61/6
Newport Beach
3.0%
Lake Forest
2.60/6
Buena Park
2.5%
Mission Vi 'o
2.3%
Westminster
2.3%
Yorba Linda
2.3%
Brea
2.1%
Tustin
2.0%
QTress
1.9%
La Habra
1.80/6
San Clemente
1.7%
Fountain Valley
1.6%
Lwm N el
1.6010
Placentia
1.6%
San Juan Capistrano
1.66/o
Laguna Beach
1A%
Dana Point
12010
Stanton
1.1%
Rancho Santa Mamarita
1.0%
Laguna Hills
0.90/0
Seal Beach
0.8%
Aliso Viejo
0.7%
Los Alamitos
0.5010
La Palma
0.3%
Lams Woods
0.20/0
Villa Park
0.2°
Total
100%
(l) Unincorporated County is assumed to be a Participating City for the purposes of determining the Commencement Date m accordance with Section 6.2(b) of this Agreement. (2) A Participating City will only be included for purposing of determining the Commencement Date upon (i) execution of a Waste Disposal Agrt by that Participating City and (ii) execution of a Hauler Acknowledgement(s) by the Franchise Haulers) operating within such Participating City
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APPENDIX 2
Cumulative County Acceptable Waste Tonnage Target to be Used for Purposes of Section 4.2 (B)
Fiscal Year
County AccepwMe Waste
Cumulative County
Tonnage
Areiptable Waste Tonnage
FY 2008-09
3,170,387
3,170,387
FY 2009-10
3,092,806
6,263,193
FY 2010-11
3,185,590
9,448,783
FY 2011-12
3,344,870
12,793,653
FY 2012-13
3,445,216
16,238,869
FY 2013-14
3,514,120
19,752,989
FY 2014-15
3,549,262
23,302,251
FY 2015-16
3,565,608
26,867,859
FY 2016-17
3,582,033
30,449,892
FY 2017-18
3,598,535
34,048,427
FY 2018-19
3,615,115
37,663,542
FY 2019-20
3,631,774
41,295,316
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APPENDIX 3
CUMULATIVE CAPITAL COSTS
to be Used
for Purposes of Section 4-2(A)vi
Fiscal Year
(ending June 30
Annual Capital Costs
Cumulative Capital Costs
2009
$37,939,538
$37,939,538
2010
$59,343,405
$97,282,943
2011
$10,433,979
$107,716,921
2012
$13,678,113
$121 39S 034
2013
$17 25 040
$138,920,074.
2014
$11,259,518
$150,179, 92
2015
$37,682,758
$187,862,350
2016
$&068,800 800
$19 931,150
2017
$10,662XS
$203,593 415
2018
$29,397,498
$232,991,113
2019
$8,263,795
$241,254,908
2020
$45,103,805
$286,358.713
acultion copy
20-393
APPENDIX 4
FORM OF HAULER ACKNOWLEDGMENT
Ex= im copy
20-394
FRANCHISE HAULER ACKNOWLEDGMENT
THIS FRANCHISE HAULER ACKNOWLEDGMENT, dated as of 2009 (the "Acknowledgment"), by and between the City of (the "City"] and {the "Franchise Hauler").
WITNESSETH
[WHEREAS, the City and the Franchise Hauler have heretofore entered into an agreement entitled dated as of (the "Franchise"); and[
[WHEREAS, the City has issued to the Franchise Hauler a permit, license, approval or other authorization the "Authorization") which allows the Franchise Hauler to provide solid waste collection services within the City; and]]
[WHEREAS, the Franchise [SUBSTTfUfE "AUTHORIZATION THROUGHOUT IF APPLICABLE]] provides for the collection and disposal of certain municipal solid waste as described therein ("Franchise Waste") generated within the City; and]
WHEREAS, Orange County (the "County") owns, manages and operates a sanitary landfill disposal system for municipal solid waste generated within the County; and WHEREAS, the City and the County have heretofore entered into a Waste Disposal Agreement, dated as of 2009 (the "Disposal Agreement") determining that the execution of such Disposal Agreement will serve the public health, safety and welfare of the residents of the City and County, by maintaining public ownership and stewardship over the Orange County Landfill Disposal System (the "Disposal System"); and WHEREAS, under.the bisposal Agreement, the County has agreed to provide long-term disposal of all municipal solid waste generated within the City and the City has agreed to exercise all legal, and contractual power which it possesses -from time to time to deliver or cause the delivery of such waste to the Disposal System; and WHEREAS, the provisions of the Waste Disposal Agreement which guarantee capacity for the long term disposal of waste at specified rates generated in the City provide significant benefits to the Franchise Hauler, WHEREAS, notwithstanding any Franchise provisions to the contrary, the Franchise Hauler explicitly acknowledges the aforementioned benefits to the City, the County and the Franchise Hauler in providing for the disposal of all Franchise Waste to the Disposal System; and WHEREAS, the City and the Franchise Hauler desire to enter into this Acknowledgment to assure that the City and the Franchise Hauler will be entitled to the benefits of the Waste Disposal Agreement and to assure conformity with the waste delivery obligations which have been agreed to by the City under the Disposal Agreement through the delivery of waste by the Franchise Hauler to the Disposal System; and WHEREAS, the Franchise Hauler's agreement to deliver Franchise Waste to the Disposal System under this Acknowledgment is given in consideration of the Franchise Haider's right to receive the'Contract Rate for such disposal as provided in the Disposal Agreement,
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:
1. Capitalized terms used and not otherwise defined herein are used as defined in the Disposal Agreement.
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20-395
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2. The Franchise Hauler hereby waives any right which it may possess under applicable law to contest on any ground, constitutional, statutory, case law, administrative or otherwise, (a) the right, power or authority of the County or the City to enter into or perform their respective obligations under the Disposal Agreement, (b) the enforceability against the County or the City of the Disposal Agreement, or (c) the right, power or authority of the City to deliver or cause the delivery of all Controllable Waste to the Designated Disposal Facility in accordance with this Acknowledgment.
3. The City and the Franchise Hauler each hereby represent that this Acknowledgment has been duly authorized by all necessary action of their respective governing bodies.
4. The Franchise Hauler shall deliver or cause to be delivered all Controllable Waste (including all residue from the proccssgng by any means, wherever conducted, of Controllable Waste), to the Disposal System, and shall otherwise assist the City in complying with its obligations under the Waste Disposal Covenant in Section 3.1 of the Disposal Agreement.
S. The Franchise Hauler shall not haul Controllable Waste to any materials recovery facility, composting facility, intermediate processing facility, recycling cater, transfer station or other waste handling or management facility unless the contract or other agreement or arrangement between the Franchise Haug and the operator of such facility is sufficient in the opinion of the County to assure that the Residue from such facility constituting City.. Acceptable Waste (or Tonnage equivalencies) and the City Acceptable Waste transferred by such facility shall be delivered to the Designated Disposal Facility in compliance with the Waste Disposal Covenant.
6. The -Franchise Hauler shall pay the Contract Rate imposed by the County at the Designated Disposal Facility for the disposal of all Controllable Waste, which rate shall be subject to potential adjustment necessary to reflect the circumstances set forth in the Disposal Agreement.
7. Nothing in this Acknowledgment is intended to restrict any right or responsibility explicitlygiven the Franchise Hauler in the Franchise to recycle City Acceptable Waste, except as provided in paragraph 5 above with respect to Residue from any such recycling operations.
8. The obligations of the Franchise Hauler under this Acknowledgment shall apply notwithstanding any provision of the Franchise which may conflict herewith.
9. This Acknowledgment may be enforced by the City by any available legal means. In any enforcement action by the City, the burden of proof shall be on the Franchise Hauler to demonstrate compliance herewith.
10. This Acknowledgment shall be in full force and effect and shall be legally binding upon the City and Franchise Hauler from the dated hereof and shall continue in full force and effect until the earlier of (i) the end of the term of the Franchise or (ii) the end of the term of the Disposal Agreement.
11. The City and Haulm agree that the County shall be an express third party beneficiary of this Acknowledgment, and shall be entitled to independently enforce the obligations of the Franchise Hauler hereunder.
12. The Hauler agrees to assist the County in verifying tonnage collected by the Franchise Hauler and providing information required by the County. Hauler will provide upon request refuse towage collected within the County, and outside the County (if relevant to confirming tonnage origination), separated by jurisdiction, by load type (residential, commercial, rolloff box), and by facility to which it was delivered (specify which landfill or transfer station). Hauler will provide customer service levels and route lists. Hauler will cooperate with County audits to verify reported origin of tonnage by making records and personnel available to the County and/or its auditors.
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20-396
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IN WUNESS WHEREOF, the parties have caused this Acknowledgment to be executed by their duly authorized officers -Dr representatives as of day of , 2009.
CFFY OF
Signature:
Printed Name:
Title:
(Franchise Hauler)
Signature:
Printed Name:
Title:
20-397
ATTACHMENT J
Annual Contractor Compensation Adjustments
The annual adjustments to Contractor's compensation shall be completed as described in this Attachment J. The costs in Attachment D-1 shall be effective from January 15, 2022 through June 30, 2022. The first annual adjustment shall be performed to calculate Contractor's costs for the period July 1, 2022 through June 30, 2023. The costs in Attachment D-1 shall be adjusted annually each July 1 throughout the Term of the Agreement.
1. General Calculation Procedures
A. Rounding Protocol
The following rounding protocol shall be used in the calculations described herein: For the calculation of the percentage change in all indexes described in this Attachment J, the calculations shall be rounded to one decimal place. (Example: 2.3% or 0.2%). For calculation of all costs and cost components described in this Attachment J, the calculations shall be rounded to two decimal places. (Example: $2.39).
The numbers 1,2,3, and 4 in all calculations shall be rounded down. (Example: If the result of the calculation were 7.344, the final figure would be 7.3.) The numbers 5, 6, 7, 8 and 9 in all calculations shall be rounded up. (Example: If the result of the calculation were $3.468, the final figure would be $3.47).
B. Changes to Indices Used
In the event that the standard reference base period for any index used herein is revised, the calculations shall be performed using the officially released data published by the Bureau of Labor Statistics.
If an index used herein is discontinued, the successor index with which it is replaced, shall be used for subsequent calculations. If no successor index is identified by the Bureau of Labor Statistics, the government index which is most comparable shall be used.
C. Use of Final CPI Index and "Preliminary" PPI Index Issued by Bureau of Labor Statistics
The annual adjustments will be made in late spring of each year of the Term. The Consumer Price Index ("CPI") listed in Subpart 2 below is made available by the Bureau of Labor Statistics within 15 days after the close of each month. Therefore, the CPI for the twelve (12) month period described herein, will be available in time to complete the annual adjustment calculation prior to the July 1 start date for the adjusted compensation amounts. (Note: for the CPI there is no "Preliminary" version, only the "final" version issued by the Bureau of Labor Statistics.) Attachment J Page 1 of 9
20-398
ATTACHMENT J
Annual Contractor Compensation Adjustments
The Producer Price Index ("PPI) referred to herein, is made available by the Bureau of Labor Statistics on a more lagging basis. The "Final" version of the PPI Index for the period through December of any year, will not be available in time for the annual adjustment calculation to be completed prior to the July 1 start date for the adjusted compensation amounts. Therefore, the parties agree the "Preliminary" version of the PPI Index listed below shall be used in the calculation each year.
2. Annual Adjustment Method Including Disposal Cost
Adjustment Method for Contractor Compensation in
Attachment D-1
A. Cost Components for Compensation Adjustment Indices
Each of the Contractor's line item costs listed in Attachment D-1 consist of the following cost component categories and are weighted as shown in the table below. Each cost component shall be adjusted by the change in the corresponding index below.
*If an index is discontinued, an alternate index (as described above) must be approved by City.
**This index may be accessed here:
httr)s://data.bls.gov/timeseries/CUURS49ASA0
Attachment J
20-399
Percent of Cost
Cost Category
(Weighting)
Notes
Actual tip fee at the Orange County
Disposal
28%
Landfill System as of the effective date of
the adjustment.
Producer Price Index WPU 0531, Not
Fuel
5%
Seasonally Adjusted, Fuels and related
products and power, natural gas*.
Consumer Price Index for All items less
food and energy in Los Angeles -Long
Beach -Anaheim, CA, all urban consumers,
All Other Costs
67%
not seasonally adjusted
(CUURS49ASAOLIE), or 2.5%, whichever is
lower**
Total
100%
Total adjustment not to exceed 5%
increase in any year
*If an index is discontinued, an alternate index (as described above) must be approved by City.
**This index may be accessed here:
httr)s://data.bls.gov/timeseries/CUURS49ASA0
Attachment J
20-399
ATTACHMENT J
Annual Contractor Compensation Adjustments
B. Calculation Methodology.
Contractor's compensation in Attachment D-1 will be adjusted using the component weightings identified in "A" above. The adjustment shall be calculated as follows:
Step One. Calculate the percentage increase or decrease in each index listed above. The increase or decrease in the published index for fuel (PPI), and all other (CPI) will be the change in the average annual published index between the calendar year ended the December prior to the July 1 compensation adjustment date and the prior twelve (12) month period (see calculation example below), unless the change in the CPI exceeds a two and one-half percent (2.5%) increase.
In such event, the costs labeled "All Other Costs" in the table above shall be adjusted by two and one-half percent (2.5%). The increase or decrease in the Disposal component shall be the change in the actual Disposal tip fee charged by the County of Orange as of July 1 of the year of the adjustment (pursuant to the City's landfill contract with the County in Attachment "I").
Step Two. Cost components as a percentage of total costs for the first compensation adjustment are provided in the table above. The percentage of each Cost Component for each subsequent annual adjustment (beginning with the adjustment to become effective July 1, 2023) shall be as calculated in Step Four described herein. For Step Two of each subsequent annual adjustment, use the percentage for each Cost Component recalculated in Step Four during the prior year's compensation adjustment.
Multiply the percentage changes for each compensation adjustment component by that component's weighting and add these resulting percentages together to obtain the total weighted change to the compensation.
Step Three. Multiply the total weighted percent change from Step Two by the existing compensation to calculate the increase or decrease to the maximum compensation. Add the compensation increase or decrease to the existing compensation to arrive at the newly adjusted compensation.
Step Four. Recalculate the weightings for the following year based upon these changes so that the sum of the three values equals 100%. To do so, divide the adjusted cost component weightings by the total sum of the three cost component weighting values so that the cost components are reweighed to equal 100%.
Attachment J Page 3 of 9
20-400
ATTACHMENT J
Annual Contractor Compensation Adjustments
Sample Calculations
Note: The costs and numbers in the sample calculations in this Attachment J are for example only and do not reflect the actual costs or adjustments that will be made.
Step 1: Calculate Percentage Change in Indices
Step 2: Determine Components
A
B
C
E
F
Percent Change in Index (Column
Adjustment
Category
Percent
Weighted
Index
Old Index Value
New Index Value
B/Column A = "X"). X/Column A =
Row
Factor
Adjustment Factor
Index
% change (round to 1 decimal)
1 Disposal
(1)
$36.09
$37.00
2.5%
2 Fuel
(2)
67.00 70.00
4.5%
3 All Other
(3)
282.388
286.680
1.5%
Step 2: Determine Components
Attachment J
20-401
D
E
F
Cost Factor
Total
Category
Percent
Weighted
Change in
Adjustment Factor
Index
Weighted as a %
Change
Index from
of Component
(Columns D x
Column (C)
Row
Total (4)
E)
4 Disposal
(1)
28%
2.5%
0.7%
5 Fuel
(2)
6%
4.5%
0.3%
6 All Other
(3)
66%
1.5%
1.0%
7 Total (See Footnote 5)
100%
2.0%
Attachment J
20-401
ATTACHMENT J
Annual Contractor Compensation Adjustments
Step Three: Apply Percentage Change to Costs
Attachment J
20-402
G
H
I
J
Cost
Total
Increase
Adjusted
Weighted
or
Cost
Row
Cost Categories
Current
Percentage
Decrease
(Column
Cost (5)
Change
(Column
(from
G x
+
Column F)
Column
Column
mn I)
H)
8 Customer collection - City
$333,846
2.0%
$6,677
$340,523
9 Bulky Item Collection/month
$549
2.0%
$11
$560
10 Sharps Collection/month
$2,285
2.0%
$46
$2,331
11 HHW Door-to-Door/month
$11,431
2.0%
$229
$11,660
12 Emergency Collection Cost/hour
$138
2.0%
$3
$141
13 Customer collection - Newport Coast
$63,416
2.0%
$1,268
$64,684
14 Enhanced SB 1383 -mandated programs
$239,557
2.0%
$4,791
$244,348
15 40 -yd Load of Bulk Compost provided by contractor
$175.00
2.0%
$3.50
$178.50
16 1 pallet (48 bags) of compost provided by Contractor $98.05
2.0%
$1.96
$100.01
24 pallet load of bagged compost provided by Contractor (48 $2353.26
2.0%
$47.07
$2,400.33
17 bags/pallet)
18 Hourly Cost Per Additional Temporary Customer Service Representative $35.00
2.0%
$0.70
$35.70
Collection of Non -containerized Materials During Grace Period per $2.47
o
2.0 /o
$0.05
$2.52
19 incident
Extra MSW Cart Charge paid by City during Extra Service Charge Delay $6.09
o
2.0 /o
$0.12
$6.21
20 Period
Extra Recycling Cart Charge paid by City during Extra Service Charge $3.41
2.0%
$0.07
$3.48
21 Delay Period
Extra Food Scrap/Green Waste Cart Charge paid by City during Extra $4.11
°
2.0 /o
$0.08
$4.19
22 Service Charge Delay Period
Standard Valet Cart Service Charge paid by City during Extra Service $8.30
o
2.0%
$0.17
$8.47
23 Charge Delay Period
Premium Valet Cart Service Charge paid by City during Extra Service $27.68
°
2.0 /o
$0.55
$28.23
24 Charge Delay Period
Attachment J
20-402
ATTACHMENT J
Annual Contractor Compensation Adjustments
Step Four: Re -weight Cost Components
(1) Disposal charge at the Orange County Landfill system per agreement in Attachment 1 (2) Producer Price Index WPU0531, not seasonally adjusted, Fuels and related products and power, natural gas -average annual change
(3) Consumer Price Index for All items less food and energy in Los Angeles -Long Beach -Anaheim, CA, all urban consumers, not seasonally adjusted (CUURS49ASAOLIE) average annual change limited to 2.5% per year.
(4) First year based on Attachment D-1. After the first adjustment, this column comes from Column J of the previous year's cost adjustment
(5) Example shown. Adjustment applies to all applicable compensation categories.
Attachment J
20-403
K
L
M
N
O
Adjusted
Change In
Cost
Cost Components
Percentage
Reweighed to
Adjustment
Cost
Change in
Cost
Component
Equal 100%
Index
Component
Components
Weightings
Factor
Index
(Column N Row
(Column D)
(Column K x
(Column K
(Column E)
divided by Column
Column L)
+ Column
N Total)
Row
M)
25 Disposal (1)
28.0%
2.5%
0.7%
28.7%
28.1%
26 Fuel (2)
6.0%
4.5%
0.3%
6.3%
6.2%
27 All Other (3)
66.0%
1.5%
1.0%
67.0%
65.7%
28 Total
100.0%
102.0%
100.0%
(1) Disposal charge at the Orange County Landfill system per agreement in Attachment 1 (2) Producer Price Index WPU0531, not seasonally adjusted, Fuels and related products and power, natural gas -average annual change
(3) Consumer Price Index for All items less food and energy in Los Angeles -Long Beach -Anaheim, CA, all urban consumers, not seasonally adjusted (CUURS49ASAOLIE) average annual change limited to 2.5% per year.
(4) First year based on Attachment D-1. After the first adjustment, this column comes from Column J of the previous year's cost adjustment
(5) Example shown. Adjustment applies to all applicable compensation categories.
Attachment J
20-403
ATTACHMENT J
Annual Contractor Compensation Adjustments
3. Example Cost Adjustment Formula — Calculation for
Average Annual Change in Published Price Indices
Cost adjustment indices for fuel (PPI), and "all other" are calculated using the average annual change in the published index (with " all other" subject to a 2.5% per year increase cap) as demonstrated in the example below, measured for the twelve (12) months ended the December before each compensation adjustment, as compared to the twelve months ended the prior December. The Bureau of Labor Statistics publishes these monthly indices.
The following example is for the Consumer Price Index for All items less food and energy in Los Angeles -Long Beach -Anaheim, CA, all urban consumers, not seasonally adjusted (CUURS49ASAOL1 E) that is used to adjust the "all other" cost components. If a cost adjustment based on this CPI index were to be implemented as of July 1, 2021, the twelve (12) month average annual index for the period ended December 2020 of 282.388 would have been the "New Index Value" to be used in Column B of the example cost adjustment formulas in this Attachment J, and the twelve (12) month average annual index for the period ended December 2019 of 277.102 would have been the " Old Index Value" in Column A. This would have resulted in a 1.9% increase to the "all other" cost components in Column C.
All items less food and energy in Los Angeles -Long Beach -Anaheim, CA, all urban consumers, not seasonally adjusted (CUURS49ASAOL1 E) Year Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec Annual 2019 273.579 273.716 274.954 276.185 276.421 277.384 277.590 278.131 278.935 279.732 279.781 278.812 277.102 2020 281.022 282.124 280.815 280.885 281.340 282.329 283.839 283.752 282.712 283.055 283.873 282.907 282.388 Attachment J
20-404
ATTACHMENT J
Annual Contractor Compensation Adjustments
4. Annual Adjustment Method For Prices Contractor Direct - Bills to Customers for Extra Services in Attachment D-2 A. Timing of Adjustment of Prices in Attachment D-2.
The prices in Attachment D-2 shall be in effect from January 15, 2022 through June 30, 2022. Each of the prices listed in Attachment D-2 shall be adjusted to become effective July 1, 2022 and shall also be adjusted each July 1 thereafter, for the duration of the Term of the Agreement as follows.
B. Calculation Methodology.
Multiply each price in Attachment D-2 by the total weighted average change calculated in Step Two of Section 1 above. (See Table titled "Step Two — Determine Components" Row 7 of Column "F".
Sample Calculation:
Premium Valet Service — Initial Price as of January 15, 2022:
$27.68 per month
$27.68 x 2.0% = $0.55 + $27.68 = $28.23 per month (new Price)
5. Adjustment Method For Monthly Cost Per Residence (Only Used For Calculation in Attachment Z and Only if Directed by City)
The parties have determined and agreed that the monthly cost per residence to receive the basic level of Residential service from Contractor is $24.08 as of the Effective Date. For purposes of the calculations described in Attachment Z, the annual adjustment is applied to the Monthly Cost per Residence as follows:
A. Timing of Adjustment of Per Residence Collection Cost The "Monthly Cost Per Residence" of $24.08 (shown in Attachment Z) shall be in effect from January 15, 2022 through June 30, 2022. This cost shall be adjusted to become effective July 1, 2022 and shall also be adjusted each July 1 thereafter, for the duration of the Term of the Agreement as follows. This adjusted cost is only used for City -directed addition of specific groups of Residences and/or a cumulative increase of 40 or more Certificates of Occupancy issued by the City for a newly developed parcel pursuant to Section 12.07 and Attachment Z of the Agreement, and for no other purpose.
Attachment J Page 8 of 9
20-405
ATTACHMENT J
Annual Contractor Compensation Adjustments
B. Calculation Methodology.
Multiply the "Monthly Cost Per Residence" in Attachment Z by the total weighted average change calculated in Step Two of Section 1 above.
Sample Calculation:
"Monthly Cost Per Residence" — Initial amount as of the Effective Date of the Agreement: $24.08/month
$24.08 x 2.0% = $0.48 + $24.08 = $24.56 per month (new Monthly Cost Per Residence)
Attachment J
20-406
ATTACHMENT K
Reports to be Submitted to City
These reports are required at a minimum. The City has the right to request additional reports, to direct Contractor to modify format and layout, and to require that Contractor use existing City report formats. All report formats shall be approved by City and shall be submitted electronically (i.e. via e-mail attachment). Paper copies shall be made available upon request by the City.
The reporting year shall be the Calendar Year (i.e. January 1 st through December 31 st). For the initial year of the Term, the reporting period shall be January 15, 2022 through December 31, 2022. City will work with Contractor during the transition and the first year of operations to tailor and refine reporting formats to the City's desired level of detail.
Contractor shall provide, for all monthly, quarterly, and annual reports, a certification statement, under penalty of perjury, signed by the responsible corporate official, that the reports are true and correct.
Monthly Reports
Monthly reports shall include a Year -To -Date summary. Monthly reports shall be submitted within twenty-five (25) calendar days after the end of each month for information on preceding the month. The information listed may be combined into one or several reports and shall be the minimum reported:
1. Diversion Program(s) tonnage and goal summary listed by program and DPS Code.
2. Calculation of the Diversion rate achieved year-to-date.
3. Tons Collected and Diverted by Sector: Tons Collected and the Tons Diverted in the City (using the characterization study -derived Diversion and Residue percentages - see Attachment N). Tons Collected and Diverted shall be grouped by each type of Collection service for each class of Customer, as described below:
Recyclable Materials Tons Collected and Diverted from Residential Customers Co -collected Food Scraps and Green Waste Tons Collected and Diverted from Residential Customers
• MSW Tons Collected from Residential Customers
4. Tons Delivered to, and Diverted by, Processing Facilities: Report shall list the number of Tons that were delivered to, and Diverted by, each Compost Facility, Clean MRF, and all other Processing Facilities used. Diversion rates shall be based upon the results of the characterization studies described in Attachment N.
5. All Materials Diverted by Contractor. Statement showing types of materials and quantities sold (in Tons).
6. Number of Tons of MSW Disposed during the month from both Contractor's Collection routes and Tons of Residue Disposed from each Processing Facility used by Contractor to process Recyclable Materials, and Co -collected Food Scraps and Green Waste for materials from City. The report shall include backup documentation showing how the Tons of Residue from each Facility were calculated and allocated to City. The report shall also include the name, telephone number and e-mail address of the contact person Attachment K
20-407
ATTACHMENT K
Reports to be Submitted to City
at each Processing Facility that the City can contact with questions about the allocations and/or reported Residue percentages and/or the number of Tons processed from City.
7. Narrative summary of problems encountered including scavenging, incidents of Contamination found during on-site field Container Contamination audits, including a listing of specific location addresses for each and actions taken with recommendations for the City, as appropriate.
8. Summary of service complaints, with a description of the nature of the complaint and how it was resolved. Reports shall include customer service metrics such as number of inbound customer service calls, average time spent per call with customer, average monthly hold time for customers, average number of rings before a call was answered, number of instances of a customer selecting and receiving a call-back in lieu of a hold, number of escalations to a customer service manager, and number of calls that were not answered.
9. Summary, and type, of Customers that cancelled Recycling and/or Co -collected Green Waste and Food Scraps service. The reasons for cancelled service must be provided with report.
10. Recycling Coordinators' activity, showing individual interactions with residences, including the date, a description of, and the nature of each outreach/contact effort; status of program implementation or educational efforts; issues with recycling such as Contamination or overflow; objections to implementing Diversion programs; and other information as directed by the City. The results from most recent on-site field Container Contamination audits, as described in Attachment N, shall also be included in the Tracking Spreadsheet for each account and for each line of service used by each account.
11. The number of warning notices issued to Customers for Contamination and the account information associated with these notices pursuant to the protocol in Attachment B.
12. The number of warning notices issued to Customers for Non -containerization and the account information associated with these notices pursuant to the protocol in Attachment B.
13. Monthly number of Bulky Items Collected and Tons of bulky items delivered for repair, re -use, re -purposing, or recycling and Tons Disposed.
14. A listing of all accounts, in Excel format, including:
a. Customer number
b. Customer name
c. Street address
d. Billing address
e. All service information, including
i. Line of service (i.e. MSW, Food Scraps, Recyclable Materials) ii. Container inventory
iii. Container size
f. Service Contact name
Attachment K Page 2 of 5
20-408
g. Service Contact number
h. Billing Contact Name
i. Billing Contact Number
15. Number of Customers NOT participating in Diversion programs provided by Contractor (i.e., Single Stream Recyclable Materials Collection Program, Co -collected Green Waste and Food Scraps Diversion Program). This section of the report must also include the total number of Carts in use for Single Stream Recyclables, Co -collected Green Waste and Food Scrap Diversion, and MSW Collection/Disposal service.
16. Number of Residential accounts with Extra Cart service for all streams (MSW, Recyclables, and Co -collected Green Waste and Food Scraps).
17. Number of Residential accounts participating in valet service and any other Extra service as described in Attachment D-2.
18. Number of sharps containers distributed, collected and number of pre -paid mailer sharps kits distributed to residents during the prior calendar month. Location in City that Customers can pick up kits (in addition to having them mailed to homes).
19. HHW monthly report per Section 3 of Attachment B.
20. Inventory of Residential curbside Containers by size and stream
21. The number of kitchen pails distributed during the reporting period
22. A summary table of SB 1383 compliance information, including the following items:
a. The total number of Customers that have a Recyclable Materials Program, Co - collected Green Waste/Food Scrap Diversion Program provided by Contractor. b. The number of Customers that do not have a Recyclable Materials Program or a Co -collected Green Waste/Food Scrap Diversion Program provided by Contractor.
c. The number of Customers that have refused service.
23. Written record of all Hazardous Waste discovered through the Hazardous Waste exclusion program described in Article 4 of the Agreement.
Quarterly Reports
Within 30 days after the completion of each quarter of the Calendar Year, Contractor shall submit a Quarterly Report. The report shall provide a quarterly summary of the monthly reports in addition to the following at a minimum:
1. Report of any Characterization Studies completed during the reporting quarter as described in Attachment N.
2. Copies of promotional and public education materials sent during the quarter.
3. A narrative description of problems encountered, and actions taken, including efforts to deter and prevent Scavenging and Contamination of Recyclable Materials, and Green Attachment K Page 3 of 5
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Waste/Food Scraps. The narrative is to include a description of Tons rejected for sale after processing (type of material, tonnage), reason for rejection, and Contractor's Disposal method for the rejected materials.
4. Recycling sales revenue by type of material marketed on a gross and net basis.
5. Tons into each composting facility, Tons of final product sold and end-users/markets for finished compost.
6. A list and narrative description of monthly trainings held on prevention of spills of fluids from Collection vehicles, including employee group(s) trained, the trainer that presented each training and the topics covered.
7. Compost giveaway events — report within 30 days of event with number of participants and quantity of mulch or compost distributed and origin of compost.
8. Shredding events (2 per year) report on number of customers served, tons of paper diverted, and location.
Annual Reports
On or before March 15, 2022, and on or before the same date in all subsequent years of the Term, Contractor shall submit to the City a written year-end Annual Report, in a form approved by the City. The annual report shall include information as to timely compliance with Contractor's Diversion obligations and MSW Collection and the following information for the Calendar Year then ending (Note: the report to be submitted on or before March 15, 2022 shall be for calendar year 2021 during which Contractor provided to City Residential Divertable Materials Collection and processing services and Residential Municipal Solid Waste Collection and Disposal services pursuant to a prior contract with the City. Data in the 2021 report is required by City in order to comply with CalRecycle annual reporting requirements):
1. Annual SB 1383 compliance status report, with a detailed work plan to meet minimum performance standards and earning of extension(s) set forth in Article 6 of the Agreement.
2. A report of the previous Calendar Year's activities in the City, including a cumulative summary of the Monthly and Quarterly Reports, and information and statistics with respect to City's compliance with the Act.
3. A complete inventory of equipment used to provide all services, including listing of the following items:
a. Vehicles in service
i. model year of the body for each vehicle in service
ii. model year of the chassis for each vehicle in service iii. vehicle unit number for each vehicle in service
iv. VIN number for each vehicle in service
v. license plate number for each vehicle in service
vi. results of the average model year calculations described in Attachment F b. Containers by size and material or waste stream type
4. Number of routes, type of route, and route hours per day.
Attachment K Page 4 of 5
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5. Number of accounts and Cart information as requested in the Monthly reports.
6. Changes in Solid Waste management and Recycling/Diversion efforts, including projections and proposed implementation dates and costs, recommended by Contractor and recommended amendments to the City's Source Reduction and Recycling Element based on developments in technology or additional Diversion opportunities identified by Contractor. Contractor's recommendations with respect to compliance with the Act and other Diversion requirements shall state the specific requirement that the implementation of the recommendation(s) is intended to satisfy.
7. Number of sharps containers distributed, collected and number of pre -paid mailer sharps kits distributed to residents during the prior calendar year. Samples and copies of public education materials and web site information on proper sharps disposal distributed during the prior year.
8. Total number of Customers that used special collection programs, including number of Residential Customers that requested Bulky item collection, a -waste collection, u -waste collection, Freon collection, and sharps collection/mail-back programs.
9. Total number of customers that attended compost giveaway event(s) and the number of tons of compost distributed during the event(s).
10. Total number of customers that attended paper shredding event(s) and the number of tons of paper collected and diverted during the event(s).
11. Total tons of Compost sold to the City during the previous year
12. SB 1383 reporting items
a. The number of total generators receiving Food Scraps/Green Waste Collection service
b. Number of route reviews conducted
c. Number of waste characterizations conducted
d. Number of field Container Contamination audits conducted e. Number of times notices or targeted education materials were issued by Contractor
f. The number of notifications received from a solid waste facility operator regarding materials Contamination
g. Number of households that do not have Food Scraps/Green Waste cart h. Number of households that do not have Recyclable Materials cart Attachment K Page 5 of 5
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ATTACHMENT L
Performance Bond
KNOW ALL PERSONS BY THESE PRESENTS, that
hereinafter called the
PRINCIPAL, and
a corporation duly organized
under the laws of the State of having its principal place of business at , in the State of ,
and authorized to do business as an admitted surety insurer in the State of California, hereinafter called the SURETY, are held and firmly bound to the City of NEWPORT BEACH, a municipal corporation in the State of California, hereinafter called the OBLIGEE, in the sum of Dollars ($ ) lawful money of the United States, for the payment of which, well and truly to be made, we bind ourselves, our heirs, executors, administrators and successors, jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION IS SUCH THAT:
WHEREAS, the PRINCIPAL has entered into a Contract with the OBLIGEE for the Collection, Transportation Processing and Diversion of Recyclable Materials, Food Scraps and Green Waste and For the Collection, Transportation and Disposal of Municipal Solid Waste ("Contract") and said PRINCIPAL is required under the terms of said Contract to furnish a bond of faithful performance of said Contract.
NOW, THEREFORE, if the PRINCIPAL shall well and truly perform and fulfill all of the undertakings, covenants, terms and agreements of said Contract, and any modification thereto made as therein provided, at the time and in the manner therein specified, then this obligation shall become null and void, otherwise it shall be and remain in full force and virtue.
The SURETY, for value received, hereby agrees that no change, extension of time, alteration or addition to the terms of the Contract or to the work to be performed there under, or the specifications incorporated therein shall impair or affect its obligations and its bond, and it hereby waives notice of any such change, extension of time, alteration or addition to the terms of the Contract or the work or the specifications.
PROVIDED, however, that the SURETY shall not be liable (1) as respects to any obligations related to said Contract occurring after one (1) year from (MONTH), 2021, unless this Bond is extended, (2) as respects to PRINCIPAL'S obligation to procure a replacement performance bond, as provided for in Section 11.03 of the Contract. This Bond may be extended after (MONTH) 2022 in the sole discretion of the SURETY by means of a continuation certificate signed at least ninety (90) days prior to (MONTH), 2022 and thereafter at least ninety (90) days prior to the expiration of the Bond as extended.
In the event suit is brought upon this Bond by the OBLIGEE and said OBLIGEE is the prevailing party, the SURETY shall pay, in addition to the sums set forth above, all costs Attachment L
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ATTACHMENT L
Performance Bond
incurred by the OBLIGEE in such suit, including reasonable attorneys' fees to be fixed by the court.
IN WITNESS WHEREOF, the above bounded parties have executed this instrument this day of , 2021, the name and corporate seal of each corporate party being hereto affixed and these presents duly signed by its undersigned representative, pursuant to authority of its governing body.
By:
SURETY:
By:
Attorney -I n- Fact
Note: To be considered complete, both the principal and surety must sign this performance bond. In addition, the surety's signature must be notarized and a copy of the surety's power of attorney must be attached 20-413
ATTACHMENT M
Bond Continuation Certificate
In consideration of the premium charged,
hereby continues in force:
Bond #:
Dated:
In the amount of:
Newport Beach, for the period:
Beginning:
And Ending:
conditions of said Bond, PROVIDED that the liability of:
(NAME OF SURETY)
on behalf of the City of
subject to all terms and
shall not exceed in the aggregate the amount above written, whether the loss shall have occurred during the term of said bond or during any continuation or continuations thereof, or partly during said term and partly during any continuation or continuations thereof.
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Signed and Sealed:
ATTACHMENT M
Bond Continuation Certificate
Attorney -In -Fact
[ACKNOWLEDGEMENT]
(date)
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Attachment N
Characterizations of Divertible Materials and MSW and Periodic Onsite Field Cart Contamination Audit Protocols
Contractor shall conduct periodic characterizations of Divertible Materials and MSW and periodic on-site field Contamination audits to determine the levels of Contamination in the MSW, Recyclable Materials, and Co -collected Food Scrap/Green Waste Carts.
The characterizations are of (a) Divertible Materials that will be delivered to Processing Facilities; and (b) MSW that will be delivered to a Disposal Site. The on-site field Contamination audits are of Carts on routes Collecting Divertible Materials and MSW.
The purposes of the characterizations and audits are as follows:
(i) City compliance with CCR Title 14, Division 7, Chapter 12 Section 18984.5 for container Contamination minimization;
(ii) Measuring Contractor's progress toward earning the extensions of the Term described in Section 6.06; and
(iii) Determining the quantities and types of Contamination in Divertible Materials and MSW being Collected in the City in order to identify sources of the Contamination and to reduce the levels of Contamination through additional public outreach, training, and enforcement of local, state and federal laws and regulations regarding Contamination.
The characterizations described herein are not intended to fulfill the requirements of, nor substitute for, the procedures described in CCR Title 14 Division 7, Chapter 3 Section 17409.5 et seq. that must be performed at Processing Facilities by the owner/operator.
Table 1 provides a summary of the characterizations and audits required in each year of the Term. The specific protocols that shall be used to conduct the characterizations and audits are also included in this Attachment N. The City or its representative may be present for any characterization or field Contamination audit described in this Attachment N. Contractor shall provide no less than thirty (30) calendar days advance notice to the City of when each characterization and audit is scheduled.
Attachment N Page 1 of 29
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Attachment N
Characterizations of Divertible Materials and MSW and Periodic Onsite Field Cart Contamination Audit Protocols
Table of Contents
1. Characterization Protocols for Divertible Materials and MSW..........................................3 1a. Characterization Protocol for Recyclable Materials Being Delivered to Clean MRF ..................................................................................................................................................... 3 Timing: ................................................................................................................................... 3 Methodology: .......................................................................................................................... 4 1 b. Characterization Protocol for Co -collected Food Scraps/Green Waste....................7 Being Delivered to Processing Facilities...............................................................................7 Timing: ................................................................................................................................... 7 Methodology: .......................................................................................................................... 7 1c. Characterization Protocol for MSW Being Delivered to Disposal Site.....................I l
Timing: .................................................................................................................................
I I
Methodology: ........................................................................................................................
I I
l.d. Requirements if Contamination exceeds 25%: ....................................................................... 14 2. Residential On-site Field Cart Contamination Audits.......................................................14 Timing: ...................................................................................................................................... 14 Methodology.........................................................................................................................15 Reporting..................................................................................................................................16
3. Assessment of Phase 1 and Phase 2 Performance Metrics...........................................18 Phase1 timing: ......................................................................................................................... 18 Phase2 timing: ......................................................................................................................... 18 3.a. Assessment of Phase 1 Performance Metrics...........................................................18
3.b. Assessment of Phase 2 Performance Metrics...........................................................19 Attachment N Page 2 of 29
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Attachment N
Characterizations of Divertible Materials and MSW and Periodic Onsite Field Cart Contamination Audit Protocols
Table 1. Summary Table of Characterizations and On-site Field Contamination Audits in Attachment N
1. Characterization Protocols for Divertible Materials and MSW Note: As used herein "Residential" includes all Residences that are provided Collection service of wheeled Carts by Contractor including, but not limited to, single family homes, Gated Developments, HOA's and Mobile Home Parks. "Stream" refers to the type of material: Recyclable Materials, Co -collected Food Scraps/Green Waste, and MSW. 1 a. Characterization Protocol for Recyclable Materials Being Delivered to Clean MRF
The following protocol shall be used to conduct characterizations of Recyclable Materials being delivered to the Clean MRF prior to processing.
Timing: Characterization studies shall be conducted two (2) times each year of the Term (including any extensions described in Article 6) for the Recyclable Materials stream so that each study selects a sample during the `high season' (June through September) and during the low season (October through May) as shown in the table provided as Exhibit N-1 to this Attachment (Note: The quarters refer to calendar year quarters as noted in the footnote in Exhibit N.1). The first characterization shall take place beginning Quarter 1, 2022. The timing for when the characterization studies are conducted shall be staggered so that after two (2) years, one (1) characterization shall have taken place during each calendar quarter, with two (2) characterizations completed during the high season and two (2) during the low season. For example, for contract year 1 (1/15/2022 —12/31/2022), the Contractor shall conduct one (1) characterization study of Recyclable Materials in Calendar Quarter 1, 2022 (low season) and Calendar Quarter 3, 2022 (high season). In Attachment N Page 3 of 29
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Required Frequency of
Performance Requirements
Characterizations & Audits
sector
Diversion Program
Divertible
On-site Field
Phase 1
Phase 2
Materials & MSW
Cart
Contamination
Contamination
Characterizations
Contamination
Cap by 2024
Cap by 2026
Audit
Recyclable
2x/year
4x/year
25%
15%
Materials
Co -collected Food
Scraps/Green
2x/year
4x/year
25%
15%
Waste
Residential
MSW
2x/year
4x/year
25%
15%
1. Characterization Protocols for Divertible Materials and MSW Note: As used herein "Residential" includes all Residences that are provided Collection service of wheeled Carts by Contractor including, but not limited to, single family homes, Gated Developments, HOA's and Mobile Home Parks. "Stream" refers to the type of material: Recyclable Materials, Co -collected Food Scraps/Green Waste, and MSW. 1 a. Characterization Protocol for Recyclable Materials Being Delivered to Clean MRF
The following protocol shall be used to conduct characterizations of Recyclable Materials being delivered to the Clean MRF prior to processing.
Timing: Characterization studies shall be conducted two (2) times each year of the Term (including any extensions described in Article 6) for the Recyclable Materials stream so that each study selects a sample during the `high season' (June through September) and during the low season (October through May) as shown in the table provided as Exhibit N-1 to this Attachment (Note: The quarters refer to calendar year quarters as noted in the footnote in Exhibit N.1). The first characterization shall take place beginning Quarter 1, 2022. The timing for when the characterization studies are conducted shall be staggered so that after two (2) years, one (1) characterization shall have taken place during each calendar quarter, with two (2) characterizations completed during the high season and two (2) during the low season. For example, for contract year 1 (1/15/2022 —12/31/2022), the Contractor shall conduct one (1) characterization study of Recyclable Materials in Calendar Quarter 1, 2022 (low season) and Calendar Quarter 3, 2022 (high season). In Attachment N Page 3 of 29
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Attachment N
Characterizations of Divertible Materials and MSW and Periodic Onsite Field Cart Contamination Audit Protocols
Contract Year 2 (1/1/2023 — 12/31/2023), the contractor shall conduct one (1) characterization study of Recyclable Materials in June of Calendar Quarter 2, 2023 (high season) and Calendar Quarter 4, 2023 (low -season). See Exhibit N.1. for the schedule of characterization studies that shall be conducted during the Term of the Agreement.
Methodology:
Sampling protocol: For each characterization study, loads shall be sampled only from Recyclable Materials Collected from Residences.
Each characterization shall be done by hand (i.e. a manual sort not a mechanized sort) and total load weights shall be established for each load sampled. One sample shall represent the entirety of the contents of a Residential Recyclable Materials Cart. Samples shall be collected on the regular service day of the route being sampled. Contractor shall sample only full Residential Carts. A `full' cart is defined as seventy-five percent (75%) or more Cart capacity utilization. Samples shall be collected using one of the following options:
1) a box truck;
2) a flat-bed vehicle, or;
3) a dedicated side -loader during the service day for that geographic area that only collects samples for the purposes of conducting the characterization study.
NOTE: If Contractor is using a box truck or flat-bed vehicle to collect samples and will be removing the Cart from the premises (options 1 and 2 above), Contractor shall immediately replace each full Residential Cart that is Collected, with a clean Cart of the identical size, type and color. The clean replacement cart shall include a 'hang -tag' notifying the resident that their Cart was taken by Contractor and replaced with an identical Cart on the day of the characterization study and the reason why the Contractor is conducting the characterization. The notice(s) shall include Contractor's telephone number, web site address, assurances that any of the Residents' private information that may be found in the Cart will be kept confidential by Contractor, and at least one (1) social media method for Residents to obtain additional information, ask questions and receive answers from Contractor concerning the characterization. The protocols described herein for Cart removal and 'hang tags' are not required if the Contractor chooses to collect samples using methodology 3 above (a dedicated side -loader to collect samples).
The following number of samples (i.e. full Carts) per sampled route shall be Collected:
1. For routes that service less than 1,500 generators per week the study shall include a minimum of 25 samples.
2. For routes that service 1,500-3,999 generators per week the study shall include a minimum of 30 samples.
3. For routes that service 4,000- 6,999 generators per week the study shall include a minimum of 35 samples.
Attachment N
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Attachment N
Characterizations of Divertible Materials and MSW and Periodic Onsite Field Cart Contamination Audit Protocols
4. For routes that service 7,000 or more generators per week the study shall include a minimum of 40 samples.
The characterization study shall include samples taken from different areas in the City along the sampled route that are representative of different neighborhoods in the City.
Samples (i.e. "full" Carts as defined herein) may be gathered on a single day or on multiple service days over the course of the week, provided the above-described total minimum number of samples are collected from the route. A minimum of thirty (30) calendar days in advance of each characterization, Contractor shall provide City with a list and/or map of Residences (with addresses) identified for sampling during the upcoming characterization in order for City to review and make sure the samples will be taken from different areas of the City as described herein.
Sorting protocol: All of the material collected for sampling must be transported to a sorting area at a permitted solid waste facility where the presence of prohibited Contaminants for the Recyclable Materials stream is measured to determine the ratio of prohibited Contaminants present by weight. To determine the ratio of prohibited Contaminants after the field sample selection process is complete, the Contractor shall use the following protocol:
1. Take one sample of at least 200 pounds from the material collected from the Recyclable Materials stream for sampling (e.g. a 200 pound sample taken from the contents of all of the blue -lidded Carts collected for sampling).
2. The 200 -pound sample shall be randomly selected from different areas of the pile of Recyclable Materials. Materials shall be collected for sorting from the sample pile using a grid method and shall be hand collected. The grid method assigns an imaginary XY axis over the load after it is dumped on the tipping floor. Four random number pairings between 0-20 (for the long dimension of the load i.e. length) and 0-10 (for the shorter dimension of the load i.e. width) shall be generated to identify the location of the samples on the load. Each sample shall weigh at least 50 lbs. and shall be collected by hand in a 60- to 90 -gallon Cart.
3. For the 200 -pound sample, remove any prohibited Contaminants and sort Recyclable Materials by commodity type. Place Contaminants and sorted Recyclable commodities into separate Carts. Determine the weight of prohibited Contaminants and sorted Recyclable commodities by weighing each Cart and deducting the Cart tare weight. Note the gross weight, and net weight for Contaminants manually using the worksheet provided in Exhibit N.2.
4. Calculate the composition percentage of both Contaminants and Recyclable commodities in the sample. To determine the ratio of prohibited Contaminants in the sample, divide the total net weight of prohibited Contaminants by the total weight of the sample. To determine the ratio of Recyclable commodities in the sample, divide the total net weight of each Recyclable commodity by the total weight of the sample.
Attachment N
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Attachment N
Characterizations of Divertible Materials and MSW and Periodic Onsite Field Cart Contamination Audit Protocols
Analysis: The results of the samples shall then be used to produce a characterization that shall be used to establish the percentage Diversion and the amount of Contaminants for Newport Beach's Recyclable Materials routes. This characterization process shall be repeated twice annually to establish the next six -months' tonnage allocation (e.g. percent Diverted and percent that is Contaminants) to account for seasonal fluctuations. Said tonnage allocation shall be used in and included in the tonnage reports described in Attachment K.
The Recyclable commodities sampled and sorted during this process shall be paper, cardboard, newsprint, mixed paper, plastics (numbers 1 & 2), mixed plastics, non-ferrous metals, tin, aluminum, and other Recyclable Materials as directed by the City. Exhibit N.2 includes the characterization data collection sheet that shall be used during the characterization.
Calculating Density on Service: For purposes of determining the average densities of components Collected, and as a metric to evaluate Collection efficiencies and Cart capacity utilization, the Contractor shall perform the following calculation:
The net tonnage of the Recyclable Materials Collected in the sampled trucks (or sampled Carts) shall be calculated by dividing the total tons Collected of Recyclable Materials by the total on -service cubic yards Collected to calculate a density for the Recyclable Materials stream.
For example, if one load sampled weighed a total of 5 Tons and was Collected from 100 cubic yards on service, the average "material on service density" for this stream would be 100 lbs. per cubic yard. Cubic yards on service shall be calculated using actual route data (i.e. if one route sampled collected 100 64 -gal carts, the yards on service for that route would be 6,400 gallons, or 31.7 cubic yards).
Reporting: Contractor shall submit a written report to the City semi-annually beginning with Contractor's first Quarterly report in 2022. The report will summarize the results of the characterization study, including a summary of the characterization results; the measured weights for each commodity; the percent of each commodity found in each sample and in aggregate; a description and photographs of the types of Contaminant materials found during the characterization study; the average density on -service for the materials sampled (i.e. load weights divided by yards collected); locations where the samples were collected; and any other data requested by the City. Upon approval by the City, the results of the characterization study shall be applied to the Tons delivered to the Clean MRF and Tons of Contaminants delivered to the Landfill from the Clean MRF in subsequent monthly reports and shall be in effect until the results of the next characterization study are approved by the City.
Attachment N Page 6 of 29
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Attachment N
Characterizations of Divertible Materials and MSW and Periodic Onsite Field Cart Contamination Audit Protocols
1 b. Characterization Protocol for Co -collected Food Scraps/Green Waste Being Delivered to Processing Facilities
The following protocol shall be used to conduct characterizations of the Residential Co - collected Food Scraps/Green Waste. Due to the distance to the City -approved Compost Facility in Attachment P, characterizations shall be conducted at the transfer station or at another permitted solid waste facility in Orange County selected by Contractor and approved by City.
Timing: Characterization studies shall be conducted two (2) times each contract year for the Food Scrap/Green Waste stream so that each study selects a sample during the `high season' (June through September) and during the low season (October through May) as shown in the table provided as Exhibit N-1 to this Attachment N. (Note: The quarters refer to calendar year quarters as noted in the footnote in Exhibit N.1). The first characterization shall take place beginning calendar Quarter 1, 2022. The timing for when the characterization studies are conducted shall be staggered so that after two (2) years, one (1) characterization shall have taken place during each calendar quarter, with two (2) characterizations completed during the high season and two (2) during the low season.
For example, for Contract Year 1 2022 (1/15/2022 — 12/31/2022), the Contractor shall conduct one characterization study of the Co -Collected Food Scraps/Green Waste stream in Calendar Quarter 1, 2022 (low season) and Calendar Quarter 3, 2022 (high season). In Contract Year 2 (1/1/2023 — 12/31/2023), the Contractor shall conduct one characterization study of the Co -Collected Food Scraps/Green Waste stream in June of Calendar Quarter 2, 2023 (high season) and Calendar Quarter 4, 2023 (low -season). See Exhibit N.1. for the schedule of characterization studies that shall be conducted over the Term of the Agreement.
Methodology:
Sampling protocol: For each characterization study, loads shall be sampled only for Co - Collected Food Scraps/Green Waste Collected from Residences.
Each characterization shall be done by hand (i.e. a manual sort not a mechanized sort) and total load weights shall be established for each load sampled. One sample shall represent the entirety of the contents of a Residential Co -Collected Food Scrap/Green Waste. Samples shall be collected on the regular service day of the route being sampled.
Contractor shall sample only full Carts. For Food Scraps/Green Waste, a `full' cart is defined as fifty percent (50%) or more Cart capacity utilization. Sampling shall be collected using one of the following options:
1) a box truck;
2) a flat-bed vehicle, or;
3) a dedicated side -loader during the service day for that geographic area that only collects samples for the purposes of conducting the characterization study.
Attachment N
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Attachment N
Characterizations of Divertible Materials and MSW and Periodic Onsite Field Cart Contamination Audit Protocols
NOTE: If Contractor is using a box truck or flat-bed vehicle to collect samples and will be removing the Cart from the premises (options 1 and 2 above), Contractor shall immediately replace each full Residential Cart that is Collected, with a clean Cart of the identical size, type and color. The clean replacement cart will include a `hang -tag' notifying the resident that their Cart was taken by Contractor and replaced with an identical Cart on the day(s) the characterization study and the reason why the Contractor is conducting the waste characterization. The notice(s) shall include Contractor's telephone number, web site address, assurances that any of the Residents' private information that may be found in the Cart will be kept confidential by Contractor, and at least one (1) social media method for Residents to obtain additional information, ask questions and receive answers from Contractor concerning the characterization. The protocols described herein for Cart removal and `hang tags' are not required if the Contractor chooses to collect samples using methodology 3 above (a dedicated side -loader to collect samples).
The following number of samples (i.e. full Carts) per sampled route shall be Collected:
1. For routes that service less than 1,500 generators per week the study shall include a minimum of 25 samples.
2. For routes that service 1,500-3,999 generators per week the study shall include a minimum of 30 samples.
3. For routes that service 4,000- 6,999 generators per week the study shall include a minimum of 35 samples.
4. For routes that service 7,000 or more generators per week the study shall include a minimum of 40 samples.
The characterization study shall include samples taken from different areas in the City along the sampled route that are representative of Co -Collected Food Scraps/Green Waste in different neighborhoods throughout the City. Samples (i.e. full Carts) may be gathered on a single day or on multiple service days over the course of the week provided the above-described total samples are collected from the route. A minimum of thirty (30) calendar days in advance of each characterization, Contractor shall provide City with a list and/or map of Residences (with addresses) identified for sampling during the upcoming characterization in order for City to review and make sure the samples will be taken from different areas of the City as described herein.
Sorting protocol: All of the material collected on -route for sampling must be transported to a sorting area at a permitted solid waste facility where the presence of prohibited Contaminants in the Co -collected Food Scraps/Green Waste are measured to determine the ratio of prohibited Contaminants present in each Cart by type and weight. To determine the ratio of prohibited Contaminants the Contractor shall use the following protocol:
1. Take one sample of at least 200 pounds from the material collected from the Residential Co -collected Food Scraps/Green Waste stream for sampling (e.g. a Attachment N
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Attachment N
Characterizations of Divertible Materials and MSW and Periodic Onsite Field Cart Contamination Audit Protocols
200 -pound sample taken from the contents of all of the Food Scraps/Green Waste Carts collected for sampling).
2. The 200 -pound sample shall be randomly selected from different areas of the pile of Residential Food Scraps/Green Waste. Materials shall be collected for sorting from the sample pile using a grid method and shall be hand collected. The grid method assigns an imaginary XY axis over the load after it is dumped on the tipping floor. Four random number pairings between 0-20 (for the long dimension of the load i.e. length) and 0-10 (for the shorter dimension of the load i.e. width) shall be generated to identify the location of the samples on the load. Each sample shall weigh at least 50 lbs. and shall be collected by hand in a 60 -to 90 -gallon Cart.
3. For the 200 -pound sample, remove any prohibited Contaminants and sort materials by the commodity types indicated in the `sorting Categories' section below (Processing Facility Categories 1 and 2). Place Contaminants and sorted materials into separate Carts. Determine the weight of prohibited Contaminants and of the sorted materials by weighing each Cart and deducting the Cart tare weight. Record the gross weight and net weight for Contaminants and Divertible Food Scraps/Green Waste manually using the worksheet provided in Exhibit N.2.
4. Calculate the composition percentage of both Contaminants and Divertible Food Scraps/Green Waste in the sample. To determine the ratio of prohibited Contaminants in the sample, divide the total net weight of prohibited Contaminants by the total weight of the sample. To determine the ratio of Divertible Food Scraps/Green Waste in the sample, divide the total net weight of the Food Scraps/Green Waste by the total weight of the sample.
Sorting Categories: Materials shall be sorted into the categories below and shall be weighed:
Processing Facility Category 1 — Materials Accepted at the City -designated Composting Facility in Attachment P
Processing Facility Category 2 - Contamination: Materials that are considered Contamination and that are not accepted by the City -designated Composting Facility in Attachment P.
Category 1 acceptable materials include: Food Scraps, Food Soiled Paper, Green Waste, prunings, leaves, other yard trimmings, grass clippings and all other acceptable materials listed under the category "Co -Collected Food Scraps/Green Waste" in Attachment B, Section 5.
Category 2 non -acceptable material types include: MSW, Recyclable Materials, glass, plastics, and all other material types listed as "Contamination" for Food Scraps/Green Waste in Attachment B, Section 5.
Exhibit N-3 includes the characterization data collection sheet that shall be used during these characterization studies.
Attachment N
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Attachment N
Characterizations of Divertible Materials and MSW and Periodic Onsite Field Cart Contamination Audit Protocols
The Category 2 non -accepted materials shall also be separated manually and weighed by material type (e.g. plastics, glass, metals, non-compostable packaging, etc.). The type and weight of each non-Divertible material type shall be recorded and also carefully photo -documented and included in the Contractor's report to the City.
Analysis: The results of the samples shall then be used to produce a characterization that shall be used to establish the percentage Diversion and the amount of Contaminants for Newport Beach's Co -Collected Food Scrap/Green Waste routes. This characterization process shall be repeated twice annually to establish the next six -months' tonnage allocation (e.g. percent Diverted and percent that is Contaminants) to account for seasonal fluctuations. Said tonnage allocation shall be used in and included in the tonnage reports described in Attachment K. In the case of a significant rain event, characterizations of Co -Collected Food Scraps/Green Waste shall be delayed until dry conditions have returned for a one (1) week period and Contractor shall immediately notify the City of the delay, the reason for the delay and of the new characterization date(s).
Calculating Density on Service: For purposes of determining the average density of Food Scraps/Green Waste Collected, and as a metric to evaluate Collection efficiencies and Cart capacity utilization, the Contractor shall perform the following calculation:
The net tonnage of the Food Scraps/Green Waste Collected in the sampled trucks (or sampled Carts) shall be calculated by dividing by the total tons Collected of Food Scraps/Green Waste by the total on -service cubic yards Collected to calculate a density for this stream. The results shall be recorded and reported in the audit.
For example, if one (1) load sampled weighed a total of 5 Tons and was Collected from 100 cubic yards on service, the average "material on service density" for this stream would be 100 lbs. per cubic yard. Cubic yards on service shall be calculated using actual route data (i.e. if one route sampled collected 100 64 -gal Carts, the yards on service for that route would be 6400 gallons, of 31.7 cubic yards).
Reporting: Contractor shall submit a written report to the City semi-annually beginning with Contractor's first Quarterly report in 2022. The report will summarize the results of the characterization study, including a summary of characterization results; the measured weights for each commodity or category; the percent of each commodity/category found in each sample and in aggregate; a description and photographs of the types of Contaminants materials found during the characterization study; the average density on - service for the materials sampled (i.e. load weights divided by yards serviced); locations where the samples were collected; and any other data requested by the City. Upon approval by the City, the results of the characterization study shall be applied to the Tons delivered to the Food Scraps/Green Waste Processing Facility and Tons of Contaminants delivered to the Landfill from the Food Scrap/Green Waste Processing Facility in Attachment N Page 10 of 29
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subsequent monthly reports and shall be in effect until the results of the next characterization study are approved by the City.
1c. Characterization Protocol for MSW Being Delivered to Disposal Site The following protocol will be used to conduct characterization studies at the City - designated Disposal Site for MSW.
Timing: Characterization studies shall be conducted two (2) times each Contract year for the MSW stream so that each study selects a sample during the `high season' (June through September) and during the low season (October through May) as shown in the table provided as Exhibit N-1 to this Attachment. (Note: The quarters refer to calendar year quarters as noted in the footnote in Exhibit N.1). The first characterization shall take place beginning early in calendar Quarter 1 2022 in order to obtain a baseline MSW characterization study prior to the full implementation of the Co -Collected Food Scraps/Green Waste Diversion program. The timing for when the characterization studies are conducted shall be staggered so that after two (2) years, one (1) characterization shall have taken place during each calendar quarter, with two (2) characterizations completed during the high season and two (2) during the low season. For example, for Contract Year 1 (1/15/2022 — 12/31/2022), the Contractor shall conduct one (1) characterization study of MSW in Calendar Quarter 1, 2022 (low season) and Calendar Quarter 3, 2022 (high season). In Contract Year 2 (1/1/2023-12/31/2023), the Contractor shall conduct one (1) characterization study of MSW in June of Calendar Quarter 2, 2023 (high season) and Calendar Quarter 4, 2023 (low -season). Please see Exhibit N.1. for the schedule of characterization studies that shall be conducted during the Term of the Agreement.
Methodology:
Sampling protocol: For each characterization study, loads shall be sampled only from the Residential MSW stream.
Each characterization shall be done by hand (i.e. a manual sort not a mechanized sort) and total load weights shall be established for each load sampled. One sample shall represent the entirety of the contents of a Residential MSW Cart. Samples shall be collected on the regular service day of the route being sampled. Contractor shall sample only full Carts. A `full' Cart is defined as seventy-five percent (75%) or more Cart capacity utilization. Sample shall be collected using one of the following options:
1) a box truck;
2) a flat-bed vehicle, or;
3) a dedicated side -loader during the service day for that geographic area that only collects samples for the purposes of conducting the characterization study.
Attachment N
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NOTE: If Contractor is using a box truck or flat-bed vehicle to collect samples and will be removing the Cart from the premises (options 1 and 2 above), Contractor shall immediately replace each full Residential Cart that is Collected, with a clean Cart of the identical size, type and color. The clean replacement cart will include a `hang -tag' notifying the resident that their Cart was taken by Contractor and replaced with an identical Cart on the day(s) the characterization study and the reason why the Contractor is conducting the MSW characterization. The notice(s) shall include Contractor's telephone number, web site address, assurances that any of the Residents' private information that may be found in the Cart will be kept confidential by Contractor, and at least one (1) social media method for Residents to obtain additional information, ask questions and receive answers from Contractor concerning the characterization. The protocols described herein for Cart removal and 'hang tags' are not required if the Contractor chooses to collect samples using methodology 3 above (a dedicated side -loader to collect samples).
The following number of samples (i.e. full Carts) per sampled route shall be Collected:
1. For routes that service less than 1,500 generators per week the study shall include a minimum of 25 samples.
2. For routes that service 1,500-3,999 generators per week the study shall include a minimum of 30 samples.
3. For routes that service 4,000- 6,999 generators per week the study shall include a minimum of 35 samples.
4. For routes that service 7,000 or more generators per week the study shall include a minimum of 40 samples.
The characterizations shall include samples taken from different areas in the City along the sampled route that are representative of the City's MSW stream. Samples (i.e. full Carts) may be gathered on a single day or on multiple service days over the course of the week provided the above-described total samples are collected from the route. A minimum of thirty (30) calendar days in advance of each characterization, Contractor shall provide City with a list and/or map of Residences (with addresses) identified for sampling during the upcoming characterization in order for City to review and make sure the samples will be taken from different areas of the City as described herein.
Sorting protocol: All MSW collected for sampling must be transported to a sorting area at a permitted solid waste facility where the presence of prohibited Contaminants in the MSW are measured to determine the ratio of prohibited Contaminants present by type and weight. To determine the ratio of prohibited Contaminants after the field sample selection process is complete, the Contractor shall use the following protocol:
1. Take one sample of at least 200 pounds from the material collected from the Residential MSW stream for sampling (e.g. a 200 -pound sample taken from the contents of all of the MSW Carts collected for sampling).
2. The 200 -pound sample shall be randomly selected from different areas of the pile of MSW. MSW shall be collected for sorting from the sample pile using a grid Attachment N
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method and shall be hand collected. The grid method assigns an imaginary XY axis over the load after it is dumped on the tipping floor. Four random number pairings between 0-20 (for the long dimension of the load i.e. length) and 0-10 (for the shorter dimension of the load i.e. width) shall be generated to identify the location of the samples on the load. Each sample shall weigh at least 50 lbs. and shall be collected by hand in a 60- to 90 -gallon Carts.
3. For the 200 -pound sample, remove any prohibited Contaminants and sort materials by the four categories indicated below (Categories 1, 2, 3, and 4). Place Contaminants and sorted materials into separate Carts. Determine the weight of each category type by weighing each Cart and deducting the Cart tare weight.
Note the gross weight and net weight for each category manually using the worksheet provided in Exhibit N.2.
4. Calculate the composition percentage of each category in the sample by dividing the total net weight of each category by the total weight of the sample.
Sorting Categories: Materials shall be sorted into the categories below and shall be weighed:
Category 1: Food Scrap or Green Waste materials accepted in the Co -collected Food Scrap/Green Waste program as listed in Attachment B, Section 5.
Category 2: Recyclable Materials accepted in the Recyclable Materials Collection program as listed in Attachment B, Section 5.
Category 3: MSW
Category 4: HHW, E -waste, U -waste, automobile parts and other materials that should not be placed in the MSW Cart
Analysis: The results of the samples shall then be used to produce a characterization that shall be used to assess the recoverability of materials in the MSW Cart. This characterization process shall be repeated twice annually to assess MSW recoverability over time.
Calculating Density on Service: For purposes of determining the average densities of MSW Collected, and as a metric to evaluate Collection efficiencies and Cart capacity utilization, the Contractor shall perform the following calculation:
The net tonnage of MSW Collected in the sampled trucks (or Carts) shall be calculated by dividing by the total tons Collected of MSW by the total on -service cubic yards Collected to calculate a density for the MSW stream and the results shall be recorded and reported in the audit.
For example, if one (1) load sampled weighed a total of 5 Tons and was Collected from 1000 cubic yards on service, the average "material on service density" for the MSW stream would be 100 lbs. per cubic yard. Cubic yards on service shall be calculated using actual route data (i.e. if one route sampled collected 100 64 -gal Attachment N
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carts, the yards on service for that route would be 6,400 gallons, or 31.7 cubic yards).
Exhibit N-4 includes the characterization data collection sheet that shall be used for the MSW characterization studies.
Reporting: Contractor shall submit a written report to the City semi-annually beginning with Contractor's first Quarterly report in 2022. The report will summarize the results of the characterization study, including a summary of the characterization results; the measured weights for each commodity or category; the percent of each commodity/category found in each sample and in aggregate; locations where the samples were collected; a description and photographs of the types of Contaminants found during the characterization study; the average on -service density for the materials sampled (i.e. load weights divided by yards serviced); and any other data requested by the City.
1.d. Requirements if Contamination exceeds 25%:
If the sampled weight of prohibited Contaminants exceeds twenty-five percent (25%) of the measured sample for any material type (MSW, Recyclable Materials and/or Food Scraps/Green Waste), the Contractor shall perform the following:
(A) Notify all Residents on the sampled Collection route(s) of the requirement to properly separate materials into the appropriate Carts. The Contractor may provide this information by placing a notice on the Residents' Cart(s), gate, or door, and/or by mail, e-mail, or electronic message to the Resident. All notifications distributed to Residents must be approved by the City prior to distribution. (B) During the quarter after the characterization where a Contamination rate of 25% or more was found for any stream (MSW, Recyclable Materials and/or Food Scraps/Green Waste), Contractor shall target the high -Contamination route(s) for each such stream to be audited in the regularly -scheduled, quarterly on-site field Cart Contamination audits described in Section 2 of this Attachment N.
2. Residential On-site Field Cart Contamination Audits
The following methodology shall be used to conduct on-site field Contamination audits of the following materials:
• Recyclable Materials
• Co -collected Food Scraps/Green Waste
• MSW
Timing: On-site field Contamination audits shall be conducted four (4) times each calendar year on a quarterly basis.
Attachment N Page 14 of 29
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Methodology:
Before the on-site field Contamination audits are conducted, the Contractor shall coordinate with the City to target specific Residential neighborhoods throughout the City.
Contractor shall target routes for audits that were found to have a 25% or higher Contamination rate based on characterizations conducted the previous quarter as described in Section 1 d of this Attachment N. Each quarterly on-site field Contamination audit shall target a minimum of three percent (3%) of the Residences served by the Contractor in the City (approximately 810 accounts per audit). The Contractor may conduct the audit over the course of several days or complete the audit in a single day, provided it allocates adequate staffing to complete the methodology herein in a diligent and workmanlike fashion. Per Section 18984.5(b) of the SB 1383 regulations, audits shall be conducted in a manner that results in Carts along all Contractor routes being audited annually. The audits shall be conducted on Carts placed at curbside or in the alley by the Resident for Collection by Contractor (e.g. MSW, Recyclable Materials, and Co -Collected Food Scraps/Green Waste) before the Carts are Collected on the regular service day, in order to observe full Carts. As of the Effective Date, Contractor's compensation in Attachment D-1 includes fifteen (15) minutes of Contractor personnel auditing time per Residence to gather the information described below. The specific methodology for conducting the audit of each Cart shall be as follows:
1. Upon arrival at a Residence, note Cart serial number(s) (if the carts have a serial number), the material -type for each Cart (MSW, Recyclable Materials, or Food Scraps/Green Waste), the size of the Cart, and number of carts set out for service.
2. Flip lid of each Cart and note fullness of each Cart. Using a tool, prod around to reposition materials in Cart to visually assess maximum amount of the contents of the Cart. Open bags if most of the contents in the Cart are bagged. Note and photograph any Contamination observed in any Cart audited. Note photo numbers on audit sheet and if materials are bagged. Estimate percentage, by volume, of specific Contamination materials observed (e.g. glass or plastics in Food Scraps/Green Waste Cart; leaves in Recyclable Materials Cart; aluminum cans in MSW Cart) and note them on audit sheet.
3. If Contaminants are observed, place a `hang tag' on the Contaminated Cart noting the unacceptable material that was found in the Cart and provide public education materials reminding the Customer of what materials are acceptable in which Carts (as further described below). If non -containerization is observed (i.e. overflowing MSW, Recyclable Materials, or Green Waste/Food Scraps, bags of materials on the ground, etc.), place a separate `hang tag' as described in Attachment B, Section 2.7, on the container(s).
4. Once per year, for twenty percent (20%) of the Food Scrap/Green Waste Carts audited, place the Cart on a scale and note total weight. Record standard tare weights based on Cart size and subtract the tare weight from the total Cart weight to obtain the net Cart weight. Record the net Cart weight. The weighing of Food Scrap/Green Waste carts shall take place during different quarters each year so Attachment N
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that after 4 years, the Contractor will have weighed Food Scrap/Green Waste Carts during each calendar quarter during the previous four years.
During the audits, the Contractor shall note all the following attributes on the data collection form in Exhibit N-5:
• Fullness of each of the Carts set out for Collection (percent full — by volume) • Percentage, by volume, of observed Contamination in each of the Carts set out for Collection (i.e., MSW or Food Scraps in Carts for Recyclable Materials; Recyclable Materials, Food Scraps, and/or Green Waste in MSW Cart; Recyclable Materials and MSW in a Co -collected Food Scraps/Green Waste Cart)
• Descriptions of specific Contaminants found in each Cart • Participation of Residents in Co -collection program (i.e., the presence of Co - Collected Green Waste/Food Scrap Cart set out for Collection) • Curbside/alley placement rates (i.e., the absence of a Recyclable Materials or Food Scraps/Green Waste Cart when an MSW Cart is present at the curb or in the alley)
• The presence of bagged materials in Recyclable Materials and/or Food Scraps/Green Waste Carts
• Total weight of each Cart for at least 20% of the Food Scrap/Green Waste Carts audited (weigh using portable scale) if the annual weighing requirement occurred during the quarterly audit that is being performed and reported If there is any observable Contamination in any Cart, the Contractor shall place a `hang tag' on the Cart notifying the Customer of the Contamination incident and how to correct it. The `hang tag' shall indicate 1) the type of Contaminant(s) observed by Contractor's staff during the audit and 2) the appropriate Cart in which the prohibited Contaminant(s) should be placed. The notification shall include information regarding the Resident's requirement to properly separate materials into the appropriate Carts. The City shall approve of the `hang tag' before it is placed into use. The Contamination items and quantities shall be noted and photographed. The photo number and Contamination item(s) shall be noted in the field data collection sheet.
Reporting: Contractor shall submit a written report to the City quarterly beginning with the first quarterly report in calendar year 2022 covering the January 15, 2022 — March 30, 2022 reporting period. The report shall summarize the results of the auditing program, the number of households audited, the number of non -participants for each Diversion program (Recyclable Materials and Food Scraps/Green Waste), Contamination incidents for each quarterly audit, the average fullness levels of each type of Residential Cart (MSW, Recyclable Materials and Food Scraps/Green Waste), the average weights of Food Scraps/Green Waste Carts, the average observed Contamination levels for MSW, Recyclable Materials and Food Scraps/Green Waste Carts, locations where on-site Contamination audits were conducted, addresses of Residents where prohibited Attachment N Page 16 of 29
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Contaminants were observed, addresses where Recyclable Materials and/or Food Scraps/Green Waste program non -participation was observed (i.e. Recyclable Materials or Food Scraps/Green Waste Carts were not rolled out to the curb or placed in the alley for Collection), descriptions of specific Contaminants found in each type of Cart (MSW, Recyclable Materials and Food Scraps/Green Waste Carts), photos supporting the findings. If the audit data shows that, during Phase 1 (January 15, 2022 — December 31, 2024 as described in Article 6), the observed Contamination levels, by volume, for any stream (MSW, Recyclable Materials, and/or Food Scraps/Green Waste) exceed 25%, CR&R shall submit an action plan to reduce Contamination as part of its report. If the audit data shows that, after January 1, 2025 and for the remainder of the Agreement Term, that the observed Contamination levels, by volume, for any stream exceed 15%, CR&R shall submit an action plan to reduce Contamination as part of its report. The Contamination Reduction Action Plans submitted by CR&R shall include a detailed plan to reduce Contamination for the neighborhoods where high levels of Contamination were observed during the audits. The plan may include presentations at neighborhood association meetings, door-to-door canvassing by Recycling Coordinators, the distribution of written materials to all households on the route where high levels of contamination were encountered, targeted social media posts, etc.
Attachment N Page 17 of 29
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3. Assessment of Phase 1 and Phase 2 Performance Metrics In order to determine whether Contractor has earned the Phase 1 and/or Phase 2 Extension Incentive(s) described in Article 6 of the Agreement, the City will utilize the assessments described below. A summary of the timing of Phase 1 and 2 are included below.
Phase 1 timing; As described in Article 6 of the Agreement, the Phase 1 implementation period will be between January 15, 2022 and December 31, 2024. The Phase 1 evaluation period will be between December 1, 2024 and April 30, 2025. The Contractor shall be notified of the Contamination level achieved during Phase 1, and whether or not Contractor earned the 1 -year extension, on or before May 1, 2025.
Phase 2 timing: As described in Section 6 of the Agreement, the Phase 2 period will be from January 1, 2025 through December 31, 2026. The Phase 2 evaluation period will be between December 1, 2026 and April 30, 2027. The Contractor shall be notified of the Contamination level achieved during Phase 2, and whether or not Contractor earned the 1 -year extension, on or before May 1, 2027.
3.a. Assessment of Phase 1 Performance Metrics
1. Achievement of Phase 1 Contamination Caps for Residential Streams Attachment N
a. During calendar year 2024, using the protocols included in Subparts 1 a, 1 b and 1c of this Attachment N, the Contractor will conduct regular, recurring weight -based characterization studies of the following materials streams to determine the level of Contamination and whether Contractor has met the Contamination caps required for the Phase 1 Extension Incentive. The characterizations shall be conducted by Contractor during calendar year 2024, as normally scheduled per this Attachment N. The Phase 1 Contamination caps (maximum allowed Contamination by weight) are included below for each stream:
1. Recyclable Materials Phase 1 Contamination Maximum: 25%
2. MSW Phase 1 Contamination Maximum: 25%. (Note: The
25% Contamination Maximum includes the combined weight
of Recyclable Materials, Green Waste and Food Scraps found in MSW)
3. Co -Collected Food Scraps/Green Waste Phase 1
Contamination Maximum: 25%
b. The City, or its representative, will be present for these characterization studies to verify that the Contractor has properly conducted the characterization studies, and to observe the calculations, weighing of materials and the results of the characterization. Contractor shall provide
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no less than 30 -days advance notice to the City of the dates for each characterization. Contractor shall submit the results of the 2024 characterizations on a quarterly basis as described in Section 1 of this Attachment N. On or before December 1, 2024, Contractor shall submit the aggregated results of the six characterizations conducted on the three Residential streams during 2024 showing the total annual composite Contamination levels for each stream for 2024. Refer to Exhibit N.6 for the protocol for calculating the composite Contamination levels. City will notify Contractor of its decision about which Contamination caps have been achieved and which, if any, have not been met, on or before December 15, 2024.
c. If Contractor has failed to meet any of the Contamination caps required to earn the Phase 1 Extension Incentive, the following process shall be followed. For any stream (MSW, Recyclable Materials and/or Co -Collected Food Scraps/Green Waste) where the characterization study showed that the Contamination cap was exceeded, the Contractor may, at Contractor's sole expense, conduct one (1) additional characterization study for each of the failed streams on or after January 15th, 2025. The City or its representative shall be notified by Contractor no less than 30 calendar days in advance of the date(s) when each additional characterization is scheduled so City representatives or staff can be present to verify that the Contractor has properly conducted the additional characterization study(ies), and to observe the calculations, weighing of materials and the results of the characterization. The results of the additional characterization shall be averaged with the 2 regularly -scheduled characterizations of the same material stream to calculate a composite Contamination percentage that includes the results of all three characterizations for the specific stream (i.e. MSW, Recyclable Materials, or Co -collected Food Scraps/Green Waste). Refer to Exhibit N.6 for the protocol for calculating the composite Contamination levels. All subsequent, additional characterization studies for those streams(s) exceeding the Contamination cap(s) must be completed on or before March 30, 2025 and the results submitted to the City on or before April 15, 2025. Example: The Contractor completed its characterization of the Recyclable Materials (or Co -collected Food Scraps/Green Waste or MSW) for Calendar Year 2024 and found a Contamination rate in excess of 25% for one or more of the streams. The Contractor could conduct one (1) additional characterization study of each of the stream(s) that exceeded the 25% contamination cap on or before March 30, 2025 and submit the results to the City on or before April 15, 2025.
3.b. Assessment of Phase 2 Performance Metrics
1. Achievement of Phase 2 Contamination Caps for Residential Streams Attachment N
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Attachment N
a. During calendar year 2026, using the protocols included in Subparts 1 a, 1 b and 1c of this Attachment N, the Contractor shall conduct regular recurring weight -based characterization studies of the following material streams to determine the level of Contamination and whether Contractor has met the Contamination caps required for the Phase 2 Extension Incentive. The characterizations shall be conducted by Contractor during calendar year 2026, as normally scheduled per this Attachment N. The Phase 2 Contamination caps (maximum allowed Contamination by weight) are included below for each stream:
1. Recyclable Materials Phase 2 Contamination Maximum: 15%
2. MSW Phase 2 Contamination Maximum: 15% (Note: The
15% Contamination Maximum includes the combined weight
of Recyclable Materials, Green Waste and Food Scraps found in MSW)
3. Co -Collected Food Scraps/Green Waste Phase 2
Contamination Maximum: 15%
b. The City, or its representative, will be present for these characterization studies to verify that the Contractor has properly conducted the characterization study(ies), and to observe the calculations, weighing of materials and the results of the characterization. Contractor shall provide no less than 30 calendar days advance notice to the City of when each characterization is scheduled. Contractor shall submit the results of the 2026 characterizations on a quarterly basis as described in Section 1 of this Attachment N. On or before December 1, 2026, Contractor shall submit the aggregated results of the six characterizations conducted on the three Residential streams during 2026 showing the total composite contamination levels for each stream. Refer to Exhibit N.6 for the protocol for calculating the composite contamination levels. City will notify Contractor of its decision about which Contamination caps have been achieved and which, if any, have not been met, on or before December 15, 2026.
c. If Contractor has failed to meet the any of the Contamination caps required to earn the Phase 2 Extension Incentive the following process shall be followed. For any stream where the characterization study showed that the Contamination cap was exceeded, the Contractor may, at Contractor's sole expense, conduct one (1) additional characterization study for each of the failed streams. The City or its representative shall be notified by Contractor no less than 30 calendar days in advance of the date(s) when each additional characterization is scheduled so City representatives or staff can be present to verify that the Contractor has properly conducted the additional characterization study(ies), and to observe the calculations, weighing of materials and the results of the characterization. The results of the additional characterization shall be averaged with the results of the 2 regularly -scheduled characterizations for the same stream, to calculate a composite Contamination percentage that includes the results of all three
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Attachment N
characterizations for the specific stream (i.e. MSW, Recyclable Materials, or Co -collected Food Scraps/Green Waste). Refer to Exhibit N.6 for the protocol for calculating the composite Contamination levels when using a supplemental characterization study. All subsequent characterization studies for those stream(s) exceeding the Contamination cap(s) must be completed on or before March 30, 2027 and the results submitted to City on or before April 15, 2027. Example: The Contractor completed its characterization of the Recyclable Materials (or Co -collected Food Scraps/Green Waste or MSW) for Calendar Year 2026 and found a Contamination rate in excess of 15% for one or more of the streams. The Contractor could conduct one (1) additional characterization study of each of the stream(s) that exceeded the 15% contamination cap on or before March 30, 2027 and submit the results on or before April 15, 2027.
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Exhibit N-1: Schedule of Characterization Studies to be Conducted During the Term of the Agreement
Contract
YR 1
YR 2
YR 3
YR 4
YR 5
YR 6
YR 7
YR 8
YR 9**
YR 10**
Year*4
1/15/22—
1/1/23—
1/1/24—
1/1/25—
1/1/26—
1/1/27—
1/1/28—
1/1/29—
1/1/30—
/1/31-
1/1/31-
12/31/22
12/31/22
12/31/23
12/31/24
12/31/25
12/31/26
12/31/27
12/31/28
12/31/29
12/31/30
12/31/31
Q1 2022
Q2 2023
Q1 2024
Q2 2025
Q1 2026
Q2 2027
Q1 2028
Q2 2029
Q1 2030
Q2 2031
SS
(LO), Q3
(HI), Q4
(LO), Q3
(HI), Q4
(LO), Q3
(HI), Q4
(LO), Q3
(HI), Q4
(LO), Q3
(HI), Q4
RECYC
2022 (HI)
2023
2024 (HI)
2025
2026 (HI)
2027
2028 (HI)
2029
2030 (HI)
2031
�
LO
LO
LO
LO
LO
U)
Q1 2022
Q2 2023
Q1 2024
Q2 2025
Q1 2026
Q2 2027
Q1 2028
Q2 2029
Q1 2030
Q2 2031
m
GW/FS
(LO), Q3
(HI), Q4
(LO), Q3
(HI), Q4
(LO), Q3
(HI), Q4
(LO), Q3
(HI), Q4
(LO), Q3
(HI), Q4
Z
2022 (HI)
2023
2024 (HI)
2025
2026 (HI)
2027
2028 (HI)
2029
2030 (HI)
2031
L2
L2
L2
L2
L3
r
Q1 2022
Q2 2023
Q1 2024
Q2 2025
Q1 2026
Q2 2027
Q1 2028
Q2 2029
Q1 2030
Q2 2031
MSW
(LO), Q3
(2I), Q34
(LO), Q3
(2I0264
Q3
(2IO2Q74
(LO), Q3
(2I0294
(LO), Q3
(H ),3Q4
2022 (HI)
2024 (HI)
(LO),
2026 (HI)
2028 (HI)
2030 (HI)
LO
LO
LO
LO
LO
PHASE 1
PHASE 2
Key
SS = Source -Separated Recyclable Materials
GW/FS = Co -collected Green Waste and Food Scraps
MSW = Municipal Solid Waste
*The quarters referred to in this table follow the calendar year as follows:
Q1 = Jan 1 — March 31 (Except for 2022, use Jan 15 — March 31) Q2 = April 1 — June 30
Q3 = July 1 — September 30
Q4 = October 1 — December 31
**If Contractor earns either or both extensions of the Term described in Article 6 of the Agreement, the schedule for years 9 and/or 10 in the table above shall apply.
Attachment N
20-437
Attachment N
Characterizations of Divertible Materials and MSW and Periodic Onsite Field Cart Contamination Audit Protocols
Exhibit N-2: Characterization Form for Recyclable Materials Being Delivered to Clean MRF
City
Day
Date
Time
Route
Origin
Truck Number
Total Sample Weight
Total Load Weight
Quadrate Locations X-axis
Y-axis Quadrate Number
A
Total Weight
B C D
Container Weight Net Wei ht(A-B=C) Percert
Flattened Corrugated Cardboard
Unflattened Corrugated Cardboard
Flat. Coated Corrugated Cardboard
Unflat. Coated Corrugated Cardboard
Newspaper
Office Paper
Colored Ledger Paper
Computer Paper
Mixed Paper
Clear Glass Bottles & Containers
Colored Glass Bottles & Containers
Ferrous Metals
Non Ferrous Metals
HDPE Plastic
PET Plastic
Film Plastic
Rigid Plastic
Wood
Tires
Household Hazardous
Total Recyclables
Textl le s
Remainder/Composite Plastic
Food
Yard/Landscape
RemainderIComposite Organic
Inerts
Special Waste
Remainder/Composite Metal
Flat Glass
RemaincleriComposite Glass
RemaindedComposite Paper
Mixed Residue
T ota I Conta min a nts
Total Sample Weight
Sample Diversion Percentage
Notes:
Attachment N
20-438
Attachment N
Characterizations of Divertible Materials and MSW and Periodic Onsite Field Cart Contamination Audit Protocols
Exhibit N-3: Characterization Form for Co -Collected Food Scraps/Green Waste Being Delivered to Processing Facility
City
Day
Da to
Time
Route
Origin
Truck Number
Total Sample Weight
Total Load Weight
A
B
C
D
Total Weight
Container Weight
Net Weight (A -8=C)
Percentage
Category 1: Food Scraps
Category 1: Yard
Trimmings
Category 1: Food Soiled
Paper
Total Category 1
Organics
Category 2: MSW Items
Category 2: Recyclable
Items
_
Total Category 2
Contamination
Total (Cat 1 + Cat 2)
Load Diversion
Percentage
_
Nates / Notas:
Attachment N
20-439
Attachment N
Characterizations of Divertible Materials and MSW and Periodic Onsite Field Cart Contamination Audit Protocols
Exhibit N-4: Characterization Form for MSW
City
Day
Date
Time
Route
Origin
Truck Number
Total Sample Weight
Total Load Weight
A
B
C
D
Total Weight
Container Weight
Net Weight (A -B=C)
Percentage
Category 1: Food Scraps
Category 1: Yard
Trimmings
Category 1: Food Soiled
Paper
Total Category 1
Organics
Category 2: Recyclable
Fibers
Category 2: Recyclable
Plastics
Category 2: Recyclable
Metals
Category 2: Recyclable
Glass
Total Category 2
Recyclables
Total Category 3 MSW
Total (Cat 1 + Cat 2 +
Cat 3)
Load Recoverability
Percentage
Notes:
Attachment N
V,
6M
Account
#
Address
g Bagged Set Out % %Divertale Green % Note type of Han Ba ed Weight Date Bin # Bin Type for Fullness Divertable Waste/ Contamination contaminants if tag Materials (GW/FW Photo Number(s) Notes
Service? Recyclables Food Scraps observed issued? Present? Carts) N
O
N
0)
CU
0 -
Pi
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s
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20-441
Attachment N
Characterizations of Divertible Materials and MSW and Periodic Onsite Field Cart Contamination Audit Protocols
Exhibit N6 — Protocol to Calculate Composite Characterization Contamination Rate
Table N6.1: Form to be used to calculate composite characterization contamination rate:
A B C D E
Scenario 1: Example Phase 1 Contamination Cap Achieved
Table N6.2: Sample calculations for if Phase 1 contamination cap is achieved
A B C D E
Total Composite
Total Composite
Annual
Supplemental
Characterization #1
Characterization #2
Annual
Characterization
Characterization
Characterization
with Supplemental
Characterization
Divertable Materials (Ibs).
154
210
364
Conta m i na ntsf I bs.1
45 65
110
Total Sample Weight (lbs.)
199
275
474
Contamination Percentage
23%
24%
23%
Scenario 1: Example Phase 1 Contamination Cap Achieved
Table N6.2: Sample calculations for if Phase 1 contamination cap is achieved
A B C D E
* Note: The numbers in the sample calculations in this Attachment N are for example only and do not reflect the actual values of the sampling results.
Step 1. Enter weight (in lbs.) of Divertible materials from characterization #1 into Cell Al and characterization #2 into Cell B1.
Step 2. Enter weight (in lbs.) of Contaminants from characterization #1 into Cell A2 and characterization #2 into Cell B2.
Step 3. Sum total sample weight (in lbs.) of Divertible Materials (Al) and Contaminants (A2) from characterization #1 into Cell A3 and sum Divertible Materials (131) and Contaminants (132) from characterization #2 in Cell B3.
Step 4. Calculate Contamination rate in row 4 for each characterization by dividing the Contamination weight (A2 characterization #1 and B2 for characterization #2) by the total sample weight (A3 for characterization #1 and B3 for characterization #2). Enter Attachment N Page 27 of 29
20-442
Total Composite
Total Composite
Annual
Supplemental
Characterization #1
Characterization #2
Annual
Characterization
Characterization
Characterization
with Supplemental
Characterization
Divertable Materials (Ibs).
154
210
364
Contaminantsflbs.l
45 65
110
Total Sample Weight (lbs.)
199
275
474
23%
24%
23%
Contamination Percentage
* Note: The numbers in the sample calculations in this Attachment N are for example only and do not reflect the actual values of the sampling results.
Step 1. Enter weight (in lbs.) of Divertible materials from characterization #1 into Cell Al and characterization #2 into Cell B1.
Step 2. Enter weight (in lbs.) of Contaminants from characterization #1 into Cell A2 and characterization #2 into Cell B2.
Step 3. Sum total sample weight (in lbs.) of Divertible Materials (Al) and Contaminants (A2) from characterization #1 into Cell A3 and sum Divertible Materials (131) and Contaminants (132) from characterization #2 in Cell B3.
Step 4. Calculate Contamination rate in row 4 for each characterization by dividing the Contamination weight (A2 characterization #1 and B2 for characterization #2) by the total sample weight (A3 for characterization #1 and B3 for characterization #2). Enter Attachment N Page 27 of 29
20-442
Attachment N
Characterizations of Divertible Materials and MSW and Periodic Onsite Field Cart Contamination Audit Protocols
calculated contamination rate into cell A4 for characterization #1 and B4 for characterization #2.
Step 5. Sum weight of Divertible Materials, Contaminants, and Total Sample Weight from characterizations #1 and #2 in column C. Add cell Al plus cell B1 to calculate total weight of Divertible Materials from both characterizations and enter sum into cell C1.
Add cell A2 plus cell B2 to calculate total weight of Contaminants from both characterizations and enter sum into cell C2. Add cell A3 plus cell B3 to calculate Total Sample Weight from both characterizations and enter sum into cell C3.
Step 6. Calculate Total Composite Annual Characterization Percentage in cell C4.
Dividing the combined Contamination weight for characterization #1 and #2 in cell C2 by the total combined sample weights for characterization #1 and #2 in cell C3. Enter composite Contamination percentage into cell C4 for characterization #1 and #2. In the example provided above, no additional supplemental characterizations are needed as the Contractor's Contamination percentage of 23% did not exceed the Phase 1 contamination cap of 25%. This calculation shall be done for all three streams (MSW, Recyclable Materials and Co -Collected Food Scraps/Green Waste).
Scenario 2: Phase 1 Contamination Cap Achieved Using Supplemental Characterizations
Table N6.3: Sample calculations if Phase 1 contamination cap is NOT met but a supplemental characterization (Column D) is conducted and incorporated into the averages and the cap is achieved
A B C D
* Note: The numbers in the sample calculations in this Attachment N are for example only and do not reflect the actual values of the sampling results.
Step 1. Repeat steps 1 - 6 above to calculate Total Composite Annual Contamination percentage in cell C4. If this amount exceeds the Contamination cap (in this case 25%), the Contractor may conduct one (1) supplemental characterization and enter the results into column D to calculate an updated Contamination percentage.
Attachment N Page 28 of 29
20-443
Total Composite
Total Composite
Annual
Supplemental
Characterization #1
Characterization #2
Annual
Characterization
Characterization
Characterization
With Supplemental
Characterization
Divertable Materials (Ibs).
154
210
364
150
514
ContaminantsIlbs.l
45 80
125
25 150
Total Sample Weight (lbs.)
199
290
489
175
664
23%
28%
26%
14%
23%
Contamination Percentage
* Note: The numbers in the sample calculations in this Attachment N are for example only and do not reflect the actual values of the sampling results.
Step 1. Repeat steps 1 - 6 above to calculate Total Composite Annual Contamination percentage in cell C4. If this amount exceeds the Contamination cap (in this case 25%), the Contractor may conduct one (1) supplemental characterization and enter the results into column D to calculate an updated Contamination percentage.
Attachment N Page 28 of 29
20-443
Attachment N
Characterizations of Divertible Materials and MSW and Periodic Onsite Field Cart Contamination Audit Protocols
Step 2. Enter weight (in lbs.) of Divertible materials from supplemental characterization into cell D1 and enter weight (in lbs.) of Contaminants from supplemental characterization into cell D2.
Step 3. Sum total sample weight (in lbs.) of Divertible Materials (D1) and Contaminants (D2) from supplemental characterization into Cell D3.
Step 4. Calculate Contamination percentage in cell D4 for supplemental characterization by dividing the Contamination weight (cell D2) by the total sample weight (cell D3). Enter calculated contamination percentage into cell D4 for supplemental characterization.
Step 5. Add weight of composite Divertible Materials from cell C1 to Divertible Materials from Supplemental Characterization in cell D1 and enter sum into cell E1. Add weight of composite Contaminants from cell C2 to Contaminants from Supplemental Characterization in cell D2 and enter sum into cell E2. Add weight of total sample from cell C3 to Total Sample Weight from Supplemental Characterization in cell D3 and enter sum into cell E3.
Step 6. Calculate Total Composite Annual Characterization with Supplemental Characterization in cell E4 by dividing the combined Contamination weight for all characterizations in cell E2 by the total combined sample weights for all characterizations in cell E3. Enter composite Contamination percentage into cell E4 for all characterizations. In the example provided above, with the supplemental characterization, the Contractor's composite Contamination percentage of 23% did not exceed the Phase 1 Contamination cap of 25%. This calculation shall be done for all three streams to determine the Contamination percentage achieved for each stream (MSW, Recyclable Materials and Co -Collected Food Scraps/Green Waste).
Attachment N Page 29 of 29
20-444
ATTACHMENT O
DESCRIPTION OF MATERIALS RECOVERY PROCESSING FACILITY— CLEAN MRF Commingled Recyclables
Material Recovery Facility proposed to be used to process Single Material Separated Recyclable Materials and Single Stream Recyclable Materials The following facility is owned and operated by CR&R Incorporated:
Name & Location of Facility:
CR&R Intermediate Processing Center (Western Ave Clean MRF) 11291 Western Avenue
Stanton, CA 90680
Contact: Bob Williams, Recycling Manager, 714.890.6300, ext. 2267 Solid Waste Information System (SWIS) Identification Number: 30 -AB -0013 Material to Be Processed:
• All Single Stream and Single Material Recyclable Materials Waste Stream Origination:
Residential Single Stream Recyclable Materials Carts
Available, uncommitted processing capacity in Tons Per Day and Facilities Total permitted Capacity in tons per day:
Contractor represents that the Western Ave Clean MRF facility has "unlimited volume by regulation".
The facility currently operates with 2 shifts per day and has been as high as three shifts per day with prior sort lines. The facility has been expanded to three lines and added sorters capable of 25 to 30 tons per hour.
2 shifts: 450-500 tpd
3 shifts: 700-720 tpd
This facility currently processes all single material and single stream recyclables collected from the City of Newport Beach and has capacity for (i) future expanded recycling program implementation and (ii) addition of neighborhoods listed in Attachment Z (if directed by City).
Current capacity reserved and guaranteed for City of Newport Beach: 10,000 tons per year Permits:
Per Agreement Section 6, copies of all permits will be submitted to the City within 15 days of the Effective Date of the Agreement.
Attachment O
20-445
ATTACHMENT P
COMPOST FACILITY TO BE USED FOR PROCESSING CO -COLLECTED GREEN
WASTE AND FOOD SCRAPS
Name & Location of Facility:
The following facility is owned and operated by CR&R Incorporated:
South Yuma County Landfill
19536 South Avenue 1 E
Yuma, AZ. 85365
Contact:
William Hunter, Manager, 928 341-9300
This is a fully permitted 30 -acre site on the South Yuma County Landfill. This facility currently composts organics collected in the Yuma County, Arizona and Imperial County of California.
Capacity in tons per day:
Unlimited capacity. No tonnage restriction on Newport Beach amounts.
Material to Be Processed:
Co -collected yard trimmings and food scraps Food scrap Current capacity reserved for Residential Food Scraps and Green Waste from Newport Beach:
7,000 tons per year
Equipment:
Wheel loaders Caterpillar, 966 Vermeer- windrow turner, Vermeer trommel Per Agreement Article 6, copies of all permits will be submitted to the City within 15 days of Agreement execution.
Attachment P
20-446
Attachment Q: Map of Contractor's Entire Service Area
(as of Effective Date)
0 1 2 4
Miles
New
N evu
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20-447
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20-448
Attachment S
Maps of Summer Saturday Service Areas in City
Route Map of Summer Saturday
Service on Balboa Peninsula to STR's and Non-STR's
W 1601 St at Pat lhS� Mann ers DT
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20-449
Attachment S
Maps of Summer Saturday Service Areas in City
Route Map of Summer Saturday
Service on Balboa Peninsula to STR's and Non-STR's
Northern Peninsula
N
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Permanent STIR with Summer Saturday Service
Non-STR Residential Summer Saturday Service
0 0.125 0.25 0.5
Miles
20-450
Attachment S
Maps of Summer Saturday Service Areas in City
Route Map of Summer Saturday
Service on Balboa Peninsula to STR's and Non-STR's
Northern Central Peninsula
ROW Part. P.
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Non-STR Residential Summer Saturday Service „ 'o
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0 0.125 0.25 0.5 f
Miles 4
20-451
III
Attachment S
Maps of Summer Saturday Service Areas in City
Route Map of Summer Saturday
Service on Balboa Peninsula to STR's and Non-STR's
Central Peninsula
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Non-STR Residential Summer Saturday Service
0125 025 0.5
Miles
20-452
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0125 025 0.5
Miles
20-452
Attachment S
Maps of Summer Saturday Service Areas in City
Route Map of Summer Saturday
Service on Balboa Peninsula to STR's and Non-STR's
Southern Peninsula
Hauler Route
Permanent STIR with Summer Saturday Service
Non-STR Residential Summer Saturday Service
0.125 0.25 0.5
Miles
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20-453
Ai
ATTACHMENT T
Guaranty
THIS GUARANTY (the "Guaranty") is given as of the day of 2021, by (hereafter "Guarantor"), to the CITY OF NEWPORT BEACH, a public agency (hereafter "the City").
THIS GUARANTY is made with reference to the following facts and circumstances:
A.
laws of the State of
is a corporation organized under the
("Contractor"). Guarantor is a
B. The City contemplates entering into a "Contract for the Collection, Transportation, Processing and Diversion of Recyclable Materials, Food Scraps/Green Waste and Other Materials and for the Collection, Transportation and Disposal of Municipal Solid Waste " ("Agreement") under which Contractor is to provide specified services to the City, its residents. A copy of this Agreement is attached hereto and incorporated herein by this reference.
C. It is a requirement of the Agreement, and a condition to the City's entering into the Agreement, that Guarantor guaranty Contractor's performance of the Agreement.
D. Guarantor is providing this Guaranty to induce the 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 the 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 and conditions of the Agreement, Guarantor will promptly and fully perform, satisfy or observe them in the place of the Contractor. Guarantor hereby guarantees payment to the City of any damages, costs or expenses, which might become recoverable by the City from Contractor due to its breach of 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 conditional upon the genuineness, validity, regularity or enforceability of the Agreement.
3. Waivers. The Guarantor shall have no right to terminate this Guaranty or to be released, relieved, exonerated or discharged from its obligations under it for any reason whatsoever, including, without limitation: (1) the insolvency, bankruptcy, reorganization or cessation of existence of the Contractor; (2) any
20-455
ATTACHMENT T
Guaranty
amendment, modification or waiver of any provision of the Agreement; (3) the actual or purported rejection by a trustee in bankruptcy of the Agreement, or any limitation on any claim in bankruptcy resulting from the actual or purported 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 the City's rights or remedies against Contractor; or (5) any merger or consolidation of the Contractor with any other corporation, or any sale, lease or transfer of any or all the assets of the Contractor. Without limiting the generality of the foregoing, Guarantor hereby waives the rights and benefits under California Civil Code Section 2819.
The Guarantor hereby waives any and all benefits and defenses under California Civil Code Sections 2845, 2849 and 2850, including, without limitation, the right to require the City to (a) proceed against Contractor, (b) proceed against or exhaust any security or collateral the City may hold now or hereafter hold, or (c) pursue any other right or remedy for Guarantor's benefit, and agrees that the 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 the City may hold now or hereafter hold. Guarantor agrees that the 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 the 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 the 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; or (d) any assignment of the Agreement is effected which does not require the City's approval.
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 the City as a preference, fraudulent transfer or otherwise, irrespective of (a) any notice of revocation given by Guarantor or Contractor prior to
20-456
ATTACHMENT T
Guaranty
such avoidance or recovery, and (b) payment in full of any obligations then outstanding.
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 the 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 claim by the 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 the 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 the 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 the 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 the 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 the 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:
(Name)
(Address, City, State, Zip)
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 the City and its successors and shall be binding upon Guarantor and its successors, including transferee(s) of substantially all of its assets.
20-457
ATTACHMENT T
Guaranty
10. Authority. Guarantor represents and warrants that it has the corporate power and authority 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(s) signing this Guaranty on its behalf has the authority to do so. [For personal guaranty by owner omit this Section
10.]
11. Subordination. Any claims Guarantor may have against Contractor are hereby subordinated to any and all claims of the City against Contractor until such time as the obligations of Contractor to the City are fully satisfied and discharged.
12. Notices. Notice shall be given in writing, deposited in the U.S. mail, registered or certified, first class postage prepaid, addressed as follows:
To the City: City of Newport Beach
Attention: City Manager
300 Centennial Way
Tustin, California 92780
With a copy to the City Attorney at the same address.
To Guarantor: Name
Street Address
City, State, Zip Code
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.
By:
Name:
Title:
By:
Name:
Title:
20-458
ATTACHMENT U
Minimum Required Duties of Recycling Coordinators
Number of Recycling Coordinators
Pursuant to Section 7.05.1-1 of the Agreement, Contractor shall provide two (2) full-time Recycling Coordinators (herein "Coordinator(s)") for the period of January 15, 2022 through March 31, 2023. Effective April 1, 2023, Contractor shall provide one (1) full-time Recycling Coordinator.
Summary of Duties
The Recycling Coordinator(s) shall provide waste reduction and Recycling education to Residents; support and assist with Processing Facility characterizations described in Attachment N; perform the on-site field Cart Contamination audits described in Attachment N; and perform quantitative analyses of the results of such characterizations and audits. The Coordinator(s) shall provide assistance to the City and Customers with regard to chronic complaints, persistent billing and/or payment issues and disputes, ongoing problems or issues with Diversion program implementation, outreach, Contamination of Recyclable Materials and/or Food Scraps/Green Waste, and other troubleshooting and issues as directed by the City. The Recycling Coordinator(s) shall be responsible for completing reports to the City as required by this Agreement. The Recycling Coordinator(s) shall assist with developing social media posts for distribution via the City's social media channels as a means to increase participation in, and awareness of, Diversion programs. The Recycling Coordinator(s) shall possess and demonstrate the following skills, judgment, maturity and experience in performing the duties described herein: (a) understand that successful resolution of complaints, billing disputes and other problems requires excellent listening skills, diplomacy, tact, and perseverance; (b) utilize said skills when interacting with Residents and other members of the public, City staff and City's agents, and all other Persons; (c) demonstrate enthusiasm when explaining the Diversion programs to Residents and other Persons; (d) demonstrate empathy and understanding of Residents' concerns, problems, gaps in understanding about Diversion programs and utilize creativity and inventiveness to relate information to Residents to address the issues they express; (e) take a positive, self-starting approach to proactively address potential problems and issues and to resolve such issues and problems; (f) maintain clear communication with City and City's agents concerning all work performed.
Primary job responsibilities for the Recycling Coordinator positions are:
1. General Duties
a. Spend at least eighty percent (80%) of time in field work (out -of -office) providing: outreach to individual Residents and community associations; performing on-site field Cart Contamination audits for MSW, Recyclable Materials, and Food Scrap/Green Waste as described in Attachment N; providing on-site inspections; photo documentation of Collection problems and subsequent resolution of problems; discussions with Attachment U Page 1 of 4
20-459
ATTACHMENT U
Minimum Required Duties of Recycling Coordinators
Contractor's operations and Collection drivers, dispatchers, and other personnel, and Residents or Authorized Customer Representatives (owners and managers) at Customer locations that are experiencing difficulties with Collection, billing or other issues; and other duties as needed.
b. Have an understanding of SB 1383 and all AB 939 requirements and how each relates to implementation of Diversion programs.
c. Conduct quantitative analyses, including development and use of spreadsheets and databases.
d. Utilize MS Word, MS Excel, and MS PowerPoint to create and deliver professional and informative reports that satisfy the requirements in the Agreement and clearly report and track progress in Diversion programs, problems with Contamination, and pinpoint source(s) of Contamination and/or lack of Resident participation in the Diversion programs and provide and implement solutions.
e. Participate in meetings with City to develop solutions that advance the City's Diversion objectives.
f. Perform related support duties as required by City
g. Serve as a community resource with regard to Recycling and Diversion programs.
h. Work in a full and transparent manner with City and its agents in troubleshooting and implementing diversion programs including working on and providing information on Processing Facility characterizations and on-site field Cart Contamination audits and plans, materials processing, materials marketed, prices received, processing costs and challenges for sorting, processing and/or marketing recyclable materials, Compost created from Green Waste and Food Scraps, and markets for other products and by-products of the processing of Diverted materials.
Operational Duties
a. Make site visits and/or telephone calls to Residents that have recurring Contamination in any stream(s) (i.e. MSW, Recyclable Materials and/or Food Scraps/Green Waste) and/or overflowing Carts or Uncontainerized MSW or Divertable Materials to educate the Resident about City ordinance requirements and options for source reduction and additional Carts.
b. Conduct site visits and/or telephone calls to Residents with repeated service issues to troubleshoot.
c. Perform all of the required on-site field Cart Contamination audits and follow-up items set forth in Attachment N.
d. Monitor Diversion program participation as required by Attachment B.
Attachment U Page 2 of 4
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ATTACHMENT U
Minimum Required Duties of Recycling Coordinators
3. Outreach Duties
a. Assist with the door-to-door distribution of kitchen pails to Residents during the Food Scrap/Green Waste program roll-out in 2022 and with the distribution of kitchen pails for Residents who request them thereafter. Engage in conversations with Residents to describe the program and to answer questions.
b. Conduct required annual follow-up to Residents that have rejected Recyclable Materials Carts and Collection service or Food Scrap/Green Waste Carts and Collection service or have rejected the kitchen pail.
Provide reports to City regarding the results of these interactions to assist the City with potential enforcement its ordinances and to tailor additional public education and information to the concerns, questions, fears and problems expressed by Residents.
c. Distribute the public education and outreach materials required by Attachment N and Attachment X for routes that exceed 25% contamination. Assist with the production of training videos for Residents, as needed.
d. Assist with the development of social media postings for distribution via the City's social media channels.
e. Assist with the development and distribution of targeted written outreach materials to Residents and community associations such as letters, flyers, brochures, infographics, etc.
f. Assist with developing webpage content regarding the Recyclable Materials and Food Scrap/Green Waste Collection programs and other topics as required by SB 1383 for inclusion on Contractor's and/or City's website
g. Independently schedule and conduct meetings with Authorized Customer Representatives at HOAs that receive Residential Cart service and community groups to secure participation in increased recycling efforts, including Food Scrap Diversion and to reduce Contamination. h. Train Residents regarding implementing Diversion of Recyclable Materials and Green Waste/Food Scraps and provide technical assistance in developing logistics and troubleshooting at the community association level and at individual Residences.
i. Prepare public outreach and education materials as required by the Agreement.
j. Attend all City -sponsored special events where Recycling and/or the environment are the theme or topic. Staff a booth, tabletop or other appropriate method to disseminate educational materials, show videos and provide public information on Diversion programs, preventing Contamination, and other related topics.
Attachment U Page 3 of 4
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ATTACHMENT U
Minimum Required Duties of Recycling Coordinators
k. Plan and implement Recycling programs at all City -sponsored special events to divert cardboard, glass, mixed paper, aluminum cans, plastic and other beverage containers, newspaper, Food Scraps and any other materials that can be diverted.
I. Speak and make presentations to community groups, schools, homeowners associations, and other organizations about the City's Diversion programs.
4. Customer Service Duties
a. Provide training, troubleshooting, education and answers to questions to Residential Customers.
b. Proactively troubleshoot and provide Customer -friendly resolutions to service, billing and other chronic or persistent problems in coordination with the City staff representative(s).
c. Proactively and quickly respond to questions, problems and issues from City staff representative and provide prompt feedback on resolution of issues.
d. Coordinate and interface with other agencies, organizations, companies, City and City representatives.
Attachment U Page 4 of 4
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ATTACHMENT V
Sure Close Food Scrap Container
Photo of Sure Close Container
Specifications of Sure Close Container
Volume
1.9 gallons (7.1 liters)
Weight
1.1 lbs. 0.5 k
Width 11"
Dimensions
Height 9.5"
Depth 8.5"
Hinged, stay open, odor seal, and
Lid
fly and insect seal
Dishwasher safe
Yes
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Attachment W
TRANSFER STATION OPERATING AGREEMENT
THIS TRANSFER STATION OPERATING AGREEMENT ("Agreement") is made and entered into as of this _ day of , 2022, by and between the City of Newport Beach, a charter city and municipal corporation ("City"), and CR&R Incorporated, a California corporation whose address is 11292 Western Avenue, Stanton, California 90680, ("Operator"). City and Operator are at times individually referred to as "Party," and collectively as "Parties" herein.
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City.
B. City owns a small one (1) acre transfer station at its eight point two (8.2) acre Corporation Yard located at 592 Superior Avenue in Newport Beach and legally described and depicted in Exhibit "A", attached hereto and incorporated by reference ("Station").
C. The Station is currently operated by Operator pursuant to the "Transfer Station Operating Agreement" dated , 2013. The station is operated under Solid Waste Facility Permit No. 30 -AB -0361, attached hereto as Exhibit "B" and incorporated herein by reference.
D. Since 1972, this Station has been the collection point for beach, street, and park debris from throughout the City. The Station receives small loads of beach cleaning wastes collected in City pickup trucks. The station also receives Municipal Solid Waste and Recyclable Materials Collected by Operator in the City of Newport Beach and in other jurisdictions. Recyclable Materials are consolidated into larger loads and hauled to processing facilities for sorting.
Municipal Solid Waste is consolidated into large transfer trucks and transported to the Orange County Landfill System for Disposal.
E. As the operator of the station for the past eight (8) years, Operator is familiar with the existing conditions and operations of the Station and accepts the Station under this Agreement in its current "AS -IS" condition.
F. The City and Operator have entered into an agreement entitled "Agreement for the Collection, Transportation, Processing and Diversion of Residential Recyclable Materials, Food Scraps, Green Waste and for the Collection, Transportation and Disposal of Municipal Solid Waste" dated January 1_, 2022 ("Residential Agreement"). The Residential Agreement contemplates Operator's continued use and operation of the Station as described in this Transfer Station Operating Agreement.
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NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as follows:
AGREEMENT
1. Term
1.1 Effective Date
The "Effective Date" of this Agreement shall be January 15, 2022.
1.2 Initial Term
The term of this Agreement shall commence on January 15, 2022, and expire on December 31, 2029, subject to extension as provided in Section 1.4 ("Term"). Notwithstanding the foregoing, this Agreement shall automatically terminate, without further action by the Parties, upon the expiration or termination of the Residential Agreement.
1.3 City's Option to Extend Term
City may, in its sole discretion, extend the Term for two (2) one-year periods to match the term of the Residential Agreement, which has the same initial eight (8) year term and may be extended pursuant to provisions in the Residential Agreement. In such event, City shall give Operator written notice of such extension a minimum of six (6) months prior to the end of the initial or extended Term.
2. Compensation
2.1 Annual Compensation
Operator shall pay City Four Hundred Seventy -Two Thousand, Eight Hundred Dollars ($472,800) per calendar year ("Compensation") during the term of this Agreement in exchange for the right to operate the Station under this Agreement. This annual amount shall be paid in twelve (12) equal monthly installments payable on or before the fifteenth (15th) day of each month. The Compensation shall be adjusted each July 1, with the first adjustment July 1, 2022 (to coincide with the compensation adjustment under Section 12.03 of the Residential Agreement). The Compensation shall be adjusted by the change in the Consumer Price Index for All Items except Food, Energy and Fuel in Los Angeles -Long Beach -Anaheim, CA, all urban consumers, not seasonally adjusted (CUURS49ASOL1 E) ("CPI"), or two and one half percent (2.5%), whichever is less. The calculation shall be performed pursuant to the protocols in Attachment J of the Residential Agreement for calculation of changes to the CPI.
2.2 Place for Payment of Compensation
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All payments of Compensation shall be made in lawful money of the United States of America and shall be paid to City online at www.newportbeachca.gov , in person or by United States' mail, or overnight mail service, at the Cashier's Office located at 100 Civic Center Drive, Newport Beach, CA 92660, or to such other address as City may from time -to -time designate in writing to the Operator. The Operator assumes all risk of loss and responsibility for late charges and delinquency rates if payments are not timely received by the City regardless of the method of transmittal.
2.3 Late Charges
A ten percent (10%) late charge, or the maximum rate allowable under State law, shall be added to all payments due but not received by City within ten (10) calendar days following the due date. In addition, all unpaid amounts shall accrue at a delinquency rate of one and a half percent (1.5%) per month or any portion of a month until paid in full.
3. Operator's Duties
3.1 Compliance with Solid Waste Facility Permit No. 30 -AB -0361 and Applicable Laws Operator, at its own cost, shall operate the Station in strict compliance with all the conditions, requirements, restrictions, and/or regulations provided in Solid Waste Facility Permit No. 30 -AB -0361, and any amendments thereto. Operator, at its own cost, shall operate the Station in compliance with all applicable laws, rules, policies, and regulations. Failure to strictly comply with Solid Waste Facility Permit No. 30 -AB -0361 or any applicable law, rule, policy, or regulation may result in the immediate termination of this Agreement by City.
3.2 Supervisor Requirements
Operator shall provide a qualified on-site supervisor at the Station during all hours of operation to ensure a safe, orderly, and legal operation at the Station. The supervisor's duties shall include, but not be limited to, the following:
(A) Observe all dumping activity; vehicles shall not dump without the supervisor present; (B) Log dumping activity throughout the day, recording time, vehicle number, gross, tare, and net weight (where applicable), source (residential, commercial, or other [e.g., beach or park containers]);
(C) Assign vehicles to appropriate stalls for dumping;
(D) Ensure safe operation on the Station deck and surrounding area, and ensure personnel are using required safety gear;
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(E) Clean up the Station deck after each truck dumps to control litter; (F) Pick up litter in the Transfer Station area and lower yard, including the fence line; (G) Clean pits as necessary when trailers are moved to control and mitigate litter; (H) Coordinate with the transfer drivers to ensure a sufficient number of empty trailers to handle the flow of Municipal Solid Waste, Recyclable Materials and Food Scraps/Green Waste; (1) Using a semi tractor, pull loaded trailers out of dumping pits and stage for transfer drivers; using a semi tractor or yard tractor, spot empty trailers in dumping pits; (J) Use water hose to reduce dust during dumping operations and to clear debris from the top of loaded trailers when they are being pulled out of the pits; (K) Ensure operations are being performed as required by Solid Waste Facility Permit No. 30 - AB -0361, as it may be amended, and that required records and logs are being compiled and kept up to date on a daily basis;
(L) Direct traffic as needed in lower yard area to allow vehicle movement; (M) Report any operational issues to assigned City contact; and (N) Maintain and repair the Station to ensure its continued operation and compliance with Solid Waste Facility Permit No. 30 -AB -0361 and applicable law.
3.3 Standard of Care, Workmanship, Supervision
(A) The Operator shall provide a work force sufficient to operate and maintain the Station under this Agreement and all members of the work force shall be hired in compliance with State and Federal law.
(B) All work under this Agreement shall be performed by competent and trained employees.
Operator represents that it possesses the professional and technical personnel required to perform the services required by this Agreement, and that it will perform all services in a manner commensurate with professional industry standards. All services shall be performed by qualified and trained personnel who are not employed by City, nor have any contractual relationship with City. Operator hereby certifies that all work performed under this Agreement will conform to the requirements of this Agreement and all applicable federal, state and local laws and the professional standard of care.
(C) The work force shall include thoroughly skilled, experienced, and competent supervisors who shall be responsible for adherence to the terms of this Agreement by directly overseeing the Station operations. All supervisory personnel must be able to communicate effectively in n
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English (both orally and in writing). An order given to supervisory personnel shall be deemed delivered to the Operator. Operator shall provide City with a designated supervisors name(s) and shall notify the City of the name of any successor within ten (10) calendar days of change in supervision.
(D) All Operator personnel working in the City shall be neat in appearance and in uniform. (E) Operator represents and warrants to City that it has, shall obtain, and shall keep in full force in effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance, and approvals of whatsoever nature that is legally required of Operator to practice its profession. Operator shall maintain a City of Newport Beach business license during the term of this Agreement.
(F) Whenever Operator has knowledge that any actual or potential labor dispute is delaying or threatens to delay the timely performance of this Agreement, Operator shall immediately give notice to City of all relevant information. In the event of a labor dispute which delays or impacts the performance of work under this Agreement, City reserves the right to use its own forces or to contract with others to perform the work at the Station. City and Operator agree that it will be deemed a breach of this Agreement if Operator cannot provide full services at the Station seven (7) calendar days after services have been impacted or delayed as a result of a labor dispute.
(G) Operator shall attend meetings, special events and public meetings as requested by the City. Operator shall provide all necessary and appropriate personnel to attend each meeting and any requested promotional material so that the topics on the agenda can be addressed fully and completely.
(H) At the termination or expiration of this Agreement, Operator shall deliver the Station to the City in the same or better condition as existed at the Effective Date of this Agreement.
3.4 No Storage of Waste Material
Operator shall not store, nor permit others to store, Municipal Solid Waste, Recyclable Materials, Food Scraps or Green Waste at the Station overnight, except as allowed under this section. All Municipal Solid Waste and Divertible Materials shall be transferred and transported daily by Operator, at its sole cost, to an appropriate facility as required by applicable law and Solid Waste Facility Permit No. 30 - AB -0361, and any amendments thereto. Clean, dry Recyclable Materials may remain at the Station for a period not to exceed twenty-four (24) hours.
4. Priority to Material Generated within City of Newport Beach 5 20-468
The Operator shall give first priority to the receipt and transfer of all Municipal Solid Waste, Recyclable Materials and Food Scraps/Green Waste collected pursuant to the Residential Agreement including abandoned items and City litter container Municipal Solid Waste and Recyclable Materials collected by City crews and third -party vendors under contract with the City. Second priority shall be given to other Municipal Solid Waste, Recyclable Materials, Food Scraps and Green Waste generated within the City of Newport Beach. To the extent there is excess capacity, beyond that needed for the City of Newport Beach, the Operator may unload and transfer Municipal Solid Waste and Divertible Materials generated from other jurisdictions.
5. Hours of Station Operation
The Station may operate seven (7) days per week, Monday through Sunday. Hours of operation for material acceptance and transfer are 6:30 a.m. to 4:00 p.m. Monday through Friday, 7:00 a.m. to 4:30 p.m. on Saturday and 7:00 a.m. to 11:00 a.m. on Sunday. Sunday operations will be limited to only the transfer of Municipal Solid Waste, Recyclable Materials and/or Food Scraps/Green Waste from the transfer station to a materials recycling facility such as CR Transfer or to be landfilled. No Municipal Solid Waste will be received at the Station on Sundays. In addition, Sunday operations will be limited to a maximum of fifteen (15) days per calendar year.
6. Daily Capacity Limit
At present, Solid Waste Facility Permit No. 30 -AB -0361 authorizes the receiving of up three hundred (300) tons of materials per day at the Station, subject to limitations, if any, provided in the permit.
7. Vehicle Specifications.
7.1 Vehicle Markings
The vehicles used pursuant to this Agreement shall have the name of the Operator, the Operator's local telephone number, and a unique vehicle identification number for each vehicle prominently displayed on all vehicles.
7.2 Number of Vehicles
Operator shall, at all times, provide such number of vehicles and such equipment as will be adequate for the services authorized under this Agreement.
7.3 DMV and BIT Inspections
All vehicles utilized by Operator in the performance of this Agreement shall be registered with the California Department of Motor Vehicles. All vehicles shall pass the required periodic California Highway Patrol biennial inspection of the terminals ("BIT"). Within fifteen (15) calendar days of the BIT inspection, Operator shall provide records from all of the terminal(s) responsible for the �0
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maintenance and repair of equipment used in the City. All vehicles and equipment used by Operator in the performance of this Agreement shall be subject to inspection by the City upon twenty-four (24) hours' notice.
7.4 Vehicle Maintenance
All vehicles shall be properly maintained, kept clean and in good repair, and shall be uniformly painted.
Operator agrees to replace or repair to City's satisfaction, any vehicle that City determines to be of unsightly appearance, leaking, or in unsatisfactory operating condition.
7.5 Drivers
All drivers employed by Operator and operating equipment in the City shall be properly licensed for the class of vehicle they drive, enrolled in the Department of Motor Vehicles Employee Pull Notice ("EPN") program, and abide by all State and federal regulations for driver hours and alcohol and controlled substances testing.
7.6 Spills
Each vehicle shall be so constructed and used in a manner so that no Municipal Solid Waste, Recyclable Materials, Food Scraps, Green Waste„ oil, grease or other material will blow, fall, or leak out of the vehicle. All materials shall be transported by means of vehicles which are covered in such a manner as to securely contain all Municipal Solid Waste, Recyclable Materials and Food Scraps/Green Waste and to prevent such materials from projecting, blowing, falling or leaking out of the vehicles. Any Municipal Solid Waste, Recyclable Materials and/or Food Scraps/Green Waste dropped or spilled in transfer or transportation shall be immediately cleaned up by Operator. A broom, shovel and all other industry -standard equipment shall be carried at all times on each vehicle for this purpose. Operator shall use all available industry best practices to prevent spills of fuel and fluids (such as oil, hydraulic fluid, brake fluid, etc.) on streets. A liquid spill kit shall be carried at all times on each Collection vehicle for this purpose. If such a spill occurs, Operator shall immediately notify the City (including the Director of Public works or his/her designee and the City's NPDES Coordinator) and all proper regulatory authorities of said spill and release of fluids. City shall be notified no later than one (1) hour after the spill. Operator shall clean, at Operator's expense, the spilled fluids in coordination with, and to the satisfaction of, City and applicable regulatory agencies. Upon a release of such fluids, the driver shall immediately park the vehicle and it shall remain parked until the leak is repaired. In such event Operator shall not park the leaking vehicle within two hundred (200) feet of a storm drain and shall utilize absorbent material, sand bags or other appropriate means to prevent leaking fluids from entering storm drains. In the event of any type of spill or other emergency, Operator shall be responsible for securing the immediate safety of the vehicle driver, all other employees of Contractor and all persons and property in the surrounding vicinity. As of the Effective Date of this Agreement, Operator shall initiate and provide continuous (at least monthly) training of all Station employees, transfer drivers and all applicable management employees in the proper handling of any spills to prevent such spills from entering storm VA
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drains or otherwise creating environmental damage or damage to persons, property, wildlife, animals, vegetation, the ocean, waterways, or releases to the atmosphere. Such trainings shall include a simulation of a spill with transfer drivers physically performing the appropriate actions and activities to contain spilled fluid(s), at least one (1) time each year. Operator shall not transfer loads from one vehicle to another on any public street or private roadway, unless it is necessary to do so because of mechanical failure or damage to a vehicle which renders it inoperable, and the vehicle cannot be towed. A communications device such as a two-way radio or a cellular telephone shall also be maintained on each vehicle at all times.
7.7 No Equipment Storage in Public Right -of -Way
Operator shall not store any vehicle or equipment on any public street, public right-of-way, or other public property (other than the Station) in the City of Newport Beach without obtaining a Temporary Street Closure Permit from the Public Works Department and prior written consent of the City.
7.8 Vehicle Removal from Service
Should the City at any time give written notification to Operator that any vehicle does not comply with the standards hereunder, the vehicle shall be promptly removed from service by Operator and not used again until inspected and authorized in writing by the City.
7.9 Driver Citations
All vehicles used in performance of this Agreement shall be maintained and operated in conformance with all applicable laws, statutes, rules, and regulations. The issuance of four (4) or more vehicle, driver/operator, or other citations for moving violations (including but not limited to, exceeding the speed limit, unsafe speed, unsafe driving, reckless driving, running a red light, and unsafe turns) that relate in any way to operations performed pursuant to this Agreement within a twelve (12) month period shall be deemed to be a breach of this Agreement.
7.10 City Station Equipment
City owns a yard mule, tractor, and backhoe that Operator may use at the Station for Station operations.
Operator is fully responsible for providing all proper maintenance of, and repairs to, this equipment. City will not replace, repair, or maintain the equipment and Operator remains fully responsible for providing all equipment, and associated maintenance and repairs, necessary to operate the Station and its equipment.
:,
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10. City Fueling Station
City benefits from the sale of compressed natural gas ("CNG") at the CNG fueling station adjoining the Station. Operator agrees to purchase CNG from this fueling station for any equipment used under this Agreement that is powered by CNG, with this fueling station and Operator's facility on Lampson in Garden Grove as the primary facilities for fueling and of Operator's CNG -using equipment used in the performance of this Agreement. At present, Operator intends to use diesel powered equipment at the Station. All vehicles and equipment used at the Station and for transport of Municipal Solid Waste, Recyclable Materials and Food Scraps/Green Waste shall operate in full compliance with the requirements of the California Air Resources Board and the South Coast Air Quality Management District's rules and regulations including, but not limited to, Rule 1193.
11. Administration
This Agreement will be administered by the Public Works Department. The Director of Public Works, or his/her designee, shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his/her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement.
12. Documents
12.1 Reports
Operator shall assist the City, providing data as needed for reports due to CalRecycle under AB 939, AB 341, AB 1826, SB 1383 and similar legislation.
12.2 Monthly Reports
Within thirty (30) calendar days of the end of each calendar month, Operator shall submit to City for the preceding month reports setting forth, at a minimum, the following information for services provided and tonnage processed under this Agreement:
(A) Any complaints (e.g., written or oral comments received by Operator expressing dissatisfaction with Operator or any services provided by Operator that relate in any manner to this Agreement);
(B) The total amount (in tons) of Municipal Solid Waste, Recyclable Materials, Food Scraps, Green Waste, and Commingled Food Scraps/Green Waste which Operator received and transferred at the Station during the reportable month divided between material generated within the City of Newport Beach and material from other jurisdictions (to the extent there is excess capacity); and
(C) Any other information that may be requested by City from time -to -time.
E
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12.3 Quarterly Reports
In addition, on a quarterly basis, Operator shall submit to City any equipment, terminal safety, employee safety and inspection reports, citations, records and other documents for all Operator's operations and activities that relate in any way to this Agreement including, but not limited to, periodic California Highway Patrol biennial terminal inspection reports; vehicle citations; California Highway Patrol Incident reports; citations issued to drivers/operators; other citations issued to the Operator or its employees; California Occupational Safety and Health Administration 300 reports; and Lead Environmental Agency inspection/ compliance reports.
Each quarterly report and accompanying reports/citations shall be submitted on or before the thirtieth (30th) day of the month following the end of the quarter (i.e., report due April 30 for first quarter after the Effective Date).
12.4 Report Submittal
Monthly and quarterly reports shall be submitted electronically to the City in a format approved by the City and also submitted in hard copy to:
Director of Public Works
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92658
12.5 Audits
City has the right to audit the Operator at any time to verify that Operator is in compliance with the terms and conditions of this Agreement including, but not limited to, the auditing of facility Recycling and other Diversion records, Diversion statistics, landfill rate increases, vehicle records and safety records. Should an audit conducted or authorized by the City disclose that Diverted or Disposed tonnage was inaccurately reported to the City by more than two percent (2%), Operator shall reimburse the City's audit costs.
12.6 Report/Audit Disclosure/Reports As Public Records
No report, information or other data given to or prepared or assembled by Operator pursuant to this Agreement may be made available by Operator to any individual or organization without prior approval by City unless such disclosure is required by law or court proceedings. Notwithstanding the foregoing, the reports, records, and other information submitted (or required to be submitted) by Operator to City are public records within the meaning of that term in the California Public Records Act, Government Code Section 6250 et seq. Unless a particular record is exempted from disclosure by the California Public Records Act, it must be disclosed to the public by the City upon request. 10 20-473
13. Independent Contractor
It is understood that Operator is an independent contractor under this Agreement and Operator is not an agent or employee of City. The manner and means of conducting the work at the Station are under the control of Operator, except to the extent they are limited by statute, rule or regulation and the express terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Operator or any of Operator's employees or agents, to be the agents or employees of City. Operator shall have the responsibility for and control over the means of performing the work at the Station, provided that Operator is in compliance with the terms of this Agreement.
14. Cooperation
Operator agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the work to be performed. City agrees to cooperate with the Operator.
15. City Policy
Operator shall discuss and review all matters relating to policy and direction with City's Project Administrator in advance of all critical decision points in order to ensure the work at the Station proceeds in a manner consistent with City goals and policies.
16. Hazardous Waste
16.1 Hazardous Waste/Hazardous Substance Definition
For purposes of this Agreement, the terms "Hazardous Waste" and "Hazardous Substance" include, without limitation, any material or substance which is: (i) petroleum or oil or gas or any direct or derivate product or byproduct thereof; (ii) defined as a "hazardous waste," "extremely hazardous waste" or "restricted hazardous waste" under Sections 25115, 25117 or 25122.7, or listed pursuant to Section 25140, of the California Health & Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law); (iii) defined as a "hazardous substance" under Section 25316 of the California Health & Safety Code, Division 20, Chapter 6.8 (Hazardous Substance Account Act); (iv) defined as a "hazardous material," "hazardous substance," or "hazardous waste" under Sections 25501(p), (q), and (r) and 25501.1 of the California Health & Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory); (v) defined as a "hazardous substance" under Section 25281 of the California Health & Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances); (vi) "used oil" as defined under Section 25250.1 of the California Health and Safety Code; (vii) asbestos; (viii) listed under Chapter 11 of Division 4.5 of Title 22 of the California Code of Regulations, or defined as hazardous or extremely hazardous pursuant to Chapter 10 of Division 4.5 of Title 22 of the California Code of Regulations; (ix) defined as waste or a hazardous substance pursuant to the Porter -Cologne Act, Section 13050 of the California Water Code; (x) designated as a "toxic pollutant" pursuant to the Federal Water Pollution Control Act, 33 U.S.C. Section 1317; (xi) defined as a "hazardous waste" pursuant to the Federal Resource 11 20-474
Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq. (42 U.S.C. § 6903); (xii) defined as a "hazardous substance" pursuant to the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601, et seq. (42 U.S.C. § 9601); (xiii) defined as "Hazardous Material" pursuant to the Hazardous Materials Transportation Act, 49 U.S.C. Section 5101, et seq.; (xiv) defined as such or regulated by any "Superfund" or "Superlien" law; (xv) any asbestos or asbestos -containing material; (xvi) any chemical which the Governor has identified as a chemical known to the State to cause cancer or reproductive toxicity pursuant to California Health & Safety Code Section 25249.8; (xvii) or any other federal, state or local law, statute, ordinance, code, rule, regulation, order or decree regulating, relating to, or imposing liability or standards of conduct concerning Hazardous Materials and/or oil wells and/or underground storage tanks and/or pipelines, as now, or at any time hereafter, in effect. The term "Hazardous Waste" shall also include any and all amendments to the above - referenced statutory and regulatory provisions made before or after the date of execution of this Agreement. Where there is a conflict in the definitions employed by two or more agencies having jurisdiction over Hazardous Waste, the term "Hazardous Waste" shall be construed to have the broader, more encompassing definition.
16.2 General
Operator shall be aware of, and comply with, all laws, regulations and the Station Solid Waste Facility Permit issued by CalRecycle, relating to the handling and transportation of Hazardous Substances, as defined in this Agreement, including those requiring training and documentation. If Operator observes any substances which it believes to contain a Hazardous Substance it shall, as appropriate for the material found, immediately notify the appropriate regulatory agencies, and the City.
16.3 Operator to Segregate and Dispose
In the event Operator inadvertently transfers or transports any Hazardous Substance, Operator shall segregate Hazardous Substance, and shall arrange for its transport and disposal to a properly permitted recycling, treatment or disposal facility of Operator's choosing at Operator's sole expense.
Operator shall be solely responsible for the transport and disposition of all Hazardous Substance that is received at the Station by Operator. Operator will cooperate with City attempts to locate and collect the costs of such transport and disposition from the responsible party.
16.4 Operating Procedures and Employee Training
Operator shall establish, implement and maintain written operating procedures designed to ensure Operator's utilization of techniques and industry best practices for cities of the size and nature of the City of Newport Beach, to handle and dispose of Hazardous Substance and to ensure Operator's compliance with the provisions of this Section. Operator shall establish, implement and maintain an employee training program and shall ensure that employees responsible for the identification of Hazardous Substance are fully trained. Operator shall maintain documentation which describes the training received by its employees.
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17. Definitions
Any term not defined in this Agreement shall have the same meaning as provided in the Residential Agreement.
18. Insurance Requirements
18.1 Provision of Insurance
Without limiting Operator's indemnification of City, and on or before the Effective Date, Operator shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. Operator agrees to provide insurance in accordance with requirements set forth here. If Operator uses existing coverage under the Residential Agreement to comply and that coverage does not meet these requirements, Operator agrees to amend, supplement or endorse the existing coverage.
18.2 Acceptable Insurers
All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California subject to the jurisdiction of the California Insurance Commissioner, an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VIII (or larger) in accordance with the latest edition of A.M. Best's Insurance Reports , unless otherwise approved by the City's Risk Manager.
18.3 Coverage Requirements
(A) Workers' Compensation Insurance. Operator shall maintain Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance with limits of at least one million dollars ($1,000,000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code.
Operator shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its elected or appointed officials, agents, officials, employees and volunteers.
(B) General Liability Insurance. Operator shall maintain commercial general liability insurance and, if necessary, umbrella liability insurance, with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount not less than five million dollars ($5,000,000) per occurrence, ten million dollars ($10,000,000) general aggregate. The policy shall cover liability arising from premises, operations, products -completed operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract) with no endorsement or modification limiting the scope of coverage for liability assumed under a contract. 13 20-476
(C) Automobile Liability Insurance. Operator shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of Operator arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than ten million dollars ($10,000,000) combined single limit each accident. (D) Pollution Liability Insurance. Operator shall maintain a policy providing Operator's pollution liability ("CPL") coverage with a total limit of liability of no less than five million dollars ($5,000,000) per loss and ten million dollars ($10,000,000) in the aggregate per policy period dedicated to this operation. The CPL shall be obtained on an occurrence basis for a policy term inclusive of the entire period of operation. If all or any portion of CPL coverage is available only on a claims -made basis, then insurance must be maintained and evidence of insurance must be provided for at least five (5) years after termination/expiration of this Agreement or any amendments thereto. If coverage is canceled or non -renewed, and not replaced with another claims -made policy form with a retroactive date prior to this Agreement's effective date, the Operator must purchase an extended period coverage for a minimum of five (5) years after termination/ expiration of this Agreement. The CPL policy shall include coverage for cleanup costs, third -party bodily injury and property damage, including loss of use of damaged property or of property that has not been physically injured or destroyed, resulting from pollution conditions caused by contracting operations. Coverage as required in this paragraph shall apply to sudden and non -sudden pollution conditions resulting from the escape or release of smoke, vapors, fumes, acids, alkalis, toxic chemicals, liquids, or gases, waste materials, or other irritants, contaminants, or pollutants. The CPL shall also provide coverage for transportation and off -Site disposal of materials. The policy shall not contain any provision or exclusion (including any so-called "insured versus insured" exclusion or "cross -liability" exclusion) the effect of which would be to prevent, bar, or otherwise preclude any insured or additional insured under the policy from making a claim which would otherwise be covered by such policy on the grounds that the claim is brought by an insured or additional insured against an insured or additional insured under the policy.
18.4 Other Insurance Requirements
The insurance policies are to contain, or be endorsed to contain, the following provisions:
(A) Waiver of Subrogation. Without limiting the generality of Section 17.3 above, all insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Operator or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Operator hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its subconsultants.
14 20-477
(B) Additional Insured Status. All liability policies including general liability, excess liability, pollution liability, and automobile liability, if required, shall provide or be endorsed to provide that City and its officers, officials, employees, and agents shall be included as insureds under such policies.
(C) Primary and Non Contributory. All liability coverage shall apply on a primary basis and shall not require contribution from any insurance or self-insurance maintained by City. (D) Notice of Cancellation. All policies shall provide City with thirty (30) calendar days notice of cancellation (except for nonpayment for which ten (10) calendar days notice is required) or nonrenewal of coverage for each required coverage. Such notice shall be sent to:
CITY OF NEWPORT BEACH
Public Works Director
P.O. Box 1768
100 Civic Center Drive
Newport Beach, CA 92660
18.5 Additional Agreements Between the Parties
The Parties hereby agree to the following:
(A) Evidence of Insurance. Operator shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation and other endorsements as specified herein for each coverage. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. City reserves the right to require complete, certified copies of all required insurance policies, at any time. (B) City's Right to Revise Requirements. City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving Operator sixty (60) calendar days advance written notice of such change. If such change results in substantial additional cost to Operator, City and Operator may renegotiate Operator's compensation. Additionally, Operator shall obtain the written consent of the City's Risk Manager prior to changing insurers providing insurance under this Agreement, which consent shall not be unreasonably withheld or unreasonably delayed. (C) Right to Review Subcontracts. Operator agrees that in the event performance of any service is delegated to a subcontractor, Operator shall require such subcontractor to provide statutory workers' compensation insurance and employer's liability insurance for all of the subcontractor's employees engaged in the work related to this Agreement. The liability coverage required in Section 17.3(B), (C) and (D) shall cover all subcontractors or the subcontractor must furnish evidence of insurance provided by its meeting all of the 15 20-478
requirements of Section 17. Upon request, all agreements with subcontractors or others with whom Operator enters into contracts with shall be submitted to City for review. Failure of City to request copies of such agreements will not impose any liability on City, or its employees. (D) Enforcement of Agreement Provisions. Operator acknowledges and agrees that any actual or alleged failure on the part of City to inform Operator of non-compliance with any requirement imposes no additional obligations on City nor does it waive any rights hereunder. (E) Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type.
(F) Self-insured Retentions. Any self-insured retentions must be declared to and approved by City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible. Self-insurance will not be considered to comply with these requirements unless approved by City.
(G) City Remedies for Non -Compliance If Operator or any subcontractor fails to provide and maintain insurance as required herein, then City shall have the right but not the obligation, to purchase such insurance at Operator's expense, to terminate this Agreement, or to suspend Operator's right to proceed until proper evidence of insurance is provided. Any amounts paid by City shall, at City's sole option, be deducted from amounts payable to Operator pursuant to the Residential Agreement or reimbursed by Operator upon demand. Alternatively, the City may treat Operator or subcontractor's failure to provide and maintain insurance as a default and exercise its rights as set forth in Section 19 of this Agreement. (H) Timely Notice of Claims. Operator shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Operator's performance under this Contract, and that involve or may involve coverage under any of the required liability policies.
City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. (1) Operator's Insurance. Operator shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Work.
16 20-479
19. Responsibility for Damages and Injury/Indemnification
19.1 Operator Responsibility
Operator shall be responsible for any damages caused as a result of Operator's acts or omissions including, but not limited to injuries to or death of any person or damage to public and/or private property and damages to public improvements as a result of Operator's operation of the Station.
19.2 General Indemnification
Operator shall indemnify, defend and hold harmless, City, its elected or appointed officials, officers, employees, agents, consultants, volunteers, affiliates, assignees, representatives, attorneys, subsidiaries, and affiliated entities and their respective successors, heirs and assigns (collectively, "Indemnified Parties") from and against any and all claims (individually "a claim", collectively "claims"), including without limitation, claims for bodily injury, death or damage to property, demands, obligations, damages, actions, causes of action, suits, losses, judgements, fines, penalties, liabilities, costs and expenses, (including, without limitation, attorney's fees, disbursements, and court costs) of any kind and nature whatsoever which may arise from or be in any way related directly or indirectly to City entering into this Agreement with Operator, Operator's breach of its obligations under this Agreement, or Operator's performance of, or its failure to perform, its obligations under this Agreement. The foregoing indemnity shall not apply to the extent that the claim is caused by the sole negligence, active negligence or the willful misconduct of the Indemnified Parties, but shall apply if the claim is caused by the joint negligence of Operator and other Persons. Upon the occurrence of any claim, Operator, at Operator's sole cost and expense, shall defend (with attorneys reasonably acceptable to City) City, its officers, employees and agents. Nothing in this indemnity shall be construed as authorizing an award of attorney's fees in any action on, or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of the indemnification to be provided by Operator. Operator's duty to indemnify and defend shall survive the expiration or earlier termination of this Agreement.
Subject to the scope of this indemnification and upon demand of the City, made by and through the City Attorney, Operator shall protect City and appear in and defend the Indemnified Parties in any claims by third parties, whether judicial, quasi-judicial or administrative, including, but not limited to, (i) disputes and litigation over the definition of "Municipal Solid Waste", "Recyclable Materials", Food Scraps" or "Green Waste"; (ii) any claim concerning the validity of City entering into this Agreement or any ordinance or action based thereon, as well as the limits of City's authority with respect to entering into agreements, including the process for the award and approval of agreements, exclusive or otherwise; (iii) involving the operation of the Station, arising out of the exercise of this Agreement by Operator; (iv) claims by other entities disputing the rights and privileges granted by City in this Agreement; or (v) as specified under the provisions of Section 19.3 of this Agreement concerning Hazardous Waste. City and Operator agree to confer following any trial as to whether to appeal, or to 17 20-480
oppose any appeal. Should either City or Operator decide to appeal, or to oppose appeal, and the other decide not to appeal or oppose appeal, the party which decides to appeal, or oppose appeal, shall bear all fees and costs of the appeal or the opposition to the appeal.
19.3 Hazardous Substances Indemnification
Operator shall indemnify the Indemnified Parties from and against all claims, actual damages including, but not limited to, special and consequential damages, natural resource damage, punitive damages, injuries, costs, response, remediation, and removal costs, losses, demands, debts, liens, liabilities, causes of action, suits, legal or administrative proceedings, interest, fines, charges, penalties and expenses attorneys' and expert witness fees and costs incurred in connection with defending against any of the foregoing or in enforcing this indemnity of any kind whatsoever paid, incurred or suffered by, or asserted against, the Indemnified Parties or Operator arising directly or indirectly from or caused by any of the following: (i) the violation of any environmental laws or the failure to clean up and mitigate the consequences of the spill or release of any Hazardous Substance; and (ii) Operator's activities under this Agreement concerning any Hazardous Substance at any place where Operator stores or disposes of solid or Hazardous Waste pursuant to this Agreement, or preceding Agreements between City and Operator. The foregoing indemnity is intended to operate as an agreement pursuant to the Comprehensive Environmental Response, Compensation and Liability Act
42. U.S.C. Section 9607(e) and any amendments thereto; California Health and Safety Code Section 25364, to insure, protect, hold harmless, and indemnify City from liability.
19.4 Intellectual Property Indemnity
Operator shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement of any United States' letters patent, trademark or copyright infringement.
19.5 Notice of Claim
City agrees to give notice to Operator when the City receives a claim for damages or other liability for which Operator has provided indemnification under this Agreement.
20. Default/Termination
The following list of events shall constitute an event of default by the Operator. This is not an exclusive list of defaults and failure to perform other Agreement terms may be considered material. (A) Fraud or Deceit or Misrepresentation. If Operator engages in, or attempts to practice, any fraud or deceit upon City or makes a misrepresentation regarding information to City. (B) Insolvency or Bankruptcy. If Operator becomes insolvent, unable, or unwilling to pay its debts, files a bankruptcy petition or takes steps to liquidate its assets. 20-481
(C) Failure to Maintain Coverage. If Operator fails to provide or maintain in full force and effect all insurance coverage (general liability, automotive, Workers' Compensation and pollution) as required under this Agreement.
(D) Violations of Regulation. If Operator violates any orders or filings of any regulatory body having jurisdiction over Operator relative to this Agreement, provided that Operator may contest any such orders or filings by appropriate proceedings conducted in good faith, in which case no breach of this Agreement shall be deemed to have occurred until a final decision adverse to Operator is entered.
(E) Failure to Cooperate with Audits. Failure to complete, perform or cooperate with any audit as described by this Agreement.
(F) Failure to Submit Reports or Documentation. Failure to complete or to provide required reports or documents to City as required by this Agreement. (G)
Acts or Omissions.
(i) Any act or omission by Operator relative to the services provided under this Agreement which violates the terms, conditions, or requirements of this Agreement, or AB 939 (Public Resources Code Section 40000 et seq.), or any law, statute, ordinance, order, directive, rule, or regulation issued pursuant to AB 939 shall constitute a default by Operator. Any failure to correct or remedy any such violation within the time set in the written notice of the violation or, if Operator cannot reasonably correct or remedy the breach within the time set forth in such notice, if Operator should fail to commence to correct or remedy such violation within the time set forth in such notice and diligently effect such correction or remedy thereafter shall constitute a default by Operator. (ii) Any situation in which Operator or any of its officers, directors or employees are found guilty of any crime related to the performance of this Agreement, or of any crime related to anti-trust activities, illegal transport or disposal of Hazardous Waste or toxic materials, or bribery of public officials shall constitute a default by Operator. The term "found guilty" shall be deemed to include any judicial determination that Operator or any of Operator's officers, directors or employees is guilty as well as any admission of guilt by Operator or any of Operator's officers, directors or employees including, but not limited to, the plea of "guilty" "nolo contendere" "no contest" and "guilty to a lesser charge".
(H) False or Misleading Statements. Any representation or disclosure made to City by Operator in connection with or as an inducement to entering into this Agreement, or any future amendment to this Agreement, which proves to be false or misleading in any material respect 19 20-482
as of the time such representation or disclosure is made, whether or not any such representation or disclosure appears as part of this Agreement. (1) Attachment. The seizure of, attachment of, or levy on, the operating equipment of Operator, including, without limits, its equipment, maintenance or office facilities, or any part thereof.
(J) Suspension or Termination of Service. If Operator ceases to provide all or a portion of the services at the Station as required under this Agreement for a period of two (2) consecutive calendar days or more, or seven (7) calendar days for a labor dispute. (K) Commingling of Recyclable Materials and/or Food Scraps/Green Waste Municipal Solid Waste/Landfilling of Recyclable Materials and/or Food Scraps/Leen Waste. If Operator transports Recyclable Materials, Food Scraps, and/or Green Waste to a landfill or other location at which the material will not be diverted from landfilling.
21. Right to Terminate Upon Default and Right to Specific Performance Upon any Operator default, City shall have the right to suspend or terminate this Agreement. Such suspension shall be effective ten (10) days after City has given notice of suspension or termination to Operator, except that such notice may be effective immediately if the Operator's Default is one which endangers the health, welfare or safety of the public. Notice may be given by the City orally, in- person, or by telephone to Operator's designated representative. Written confirmation of such oral notice of suspension or termination shall be sent by personal delivery, electronic mail, facsimile, or other expedited means of delivery to Operator within twenty-four hours of the oral notification.
City's right to terminate this Agreement is not exclusive, and City's termination of this Agreement shall not constitute an election of remedies. Instead, such remedies shall be in addition to any and all other legal and equitable rights and remedies which City may have.
By virtue of the nature of this Agreement, the urgency of timely continuous and high quality service, the time required to effect alternative service, and the rights granted by City to Operator, the remedy of damages for a breach hereof by Operator is inadequate and City shall be entitled to seek injunctive relief and/or specific performance of any breach of this Agreement.
22. Assignment
Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written 20 20-483
approval of City, subject to the requirements of this section. Any assignment, transfer or subcontracting made without the consent of City shall be void and the attempted assignment shall constitute an Operator Default. The decision of the City as to whether or not to agree to any assignment shall be final. For the purpose of this Agreement, "assignment" shall include, but not be limited to: (i) a sale, exchange or other transfer to a third party of substantially all of Operator's assets dedicated to service under this Agreement; (ii) a sale, exchange or other transfer of outstanding common stock of Operator, to a third party which results in a change of control of Operator; (iii) any dissolution, reorganization, consolidation, merger, re -capitalization, stock issuance or reissuance, voting trust, pooling agreement, escrow arrangement, liquidation or other transaction which results in a change of ownership or control of Operator; (iv) any assignment by operation of law, including insolvency or bankruptcy, an assignment for the benefit of creditors, a writ of attachment for an execution being levied against this Agreement, appointment of a receiver taking possession of Operator's property, or transfer occurring in the event of a probate proceeding; and (v) any combination of the foregoing (whether or not in related or contemporaneous transactions) which has the effect of any such transfer or change of ownership, or change of control of Operator.
Operator acknowledges that this Agreement involved rendering a vital service to City, and that City has selected Operator to perform the services specified herein based on (1) Operator's experience, skill and reputation for conducting its Station services in a safe, effective and responsible fashion, at all times in keeping with applicable environmental laws, regulations and best solid waste management practices, and (2) Operator's financial resources to maintain the required equipment and to support its indemnity obligations to City under this Agreement. City has relied on each of these factors, among others, in choosing Operator to perform the services to be rendered by Operator under this Agreement.
If Operator requests City's consideration of and consent to an assignment, City may deny or approve such request in its sole and absolute discretion. Any request for an assignment must be approved by the City Manager, and no request by Operator for consent to an assignment need be considered by City unless and until Operator has met (or with respect to matters that would only occur upon completion of the assignment if approved, made reasonable assurances that it will meet) the following requirements:
(A) Operator shall pay City its reasonable expenses for consultants, attorney's fees and investigation costs necessary to investigate the suitability of any proposed assignee, and to review and finalize any documentation required as a condition for approving any such assignment. An advance payment towards expenses may be requested by City prior to City consideration of any assignment request and Operator shall be responsible to pay all costs incurred by City in considering a request for assignment, including those in excess of the aforesaid deposit amount, regardless of whether City consents to the assignment. (B) Operator shall furnish City with audited financial statements for itself, and the proposed assignee's operations for the immediately preceding three (3) operating years. 21 20-484
(C) A pro forma financial statement (income statement and balance sheet) for the proposed assignee with the projected results of operations assuming that the assignment is completed.
Such pro forma financial statement shall reflect any debt to be incurred by the assignee as part of the acquisition of Operator's operations.
(D) Operator shall furnish City with satisfactory proof: (i) that the proposed assignee has at least ten (10) years of solid waste management experience on a scale equal to or exceeding the scale of operations conducted by Operator under this Agreement; (ii) that in the last five (5) years, the proposed assignee has not suffered any significant citations or other censure from any federal, state or local agency having jurisdiction over its solid waste management operations due to any significant failure to comply with state, federal or local environmental laws and that the assignee has provided City with a complete list of any such citations and censures; (iii) that the proposed assignee has at all times conducted its operations in an environmentally safe and conscientious fashion; (iv) that the proposed assignee conducts its solid waste management practices in accordance with sound solid waste management practices in full compliance with all federal, state and local laws regulating the transfer and transportation of Municipal Solid Waste, Recyclable Materials and Food Scraps/Green Waste including Hazardous Substances; and, (v) of any other information required by City to ensure the proposed assignee can fulfill the terms of this Agreement in a timely, safe and effective manner.
Under no circumstances shall City be obliged to consider any proposed assignment by City if Operator is in default at any time during the period of consideration. Should City consent to any assignment request, such assignment shall not take effect until all conditions relating to City's approval have been met.
23. Subcontractors
The Parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Operator. Assignments of any or all rights, duties or obligations of the Operator under this Agreement may be permitted only with the express written consent of City. Operator shall not subcontract any portion of the work to be performed under this Agreement without the prior written authorization of City.
24. Confidentiality
All documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential by Operator unless City authorizes in writing the release of information. Operator's required reports to the Local Enforcement Agency and CalRecycle and any other regulatory agency having jurisdiction over the Station do not require prior approval by City. The reports, records and other information submitted (or required to be submitted) by Operator to City are public records within the meaning of that term in the California Public Records Act, 22 20-485
Government Code Section 6250 et seq. Unless a particular record is exempted from disclosure by the California Public Records Act, it must be disclosed to the public by the City upon request.
25. Conflicts of Interest
Operator or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act"), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest.
If subject to the Act, Operator shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Operator shall indemnify and hold harmless City for any and all claims for damages resulting from Operator's violation of this Section.
26. Notices
All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first-class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Operator to City shall be addressed to City at:
Public Works Director
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA, 92658
Phone: 949-644-3311 Fax: 949-644-3318
All notices, demands, requests or approvals from City to Operator shall be addressed to Operator at:
Attention: Chip Monaco, Regional Vice President
CR&R Incorporated
11292 Western Avenue
Stanton, California 90680
Phone: (714) 826-9049 Fax: (714) 890-6347
27. Compliance With All Laws
Operator shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. Operator shall conform to all applicable provisions of State and Federal 23 law, including applicable provisions of the California Labor Code and the Federal Fair Labor Standards Act. In addition, all work performed by Operator shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City.
28. Waiver
A waiver by either Party of any breach of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character.
29. Integrated Contract
This Agreement represents the full and complete understanding of every kind or nature whatsoever between the Parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. All exhibits referenced in this Agreement are incorporated by reference.
30. Interpretation
The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either Party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply.
31. Amendments
This Agreement may be modified or amended only by written agreement between Operator and the City approved as to form by the City Attorney.
32. Severability
If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect.
33. Controlling Law and Venue
The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange.
24 20-487
34. Equal Opportunity Employment
Operator represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age.
35. No Attorneys' Fees
In the event of any dispute or action arising under this Agreement the prevailing party shall not be entitled to attorneys' fees.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the day and year first written above.
APPROVED AS TO FORM:
By:
Aaron C. Harp
City Attorney
ATTEST:
By:
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
California municipal corporation
By:
Kevin Muldoon, Mayor
OPERATOR:
By:
(Corporate Officer)
Title:
Print Name:
By:
(Financial Officer)
Title:
Print Name:
25 Exhibit "A"
Transfer Station Legal Description & Depiction
Legal Description
All that certain real property situated in the County of Orange, State of California, described as follows. to -wit:
Beginning at a point 30 feet South 50° East of a point 30 feet South 40° West of the North corner of Lot One hundred sixty-nine (169) in Block Two (2) of Irvine's Subdivision of the Ranchos San Joaquin, Lomas de Santiago and Flint and Bixby Allotment in the Rancho Santiago de Santa Ana, as shown on a Map recorded in Book 1, page 88 of Miscellaneous Maps, records of Orange County, California, thence South 50° East and parallel to the North-east line of said Lot 169, 809.5 feet, more or less, to a point on the West right of way line of the Southern Pacific Railroad; thence Southerly along said right of way line 479 feet; thence North 500 West and parallel to the North-east line of said Lot 169, thence North 401 East and parallel to the North-west line of said Lot 169, 451 feet to the point of beginning, containing 10 acres, more or less.
26 20-489
27 20-490
Exhibit "B"
Solid Waste Facility Permit No. 30 -AB -0361
W.
20-491
SOLID WASTE FACILITY PERMIT
1. Name and Street Address of Facility:
City of Newport Beach Transfer Station
592 Superior Avenue
Newport Beach, CA 92663
4.Specifications:
2. Name and Mailing Address of Operator:
CR&R Incorporated
11292 Western Avenue
Stanton, CA 90680
Facility Number:
Kip : IxN]
3. Name and Mailing Address of Owner:
—City of Newnnrt Beach
3300 Newport Boulevard
P.O. Box 1768
Newport Beach, CA 92658-8915
a. Permitted operations: D Solid Waste Disposal Site D Transformation Facility Z,J Transfer/Processing Facility (MRF) 0 Other: — — — — — — — — D Composting Facility (MSW/green material/C&G)
b. Permitted Hours of operation: Material Acceptance/Processing/Transfer/Equipment and Facility Maintenance 6:30 am to 4:00 pm, Monday through Friday
7:00 am to 4:30 pm, Saturday
7:00 am to 11 :00 am, Sunday (Material Transfer from the Facility only and Limited to a Maximum of 15 Sundays per Calendar Year)
300 Tons per Da
8.201
c.Permitted Maximum
Tonnage:
d. Key Design Parameters (Detailed parameters are shown on site plans bearing EA and CalRecycle validations):
Permitted Area (in acres)
Total Transfer/Processing
1.0 Design Capacity (cu.yds) 1 1 720<z)
Upon a significant change in design or operation from that described herein, this permit is subject to revocation or suspension. The stipulated permit findings and conditions are integral parts of this permit & supersede the conditions of any previously issued permit. (I) The 8.2 acres is referred to the Corporation Yard operated by the City ofNewport Beach which contains the I -acre transfer station and other General Service divisions such as Storm Drain/Street Sweeping Division, Beach Maintenance Division, etc. (2) Permitted storage capacity source is Negative Declaration (SCH No. 1990010863). The storage capacity was defined as 180 tons. Converted at 4 cubic yards per ton, this equates to 720 cubic yards.
20-492
5. Approval:
LizaF
Director, Environmental Health
6. Enforcement Agency Name and Address:
County of Orange/Health Care Agency
Environmental Health
Solid Waste Local Enforcement Agency
1241 E. Dyer Road, Suite 120
Santa Ana, CA 92705
7. Date Received by CalRecycle: January 19, 2019 1 8. CalRecycle Concurrence Date: February 15, 2019
9. Permit Issued Date:
February 28, 2019
10. Permit Review Due Date:
February 28, 2024
30 11. Owner/Operator Transfer Date: